COURT OF APPEALS DECISION DATED AND FILED February 1, 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. Michael Ralph Madden, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Michael Ralph Madden appeals from a judgment of conviction and an order denying his postconviction motion seeking sentence modification. Madden argues that his sentence should be reduced because a presentence investigation report was not prepared and as a result, the circuit court did not properly account for his mental health issues and other sentencing factors. We disagree and affirm.
Background
¶2 Madden was charged with two counts of armed robbery with a reasonable belief that he used a threat of force, Class C Felonies. See Wis. Stat. § 943.32(1)(b), (2) (2007-08).[1] One of the counts was later amended to robbery with the threat of force, a Class E Felony. See § 943.32(1)(b). The complaint alleged that Madden robbed two banks shortly after being released from prison—with one of the robberies occurring the same day as his release.
¶3 Madden initially pled not guilty by reason of mental disease or defect. The evaluating doctor, however, found that Madden’s mental state at the time of the crimes would not support that plea.
¶4 Madden subsequently pled guilty to two counts of robbery with the threat of force and the matter proceeded to sentencing. On each count, the circuit court imposed terms of imprisonment consisting of five years of initial confinement and five years of extended supervision. The sentences were ordered to run consecutively to each other and to any other sentence Madden was serving at the time.
¶5 On December 17, 2009, ten months after his sentencing hearing, Madden filed a postconviction motion seeking sentence modification on grounds that the court did not have the benefit of a presentence investigation report, and as such, was not fully aware of the extent of his mental health problems. The circuit court denied Madden’s motion after concluding that it was conclusory as to what additional information a presentence investigation report would have provided.
¶6 On February 24, 2010, Madden filed a brief in support of his prior motion seeking sentence modification. With his brief, Madden submitted various psychiatric evaluations from 2003 and 2005 setting forth mental health diagnoses of which, he claimed, the circuit court was not fully informed. He argued that his mental health history, as detailed in the evaluations, presented a new factor warranting sentence modification. The circuit court denied Madden’s motion, and this appeal follows.
Analysis
A. Timeliness/New Factor
¶7 At the outset, we address the State’s contention that Madden’s motion for sentence modification was untimely.
¶8 There are two ways for a defendant to seek sentence
modification. State v. Noll, 2002 WI
App 273, ¶9, 258
¶9 The second route a defendant may take to seek sentence
modification is to submit a motion requesting that the circuit court exercise
its inherent authority to modify a sentence based on new factors. Noll, 258
¶10 Madden does not refute the State’s argument that he failed to timely file his motion pursuant to Wis. Stat. § 973.19. Instead, he seeks to establish a new factor. In his reply brief, Madden asserts that his appellate counsel did not received the mental health records indicating that Madden had multiple mental health diagnoses of which the court was not fully informed until after his initial motion seeking postconviction relief was denied.[2]
¶11 A “‘new factor’ refers to a fact or set of facts highly
relevant to the imposition of sentence, but not known to the trial judge at the
time of original sentencing, either because it was not then in existence or
because ... it was unknowingly overlooked by all of the parties.” State v. Kluck, 210
¶12 In its order denying Madden’s motion, the circuit court explained that it was aware of Madden’s mental health history—at sentencing, Madden’s counsel advised the court that Madden had been diagnosed with schizo-affective disorder and mood disorder at the age of twenty-two and had been on medication ever since.[3] In addition, at the time of Madden’s sentencing, the court had reviewed the evaluating doctor’s report that was prepared in conjunction with Madden’s plea of not guilty by reason of mental disease or defect. In his report, the doctor indicated that Madden knew right from wrong, even though he may have been suffering from a mental disease at the time of the robberies. Moreover, we note that Madden would have been aware of his mental health issues and could have brought the hospitalizations and psychiatric evaluations in 2003 and 2005, of which he claims the court was not aware, to the court’s attention. Based on the foregoing, the circuit court properly concluded that although the additional reports may have revealed more about the nature of Madden’s mental illness, they did not constitute a new factor warranting sentencing modification.
B.
Exercise of Sentencing Discretion
¶13 Even if Madden’s motion had been timely filed, we nevertheless
conclude that the circuit court properly exercised its discretion in sentencing
him. In reviewing a circuit court’s
exercise of its sentencing discretion, our standard of review requires us to
“start with the presumption that the circuit court acted reasonably.” State v. Lechner, 217
¶14 The circuit court must consider the primary sentencing factors
of “the gravity of the offense, the character of the defendant, and the need to
protect the public.” State
v. Ziegler, 2006 WI App 49, ¶23, 289
¶15 The circuit court complied with its obligations here. In sentencing Madden, the court noted that he had used money from the robberies to purchase drugs and alcohol and that one of the robberies was committed on the same day he was released from prison. The court considered the crimes to be serious and noted that an employee at one of the banks Madden robbed believed Madden had a taser gun. It factored in the effect of the crimes on victims, indicating that these were people who were “just doing their jobs” and that as a result of Madden’s actions, one of the victims has trouble sleeping, difficulty focusing, and feels nervous when unknown customers enter the building. In terms of the need to protect the public, the court stated that people need to know that when they are at their job, they are safe. The court found that it would unduly depreciate the seriousness of the offenses if it did not impose consecutive sentences. It referenced Madden’s lengthy criminal record and the way the crimes had progressed over the years in terms of severity. The court acknowledged Madden’s mental health and drug problems, but found that Madden was “using them as a crutch.” The court did, however, give Madden credit for his remorse and for taking responsibility for the crimes. It did not erroneously exercise its sentencing discretion.
¶16 Madden argues the circuit court insufficiently accounted for
his mental health by not having a presentence investigation report
prepared. As persuasive authority,
Madden relies on a program requiring trial judges to order AIM (Assess, Inform,
Measure) Reports in
¶17 First, a sentencing court has no obligation to order a
presentence investigation report, and the decision to order one is
discretionary. State v.
¶18 We also reject Madden’s contention that the sentence was unduly
harsh. A sentence is unduly harsh 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.’” State v. Grindemann, 2002 WI App
106, ¶31, 255
C. Ineffective Assistance
¶19 To the extent Madden is arguing he received ineffective
assistance of counsel because his attorney failed to request a presentence
investigation report, his claim fails. “‘To
prevail on an ineffective assistance of counsel claim, the defendant must show
that counsel’s actions or inaction constituted deficient performance and that
the deficiency caused him prejudice.’” State
v. Love, 2005 WI 116, ¶30, 284
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.