COURT OF APPEALS DECISION DATED AND FILED January 25, 2011 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Anthony Murphy, a/k/a Andrew Morris, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Anthony Murphy, a/k/a Andrew Morris, appeals pro se from an order that denied his motion for resentencing. He claims that his twenty-year sentence for aggravated battery while armed with a dangerous weapon is excessive because it exceeds the statutory presumptive minimum term. He further claims that the circuit court erred by failing to state how many years of his sentence were imposed for committing aggravated battery and how many years were imposed for using a dangerous weapon to commit the crime. We reject his arguments and affirm the circuit court’s order.
¶2 A jury convicted Murphy of aggravated battery while armed.[1] The trial testimony reflected that in
September 2000 he punched a woman and beat her with an electric iron. He broke her jaw and several of her teeth,
blackened her eye, fractured her hands, and choked her until she lost
consciousness. Her brain swelled, and
she required five staples to close a gash to her head. Under the law in effect at the time of the
offense, Murphy faced a maximum sentence of fifteen year of imprisonment for
committing aggravated battery and an additional five years of imprisonment for
using a dangerous weapon to commit the offense.
See Wis. Stat. §§ 940.19(5), 939.50(3)(c), 939.63(1)(a)2. (1999-2000).[2] The circuit court imposed the maximum twenty-year
sentence, bifurcated as fifteen years of initial confinement and five years of
extended supervision. Murphy appealed,
and we affirmed. State v. Murphy, No.
2001AP1817-CR, unpublished slip op.
(WI App Mar. 12, 2002).
¶3 Murphy now claims that he is imprisoned under an illegal sentence. His arguments are premised on a misreading of the applicable statute and a misunderstanding of the circuit court’s obligations at sentencing.
¶4 Pursuant to Wis. Stat. § 939.63(2), Murphy
faced a presumptive minimum sentence upon conviction of committing a felony
while armed with a dangerous weapon. The
statute provided:
[w]hoever is convicted of committing a felony while possessing, using or threatening to use a dangerous weapon shall be sentenced to a minimum term of years in prison, unless the sentencing court otherwise provides. The minimum term for the first application of this subsection is 3 years. The minimum term for any subsequent application of this subsection is 5 years. If the court places the person on probation or imposes a sentence less than the presumptive minimum sentence, it shall place its reasons for so doing on the record.
¶5 Murphy contends that Wis.
Stat. § 939.63(2) required the circuit court to impose at most
three years of imprisonment unless the circuit court gave specific reasons for imposing
a longer sentence. He is not correct. The law presumed that he would receive at
least the presumptive minimum sentence. Cf. State v. Mohr, 201
§ 939.63(2) require a separate explanation for the decision. See
id.
(“If the court ... imposes a sentence less than the presumptive minimum
sentence, it shall place its reasons for so doing on the record.”).
¶6 Moreover, the circuit court did state its reasons for imposing the maximum sentence. The court explained: “this [crime] was at the extreme end of domestic violence. If it had gone just a little bit further, [Murphy] would be in court for a homicide .... [The crime] requires the maximum sentence .... This was as cruel a beating as one human being can administer on another.”
¶7 Murphy also complains because the circuit court did not
expressly state that it was imposing a portion of the sentence pursuant to Wis. Stat. § 939.63(2). Murphy’s complaint does not allege any
error. The circuit court has no
obligation to state that its sentence includes a component imposed pursuant to a
penalty enhancer. Indeed, we have opined
that the circuit court should pronounce a sentence “without allocating any portions of the confinement imposed among
the base offense and enhancers. Such
allocation is not required by statute or case law.” State v. Kleven, 2005 WI App 66, ¶18
n.4, 280
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).
[1] The jury also convicted Murphy of resisting an officer. Murphy’s conviction and consecutive nine-month sentence for that offense are not relevant to the issues that he raises on appeal.
[2] All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
[3] The presentence investigation report, which the parties agreed accurately described Murphy’s ten prior convictions, reflected that Murphy had no history of sentencing under Wis. Stat. § 939.63(2).