COURT OF APPEALS DECISION DATED AND FILED November 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. |
Cir. Ct. No. 2009CF4286 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Jack A. Kasprzak, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Milwaukee County: david l. borowski, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Jack A. Kasprzak appeals from a judgment of conviction and a
postconviction order denying sentence modification. He challenges the circuit court’s exercise of
sentencing discretion. We affirm.
I.
¶2 Early
one morning, Kasprzak went to the home of Janet Kasprzak, his estranged wife,
and demanded that she let him in. When
she did not comply, he opened fire with an assault rifle. Dozens of bullets shattered windows and penetrated
the doors and walls of her home and of houses nearby. Fortunately, no one suffered serious
injury. Kasprzak fled the scene, but
police located him a few blocks away and he immediately surrendered. The State charged him with three counts of first-degree
recklessly endangering safety and three counts of endangering safety by
reckless use of a firearm. He pled
guilty as charged, and the circuit court imposed an aggregate term of
twenty-four years of imprisonment, bifurcated as fifteen years of initial
confinement and nine years of extended supervision.
¶3 Kasprzak
moved for sentence modification, emphasizing some of the facts that he
highlighted at the sentencing hearing.
He reminded the circuit court that he suffers from cirrhosis of the
liver as a result of his chronic alcoholism, that he requires a liver
transplant, and that his life expectancy is short. The circuit court denied relief. Kasprzak appeals, raising a single issue,
namely, whether the circuit court properly exercised its sentencing discretion
in light of his deteriorating health and diminished life expectancy.
II.
¶4 As
Kasprzak recognizes, our standard of review is deferential. We review a circuit court’s sentencing
decision for an erroneous exercise of discretion. State v. Gallion, 2004 WI 42, ¶17,
270 Wis. 2d 535, 549, 678 N.W.2d 197, 203.
We have a “‘duty to affirm the sentence on appeal if from the facts of
record it is sustainable as a proper discretionary act.’” State v. Berggren, 2009 WI App 82,
¶44, 320 Wis. 2d 209, 239, 769 N.W.2d 110, 124 (citation omitted).
¶5 A
sentencing court must consider the three 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 Wis. 2d 594, 606, 712 N.W.2d 76, 82. The circuit court may also consider a wide
range of other factors concerning the defendant, the offense, and the
community. Gallion, 2004 WI 42, ¶43
& n.11, 270 Wis. 2d at 558 & n.11, 678 N.W.2d at 207 &
n.11. The circuit court has discretion
to determine both the factors that it believes are relevant in imposing
sentence and the weight to assign to each relevant factor. State v. Stenzel, 2004 WI App 181, ¶16,
276 Wis. 2d 224, 237, 688 N.W.2d 20, 26.
¶6 The
circuit court must “specify the objectives of the sentence on the
[R]ecord. These objectives include, but
are not limited to, the protection of the community, punishment of the
defendant, rehabilitation of the defendant, and deterrence to others.” Gallion, 2004 WI 42, ¶40, 270
Wis. 2d at 556–557, 678 N.W.2d at 207.
¶7 Kasprzak
concedes that the circuit court considered the mandatory sentencing factors and
selected appropriate sentencing objectives.
We briefly review those components of the sentencing proceeding
here.
¶8 When
discussing the gravity of the offense, the circuit court stated that Kasprzak
“created a war zone” and that the hail of penetrating gunfire on a residential
street “could have killed three people or more.” The conduct was further aggravated because
Kasprzak, a retired police officer, fired numerous shots into the door of Janet
Kasprzak’s house and blocked her escape.
Therefore, “she crawled out the bathroom window,” and as she did so “the
toilet in the bathroom ... shattered into dozens or hundreds of pieces” from
the gunfire.
¶9 The
circuit court considered Kasprzak’s character, taking into account the numerous
letters submitted by the Kasprzaks’ neighbors and acquaintances. The letters reflected, in part, that Kasprzak
had an “unhealthy desire to be with Janet [Kasprzak]” and that he had become
“more and more controlling, jealous, potentially dangerous and somewhat irrational”
as the years passed. The circuit court also
noted Kasprzak’s past acts of domestic violence.
¶10 The
circuit court discussed the need to protect the public, stating that Kasprzak’s
actions in this case “were so dangerous and so aggravated that basically
everyone in the vicinity ... random citizens, were in grave danger.” The circuit court found that Kasprzak posed a
particular risk to Janet Kasprzak and to anyone who might inadvertently “stumble
upon” a future confrontation between Kasprzak and his estranged wife.
¶11 The
circuit court found that the most important sentencing goal was “protecting the
community [from] the danger” Kasprzak presented. The circuit court also determined that
Kasprzak must be punished for his “potentially lethal” behavior.
¶12 Kasprzak
nonetheless challenges the circuit court’s exercise of sentencing discretion,
emphasizing his poor health and reduced life expectancy. We reject his contentions.
¶13 The
circuit court gave extensive consideration to Kasprzak’s medical condition and
its likely effect. Early in the
sentencing remarks, the circuit court noted that:
the health issues that Mr. Kasprzak has suffered in the last number of years[] includ[e] a stroke within the last few years, 2007 or 2008[.] [T]here [are] certainly some other issues including[] high blood pressure, those kind of issues. Most importantly, Mr. Kasprzak presents to the [c]ourt as a result, it appears, of years of drinking and alcoholism as one who is suffering from cirrhosis of the liver as noted too in a report, in the PSI, by defense counsel. Mr. Kasprzak has been in need of a transplant for a period of time.
¶14 Kasprzak
believes that the circuit court should have viewed his poor health as a
mitigating factor. “Whether a particular
factor or characteristic relating to a defendant will be construed as either a
mitigating or aggravating circumstance will depend upon the particular
defendant and the particular case.” State
v. Thompson, 172 Wis. 2d 257, 265, 493 N.W.2d 729, 733 (Ct. App.
1992). The decision rests in the circuit
court’s discretion. See id., 172
Wis. 2d at 267, 493 N.W.2d at 734.
¶15 In
this case, the circuit court explained that it viewed Kasprzak’s medical
condition as increasing his risk to reoffend.
Relying on the observation of a defense psychologist that Kasprzak’s
manner appeared “fatalistic,” the circuit court stated:
I think that Mr. Kasprzak, knowing he was not doing well, knowing he was suffering from serious effects of alcoholism, effects brought on by his own choices, knowing that he is diagnosed with cirrhosis of the liver, knowing that he may have a shorter period of time to live, maybe a very short period of time to live, Mr. Kasprzak engaged in a behavior that was somewhat fatalistic. I’ll take out Janet Kasprzak possibly take her out and kill her, because I’ll die shortly anyway. If I die in the next two months, six years, or nine months in a prison cell or in custody, what’s the difference? I’m going out and [taking] not only myself but somebody else out.
The circuit court therefore concluded that “if [Kasprzak] were released
any [time] in the near future ... he would attempt this kind of behavior again
and [Janet] Kasprzak could be killed.
Period.”
¶16 The
circuit court may base a sentence on inferences reasonably derived from the
Record. See Gallion, 2004 WI 42, ¶19, 270 Wis. 2d at 549–550, 678
N.W.2d at 203. Here, the circuit court
found that Kasprzak’s poor health and reduced life expectancy were part of the
constellation of factors that made him “incredibly dangerous,” particularly to
Janet Kasprzak. The inference is a
reasonable one and we will not disturb it.
¶17 Although
Kasprzak believes that his poor health and accompanying diminished life
expectancy warrant less confinement than the circuit court imposed, the circuit
court concluded that those factors increased the need to confine him. He is not entitled to relief merely because
the circuit court did not assess the sentencing factors in the way that he
would have preferred. Stenzel,
2004 WI App 181, ¶16, 276 Wis. 2d at 237, 688 N.W.2d at 26.
By
the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.