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COURT OF APPEALS
DECISION
DATED AND FILED
July 27, 2010
A. John Voelker
Acting 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
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Delavago K. Moore,
Defendant-Appellant.
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APPEAL
from a judgment and orders of the circuit court for Milwaukee County: dennis
r. cimpl, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Delavago K. Moore appeals pro se from a judgment of conviction for
attempted burglary and from two postconviction orders denying his sentence
modification motions. The issue is whether the trial court
erroneously exercised its sentencing discretion by imposing the sentence to run
consecutive to a revocation reconfinement period for a reason that Moore claims did not
necessarily support the imposition of a consecutive sentence. We conclude that the trial court properly
exercised its sentencing discretion by considering the primary sentencing
factors and explaining why its sentence met the minimum custody standard, and
why it was imposed to run consecutive to another sentence. Therefore, we affirm.
¶2 Moore
pled guilty to attempted burglary as a party to the crime, in violation of Wis. Stat. §§ 943.10(1m)(a) (2007-08),
939.32 (2007-08), and 939.05 (2007-08), for cutting the locks on approximately
thirty storage lockers in a public storage facility. The trial court imposed a three-year
sentence, comprised of one- and two-year respective periods of initial
confinement and extended supervision to run consecutive to a reconfinement
period of two years and six months imposed for revocation of Moore’s extended supervision as a result of
this incident.
¶3 The month after sentence was imposed, Moore moved for sentence modification,
complaining that the trial court did not provide sufficient reasons for its
sentence, principally for its imposition of a consecutive sentence. The trial court denied the motion because Moore mischaracterized an erroneous exercise of discretion
claim as a new sentencing factor, and because the sentencing hearing had not
yet been transcribed; thus the trial court could not “intelligently evaluate [Moore’s erroneous
exercise] claim.” Moore renewed his challenge a month later;
the trial court also denied that motion, incorporating by reference its previous
order.
¶4 On appeal, Moore’s
principal challenge is to the imposition of a consecutive sentence. He also claims that the trial court had the
transcript, nullifying its reason for denying his renewed motion. Incident to his principal challenge, Moore also contends that
the trial court erroneously exercised its discretion by allegedly failing to
provide what he considers an adequate explanation for the sentence,
particularly about why a period of confinement was necessary to satisfy the
minimum custody requirement.
¶5 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 Wis. 2d
412, 427, 415 N.W.2d 535 (Ct. App. 1987).
The weight the trial court accords each factor is a discretionary
determination. Ocanas v. State, 70 Wis. 2d 179, 185,
233 N.W.2d 457 (1975). The trial court
should also explain how the confinement term meets the minimum custody
standard. See State v. Gallion,
2004 WI 42, ¶23, 270 Wis.
2d 535, 678 N.W.2d 197. Whether to
impose consecutive or concurrent sentences is also discretionary. See Cunningham v. State, 76 Wis. 2d 277, 284-85, 251
N.W.2d 65 (1977). The trial court’s
obligation is to consider the primary sentencing factors and to exercise its
discretion in imposing a reasoned and reasonable sentence. See Larsen, 141 Wis. 2d at
426-28. That the trial court could have
exercised its discretion differently does not constitute an erroneous exercise
of discretion. See Hartung v.
Hartung, 102 Wis. 2d
58, 66, 306 N.W.2d 16 (1981) (our inquiry is whether discretion was exercised,
not whether it could have been exercised differently).
¶6 Preliminarily, whether a
transcript of the sentencing hearing had been filed with the trial court when Moore filed his motion is
no longer consequential because our review of the sentencing transcript demonstrates
that the trial court properly exercised its sentencing discretion. Moore’s
principal complaint is that the trial court’s reason for imposing the sentence
to run consecutive to the reconfinement period was the need for additional
supervision. We first refute Moore’s other challenges
to the trial court’s exercise of discretion to provide context to our
conclusion that sentencing discretion was properly exercised.
¶7 The trial court considered the primary sentencing
factors. The trial court considered the
gravity of the offense and characterized the attempted burglary as “very
serious” because it was classified as a felony.
The trial court explained that people use storage lockers as a temporary
place to keep their belongings safe. Moore violated the
victims’ reasonable expectation of safety for their belongings by unlawfully
breaking into these lockers. The trial
court considered Moore’s
character. It noted his age, his
educational level, his problems with alcohol and drugs, and his prior record,
namely that this conviction was Moore’s
fifth felony. It considered the need to
protect the community from a five‑time felon who entered a storage
facility and tampered with people’s storage lockers.
¶8 Moore
complains that the trial court did not properly explain why a period of initial
confinement was necessary. We
disagree. The trial court was troubled
that Moore
committed this offense while on extended supervision for another offense. It considered his prior record, which it
surmised would have been worse had Moore
not spent considerable time incarcerated.
As it told Moore,
“to [not] give you a prison sentence after … your fifth felony would unduly
depreciate the seriousness of this offense.”
The trial court’s refusal to unduly depreciate the seriousness of Moore’s attempted burglary
satisfies the minimum custody standard.
¶9 Moore’s
principal challenge is to the imposition of a consecutive sentence. The trial court expressly told Moore that:
While you are on extended
supervision, you are going to have conditions.
You had them before. You have got
no more extended supervision left.
Frankly, that is another reason why I’m going to give you a consecutive
term. Because I think when you get out
of prison, you should be under … the Probation Department[’s supervision] and
maybe they can do what they failed to do the last time [because you committed
another crime while released on extended supervision].
¶10 The trial court told Moore one
of the reasons it imposed a consecutive sentence: it wanted Moore supervised. Moore
had been supervised previously; that supervision was unsuccessful in that he
committed a new crime. The trial court
explained why it sought supervision for Moore, who had now committed his fifth
felony. Had it imposed the sentence to
run concurrent to the reconfinement period, Moore would have had “no more [than six
months of] extended supervision left.”
During his allocution, Moore expressed hope that he eventually would
“[g]et some work release and get some financial stability when I get out and do
my … program … [so] I eventually can make it to and hopefully have some type
of, have more focus upon doing things and being successful in society, doing
things right.” As the trial court
explained, in response to Moore’s hope and his
contention that the probation department did not do its job when he was
previously released to extended supervision, “[the trial court is] going to
give [the Probation Department] another chance, because [it] can’t let [Moore] out of prison with
nothing [in terms of supervision].
Because if [there is no supervision, Moore] will end up right back there [in
prison].”
¶11 The trial court considered the proper factors and explained why
it imposed confinement, and the importance of extended supervision; it also
responded to Moore’s
expressed concerns. It explained how its
sentence met the minimum custody requirement, and why it imposed the sentence
to run consecutive to the reconfinement period Moore was already serving. The trial court properly exercised its
sentencing discretion and imposed a reasoned and reasonable sentence; that it
could have imposed a different sentence or a concurrent structure is not an
erroneous exercise of discretion.
By the Court.—Judgment and orders
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.