COURT OF APPEALS DECISION DATED AND FILED March 30, 2010 David
R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT I |
|||
|
|
|||
|
|
|||
State of Plaintiff-Respondent, v. Antoine V. Beard, Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Antoine V. Beard appeals from a corrected judgment of conviction for possessing a firearm as a felon and for possessing heroin with intent to deliver, and from a postconviction order denying his sentence modification motion. The issue is whether the trial court erroneously exercised its sentencing discretion when it allegedly ignored mitigating circumstances that Beard claims would have supported a lesser period of initial confinement. We conclude that the trial court properly exercised its sentencing discretion by considering the primary sentencing factors, by providing a reasoned and reasonable sentence well within the statutory maximums, and by expressly considering some of the mitigating circumstances Beard contends it ignored. Therefore, we affirm.
¶2 Beard pled guilty to possessing a firearm as a felon, in violation of Wis. Stat. § 941.29(2) (2007-08),[1] and to possessing no more than three grams of heroin with intent to deliver as a subsequent drug offense, in violation of Wis. Stat. §§ 961.41(1m)(d)1. (2007-08) and 961.48 (2007-08). For the firearm conviction, the trial court imposed a three-year sentence, comprised of two- and one-year respective periods of initial confinement and extended supervision. For the heroin conviction, the trial court imposed a six-year sentence, comprised of four- and two-year respective periods of initial confinement and extended supervision. Both sentences were imposed to run consecutive to each other and to any other sentence.
¶3 Beard sought sentence modification, contending that the trial court ignored mitigating factors and imposed a sentence that exceeded the minimum amount of custody required to meet the sentencing objectives (“minimum custody requirements”). The trial court denied the motion, explaining the specific mitigating factors it considered, most particularly Beard’s health problems, and further explained that it “was not obliged to comment on each and every mitigating factor that was offered by the defense.” Beard appeals.
¶4 The primary sentencing factors are the gravity of the
offense, the character of the offender, and the need for public
protection. State v. Larsen,
141
¶5 Beard’s complaint is not the trial court’s failure to
consider the primary sentencing factors; he complains that it emphasized the
gravity of the offenses and the protection of the community at the expense of
the mitigating aspects of his character.
Preliminarily, the emphasis the trial court places on each of the
primary sentencing factors is discretionary.
See Ocanas, 70
¶6 The trial court considered the seriousness of each of these offenses, and characterized them collectively as “aggravated because there are two matters here.” It was concerned about the dangerousness of the particular drug involved—heroin—and the involvement of a gun: a “very lethal combination” because “[g]uns and drugs in combination are a cancer in this community, and they are causing tremendous problems throughout the community, and that has to be stopped.”
¶7 The trial court expressly considered the mitigating aspects of Beard’s character, crediting him for being “cooperative with the police investigation …. [and] … accept[ing] responsibility in his statement to the police …. [and] for his conduct in coming forward and pleading on these matters.” The trial court was also mindful of Beard’s criminal history that includes convictions for drug-dealing in serious substances, including cocaine and heroin. It was particularly troubled that Beard committed these offenses while on probation for a prior offense, explaining “[t]hat doesn’t bode well for [Beard’s] rehabilitative abilities.”
¶8 The trial court not only considered Beard’s significant medical problems, but explicitly stated that it imposed a more lenient sentence because of Beard’s health. The trial court said at sentencing, and reiterated its remarks in its postconviction order:
[The trial court] think[s] that it’s important to note [Beard] has significant health problems. He’s had a knee replacement. He has cardiac problems including congestive heart failure. He has kidney problems. He has severe asthma.
….
And [the trial court] consider[s Beard’s multiple health problems]. And because of that, [the trial court is] going to reduce the sentence that [it] otherwise would have issued. [The trial court is] going to take that into account.
[Beard’s] health is going to make it more difficult for him to serve than if he didn’t have those health problems.
¶9 The trial court considered several of Beard’s mitigating factors, and expressly imposed a lesser sentence because of Beard’s combination of significant health problems. We reject Beard’s challenge that the trial court erroneously exercised its discretion and ignored various mitigating circumstances.
¶10 Beard also contends that the sentence failed to meet the
minimum custody standards. We
disagree. The trial court expressly
rejected probation as “wholly inappropriate” because Beard “was already on a
drug probation” when he committed these offenses. The trial court reasoned that Beard should
understand that his continued involvement with drugs and guns will result in
“more serious penalties” and “more … time behind bars.” The trial court properly explained why its
sentence met the minimum custody requirements.
See Gallion, 270
¶11 Beard’s remaining challenge was that the sentence imposed,
particularly the period of initial confinement, was unduly harsh. A sentence is unduly harsh, excessive and
violative of the Eighth Amendment when it is “so excessive and unusual and so
disproportionate to the offense committed as to shock public sentiment and
violate the judgment of reasonable people concerning what is right and proper
under the circumstances.” Ocanas,
70
(Ct. App. 1983); see State
v. Owen, 202
(Ct. App. 1996).
¶12 Beard implicitly realizes that he cannot meet this
challenge. Possessing a firearm as a
felon carries a maximum potential penalty of ten years. See Wis. Stat. §§ 941.29(2);
939.50(3)(g). Possessing no more than
three grams of heroin carries a maximum potential penalty of twelve years and
six months. See Wis. Stat. §§
961.41(1m)(d)1.; 939.50(3)(f). Beard was
convicted of the heroin offense as a subsequent drug offense, carrying an
additional maximum potential penalty of four years. See Wis. Stat. § 961.48(1)(b). Imposing a nine-year sentence for offenses
carrying a maximum potential penalty of twenty-six years and six months is not
excessive. See Daniels, 117
¶13 The trial court properly exercised its sentencing discretion. It considered many of the mitigating factors and expressly imposed a lesser sentence because of one of those mitigating factors, Beard’s health problems. Beard’s sentence was not an erroneous exercise of discretion, nor was it unduly harsh or excessive.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.