COURT OF APPEALS DECISION DATED AND FILED February 15, 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 WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of
Plaintiff-Respondent, v. Lonnell D. Fitzpatrick,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Lonnell D. Fitzpatrick appeals from a judgment of conviction entered upon his guilty pleas to two counts of second-degree sexual assault of a child. He also appeals from an order denying his motion for postconviction relief. The only issue is whether the circuit court erroneously exercised its discretion by imposing consecutive rather than concurrent sentences for the two offenses. We reject Fitzpatrick’s arguments and affirm the judgment and order.
I.
¶2 According to the criminal complaint, Fitzpatrick and a companion approached two fifteen-year-old girls, E.S. and B.A., outside of a convenience store. Fitzpatrick took B.A.’s cell phone from her hands, then refused to return it unless he received money or sexual favors from the girls. E.S. and B.A. followed Fitzpatrick to a wooded area across the street from the store. There, Fitzpatrick forcibly engaged E.S. in both mouth-to-penis sexual intercourse and an act of penis-to-vagina sexual intercourse.
¶3 Pursuant to a plea bargain, Fitzpatrick pled guilty to two counts of second-degree sexual assault of a child. In exchange, the State agreed to recommend prison terms without specifying recommended lengths for the periods of incarceration. The State also moved to dismiss penalty enhancers alleging that he committed the offenses as a habitual criminal and to dismiss four other felony charges arising out of the incident.
¶4 At sentencing, the circuit court considered the State’s
request for prison terms of unspecified length and Fitzpatrick’s request for
concurrent
ten-year sentences. The circuit court
also considered a presentence investigation report that included a
recommendation for consecutive eighteen-year sentences. The circuit court concluded that prison terms
were appropriate, and it imposed two consecutive twenty-two year sentences,
each bifurcated as twelve years of initial confinement and ten years of
extended supervision. The circuit court
denied Fitzpatrick’s motion for resentencing relief, and he appeals.
II.
¶5 Fitzpatrick
contends that the circuit court erroneously exercised its sentencing discretion
by imposing consecutive sentences. Our
standard of review is well-settled.
Sentencing lies within the circuit court’s discretion, and appellate
review is limited to considering whether discretion was erroneously
exercised. State v. Gallion, 2004 WI
42, ¶17, 270
¶6 To
properly exercise sentencing discretion, the circuit court must consider three
primary sentencing factors, namely, “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
¶7 The
circuit court must specify the sentencing objectives on the Record.
¶8 Fitzpatrick complains
that the circuit court erred because it “failed to apply the three primary
sentencing factors to its determination of whether to impose concurrent or
consecutive sentences.” Fitzpatrick
misunderstands the circuit court’s obligations. “A [circuit] court properly
exercises its discretion in imposing consecutive or concurrent sentences by
considering the same factors as it applies in determining sentence length.” State v. Berggren, 2009 WI App 82,
¶46, 320
¶9 Here,
the circuit court thoroughly discussed the sentencing factors it considered
relevant. It found that the offenses
were “extremely serious,” noting that Fitzpatrick committed the two sexual
assaults in a public place and that the assaults victimized not only E.S. but
also “B.[A]., who was forced to watch her friend assaulted.” In considering character, the circuit court
took into account that Fitzpatrick had twenty-five prior criminal convictions,
including “various domestic abuse, assault cases, assaults with injury,
domestic abuse assault, [and] violation of a no contact” order. See
State
v. Fisher, 2005 WI App 175, ¶26, 285
¶10 The
circuit court considered a variety of additional factors. It noted that, despite evidence of past
employment, Fitzpatrick owed $30,000 in child support for his five children,
that he never completed high school, and that at times he had “earn[ed] a
living by dealing in drugs.” The circuit
court also considered evidence of Fitzpatrick’s alcohol and drug abuse and
determined that he had “severe treatment needs best addressed in a secure setting.”
¶11 The
circuit court identified protection of the community as one sentencing goal. In the circuit court’s view, Fitzpatrick
requires “long-term treatment in an institution to address [his] treatment
needs,” and he presents “a high risk to the community” until he addresses those
needs. The circuit court also determined
that the sentences must be sufficient to punish Fitzpatrick, reminding him
again that the offenses were serious and had a harmful impact on both E.S. and
B.A.
¶12 The Record reflects that the circuit court discussed relevant factors and identified appropriate sentencing objectives. In light of those considerations, the circuit court rejected Fitzpatrick’s request for concurrent sentences, explaining that “these are two separate offenses with respect to this victim. There is no reason these sentences should be concurrent.” We reject as meritless Fitzpatrick’s contention that the circuit court failed to consider proper factors when imposing consecutive sentences.
¶13 Fitzpatrick further complains, however, that the circuit court “applied a presumption of consecutive sentences ... merely because there were two different sexual acts.” In support, he fastens on to the circuit court’s statement at sentencing that “there is no reason the sentences should be concurrent” and the circuit court’s later statement when denying postconviction relief that “the particularly egregious and debasing behavior in assaulting the victim in public, not once but twice, mandated consecutive sentences.” These remarks, he contends, reflect the circuit court’s erroneous “assum[ption] that because there were two different assaults ... the sentences must be served consecutively unless there was a reason that [they] should be served concurrently.”
¶14 Fitzpatrick misconstrues the Record. The circuit court’s use of an imperative does
not suggest a belief that consecutive sentences were presumptively
required. Rather, the circuit court’s
words expressed its view that consecutive sentences were essential to meet the
goals of public protection and punishment, given the facts of the crimes and
Fitzpatrick’s extensive criminal history, treatment needs, and high risk of
reoffending. While Fitzpatrick may be
disappointed that the circuit court did not reach a different conclusion, we
are satisfied that the circuit court’s remarks reflect an appropriate exercise
of discretion. See Hartung v. Hartung, 102
¶15 Finally, we reject Fitzpatrick’s contention that the circuit
court’s decision to impose consecutive sentences is improper because it does
not comport with the ABA Standards for Criminal Justice – Sentence
§ 18.6.5(c)(1)–(ii) (3rd ed. 1994).
Those standards do not govern sentencing decisions in
By
the Court.—Judgment and
order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.