COURT OF APPEALS DECISION DATED AND FILED April 21, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Jeremy Westlund,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Neubauer, P.J.,
¶1 PER CURIAM. Jeremy Westlund appeals from a judgment convicting him of kidnapping and an order denying his postconviction motion to modify his sentence. He argues that the trial court failed to consider relevant factors at sentencing and then failed to correct the “unduly harsh” sentence it imposed. We disagree and affirm.
¶2 Wielding a wrench, Westlund forced his estranged wife, Jennifer, to accompany him to the grocery store where she worked, leaving her two-year-old alone at home. He made Jennifer use her manager’s code to disable the security alarm and gain access to the store’s money. Westlund later released Jennifer on a country road. Before driving off, Westlund warned Jennifer not to call the police because “I can get to [the child] before they can.”
¶3 Westlund pled guilty to one count of kidnapping, as a repeater, by use of a dangerous weapon. Three other counts—armed robbery with threat of force, false imprisonment by use of a dangerous weapon and felony intimidation of a victim by use of a dangerous weapon, all as a repeater—were dismissed and read in for sentencing. With the penalty enhancers, Westlund faced fifty-one years’ imprisonment (thirty-six years’ initial confinement/twenty-five years’ extended supervision).
¶4 The State recommended twenty-five years (ten/fifteen); the Department of Corrections (DOC) presentence investigation report (PSI) recommended sixteen to eighteen years (nine to ten/seven to eight); an independent PSI recommended eleven to thirteen years (four to five/seven to eight); and the defense recommended twelve years (four/eight). The defense argued that “character factors” listed in the private PSI[1] “weigh[ed] heavily” on the court considering its recommendation rather than the DOC’s. The court imposed an eighteen-year sentence, ten years’ initial confinement followed by eight years’ extended supervision.
¶5 Over ten months later, Westlund brought a motion to modify
his sentence. He alleged that the
sentence he received was unduly harsh because the court failed to appropriately
consider his mental health issues and childhood abuse. The State objected that the motion was
untimely. See Wis. Stat.
§ 973.19(1) (2007-08);[2]
see also Wis. Stat. Rule 809.30(2)(h).
Westlund countered that the power to modify a sentence is one of the
judiciary’s inherent powers. See State v. Crochiere, 2004 WI 78, ¶11,
273
¶6 Sentencing is committed to the trial court’s discretion, and
we limit our review to determining whether that discretion was erroneously
exercised. State v. Gallion, 2004 WI 42, ¶17, 270
¶7 The primary factors relevant to any sentencing include
protection of the community, punishment and rehabilitation of the defendant and
deterrence of others. Gallion,
270
¶8 Westlund again asserts that his sentence should have been
shorter.[3] He argues that the trial court erroneously
exercised its sentencing discretion because it did not adequately consider such
mitigating circumstances as his mental health issues and untreated childhood
traumas. Determining which factors are
most relevant, however, and the weight to assign to each factor ultimately are
both within the trial court’s exercise of discretion. Brown, 298
¶9 Moreover, the court did consider mitigating evidence. It noted that Westlund came from a “very dysfunctional family” with little parental support, was diagnosed as bipolar and suffering from depression, had AODA issues and may have been sexually assaulted as a child. The court specifically stated that Westlund’s lack of treatment for those matters was “a real concern” to it. The court concluded that despite such mitigating evidence, the serious nature of the crime and the protection of the public warranted an eighteen-year sentence. To the extent the sentence indicates the court gave more weight to aggravating factors than to mitigating factors, it acted within its discretion when it did so. See id.
¶10 Westlund next argues that the trial court erroneously exercised
its discretion by failing to exercise its inherent authority to modify his
“unduly harsh and unconscionable” sentence.
See Cresci v. State, 89
¶11 The trial court considered appropriate factors and imposed a sentence that is not unduly harsh or unconscionable. It committed no error here.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The private PSI described a violent, largely absent father and a mother who abused drugs and alcohol and left Westlund home alone for lengthy stretches when he was still very young. It indicated that Westlund was a probable victim of childhood sexual abuse and that he had not received treatment for any of the abuse or neglect.
[2] All references to the Wisconsin Statutes are to the 2007-08 version.
[3] The
State again argues that Westlund’s postconviction motion to modify his sentence
is time-barred. We have the discretion
to make exceptions to the waiver rule, see
State
v. Erickson, 227