COURT OF APPEALS DECISION DATED AND FILED October 19, 2004 Cornelia G. Clark 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. |
04-0443-CR |
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Cir. Ct. No.
02CF000676 02CF001044 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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State of Wisconsin, Plaintiff-Respondent, v. Tyree Goodrich, Defendant-Appellant. |
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APPEAL from judgments and an order of the circuit court
for Brown County: mark a. warpinski, Judge. Modified and, as modified, affirmed.
Before Cane, C.J., Hoover, P.J., and
Peterson, J.
¶1 PER
CURIAM. Tyree Goodrich appeals judgments, entered upon his no
contest pleas, convicting him of battery and disorderly conduct, both counts as
a repeater, and burglary to a building or dwelling. He also appeals the order denying his postconviction motion for
relief. Goodrich argues that the
circuit court erroneously exercised its sentencing discretion. We reject his arguments and affirm the
judgments and order.
¶2 In
Brown County Circuit Court case no. 02-CF-676, the State charged Goodrich with
burglary to a building or a dwelling.
In Brown County Circuit Court case no. 02-CF-1044, Goodrich was charged
with one count each of battery, disorderly conduct and felony bail jumping, all
three counts as a repeater. The felony
bail jumping charge was later dismissed.
In exchange for his no contest pleas, the State agreed to join in defense
counsel’s recommendation for twelve months’ jail time on the burglary charge
and concurrent three-year sentences on the battery and disorderly conduct
charges. Following his convictions, the
circuit court sentenced Goodrich to eight years’ imprisonment on the burglary
charge, consisting of five years’ initial confinement followed by three years’
extended supervision. That sentence was
then stayed and Goodrich was placed on eight years’ probation. Consistent with the joint recommendation,
the court imposed concurrent three-year sentences on the disorderly conduct and
battery convictions.[1] The court denied Goodrich’s motion for
postconviction relief and this appeal follows.
¶3 Goodrich
argues that the circuit court erroneously exercised its discretion by placing
too much emphasis on his prior criminal record and failing to adequately
consider that he was cooperative with authorities when arrested and cooperative
by withdrawing his suppression motion and entering no contest pleas. Goodrich also contends the circuit court did
not fully consider the joint sentence recommendation. We are not persuaded.
Sentencing lies within the discretion of the circuit court. State v. Echols, 175
Wis. 2d 653, 681, 499 N.W.2d 631 (1993).
In reviewing a sentence, this court is limited to determining whether
there was an erroneous exercise of discretion.
See id.
There is a strong public policy against interfering with the sentencing
discretion of the circuit court, and sentences are afforded the presumption
that the circuit court acted reasonably.
Id. at 681-82.
¶4 If
the record contains evidence that the circuit court properly exercised its
discretion, we must affirm. See State
v. Cooper, 117 Wis. 2d 30, 40, 344 N.W.2d 194 (Ct. App. 1983). Proper sentencing discretion is demonstrated
if the record shows that the court “examined the facts and stated its reasons
for the sentence imposed, ‘using a demonstrated rational process.’” State v. Spears, 147 Wis. 2d
429, 447, 433 N.W.2d 595 (Ct. App. 1988).
“To overturn a sentence, a defendant must show some unreasonable or
unjustified basis for the sentence in the record.” Cooper, 117 Wis. 2d at 40.
¶5 The
three primary factors that a sentencing court must address are: (1) the gravity of the offense; (2) the
character and rehabilitative needs of the offender; and (3) the need for
protection of the public. State
v. Sarabia, 118 Wis. 2d 655, 673, 348 N.W.2d 527 (1984). The weight to be given each of the primary
factors is within the discretion of the sentencing court, and the sentence may
be based on any or all of the three primary factors after all relevant factors
have been considered. See State
v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183 (Ct. App. 1984).
¶6 Here,
the court considered the appropriate factors in imposing sentence and was not
obligated to follow the sentencing recommendations. See State v. Bizzle, 222 Wis. 2d 100, 105-06
n.2, 585 N.W.2d 899 (Ct. App. 1998).
The court considered the gravity of the offenses and the need for
protection of the public. With respect
to Goodrich’s character, the court took into consideration the fact that
Goodrich entered pleas to the offenses and also considered other mitigating
factors, such as Goodrich’s education.
The court expressed concern, however, that despite his pleas, Goodrich
exhibited an unwillingness to accept responsibility for his actions after the
burglary.
¶7 The
court also observed that Goodrich had a pattern of drinking and committing
crimes, being incarcerated, and then after being released, again engaging in
excessive drinking and re-offending.
The court noted that this was Goodrich’s fourth burglary conviction and
that he seemed to last no more than two years out of prison before committing
more crimes. The court, in fact, noted
that Goodrich committed the present burglary while he was awaiting sentence on
the battery and disorderly conduct charges.
In an attempt to break this pattern, the court imposed and stayed a
lengthy sentence to encourage Goodrich to complete the eight-year probation
period successfully. Because the court
considered the relevant factors and gave extensive reasons for the sentence
imposed, we conclude that it properly exercised its sentencing discretion.
¶8 We
note that the judgment of conviction in Outagamie County Circuit Court case no.
02-CF-1044 indicates that Goodrich entered “Not Guilty” pleas to the battery
and disorderly conduct charges. Both
the Plea Questionnaire and Waiver of Rights Form, as well as the plea hearing
transcript confirm that Goodrich entered no contest pleas to the crimes
charged. Because this appears to be a
clerical error, upon remittitur, the court shall enter an amended judgment of
conviction correctly identifying Goodrich’s pleas as “No Contest.” Therefore, the judgment in 02-CF-1044 is
modified and, as modified, affirmed.
The judgment in case no. 02-CF-676 and subsequent postconviction order
are affirmed without modification.
By the Court.—Judgment and order affirmed;
judgment modified and, as modified, affirmed.
This opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.
[1] It appears that Goodrich is not challenging the sentences imposed on the battery and disorderly conduct convictions. In any event, where a defendant affirmatively joins or approves a sentence recommendation, the defendant cannot attack the sentence on appeal. State v. Scherrieks, 153 Wis. 2d 510, 518, 451 N.W.2d 759 (Ct. App. 1989).