COURT OF APPEALS DECISION DATED AND FILED November 9, 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. 2007CF1452 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Wisconsin, Plaintiff-Respondent, v. Martin Enselmo Malacara, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Racine County: charles H. constantine, Judge. Affirmed.
Before Neubauer, P.J., Reilly, J., and Neal Nettesheim, Reserve Judge.
¶1 PER
CURIAM. Martin Enselmo Malacara appeals from a judgment of
conviction and an order denying his motion for postconviction relief. Malacara contends that he is entitled to
resentencing on grounds that the circuit court did not articulate its reasons
for imposing consecutive sentences and did not acknowledge and apply the “least
punishment” principle at sentencing.[1] Additionally, he maintains that a new factor
justified the modification of his sentence.
We reject these arguments.
Accordingly, we affirm the judgment and order of the circuit court.
¶2 Malacara was convicted following a
guilty plea of second-degree reckless homicide and discharging a firearm from a
vehicle towards a person, both as party to a crime. The charges stemmed from a drive-by shooting of
brothers Torivio and Michael Melendez, while they were at the front door of a
friend’s house. Malacara, along with two
others, allegedly fired several shots from a car, killing Torivio. Malacara was seventeen years old at the time
of the shooting.
¶3 On the homicide count, the circuit court
sentenced Malacara to fifteen years of initial confinement followed by seven
years of extended supervision. On the
discharging a firearm count, the court sentenced Malacara to seven years of
initial confinement followed by two years of extended supervision. Before the sentencing hearing concluded, the following
exchange took place regarding how the sentences would run:
[PROSECUTOR]: Judge, I don’t think you specified whether the counts are consecutive.
THE COURT: They are consecutive. Anything else? Mr. Cafferty?
[DEFENSE COUNSEL]: No, your Honor.
¶4 Malacara subsequently filed a motion for
postconviction relief requesting that the circuit court either grant him a new
sentencing hearing or modify his sentence. The grounds for the motion were (1) the
court’s failure to articulate its reasons for imposing consecutive sentences,
(2) the court’s failure to acknowledge and apply the “least punishment”
principle at sentencing, and (3) that adolescent brain research and personal
neurological impairments constituted a new factor. After a postconviction motion hearing, the
court denied Malacara’s motion. This
appeal follows.
¶5 Malacara first contends that he is
entitled to resentencing on grounds that the circuit court did not articulate
its reasons for imposing consecutive sentences and did not acknowledge and
apply the “least punishment” principle at sentencing. According to Malacara, the court’s imposition
of consecutive sentences was an “afterthought” that exceeded the minimum amount
of custody or confinement which is consistent with the primary sentencing
factors.
¶6 Sentencing is left to the discretion of
the circuit court, and appellate review is limited to determining whether there
was an erroneous exercise of discretion.
State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d
197. We afford a strong presumption of
reasonability to the circuit court’s sentencing determination because that
court is best suited to consider the relevant factors and demeanor of the
defendant. State v. Ziegler, 2006 WI
App 49, ¶22, 289 Wis. 2d 594, 712 N.W.2d 76.
¶7 The “sentence imposed in each case
should call for the minimum amount of custody or confinement which is
consistent with the protection of the public, the gravity of the offense and
the rehabilitative needs of the defendant.”
Gallion, 270 Wis. 2d 535, ¶23 (quoting McCleary
v. State, 49 Wis. 2d 263, 276, 182 N.W.2d 512 (1971)).
However, in imposing the minimum amount of custody consistent with the
appropriate sentencing factors, “minimum” does not mean “exiguously minimal,”
or insufficient to accomplish the goals of the criminal justice system. State v. Ramuta, 2003 WI App 80,
¶25, 261 Wis. 2d 784, 661 N.W.2d 483.
¶8 In order to permit meaningful review,
the circuit court “must articulate the basis for the sentence imposed on the
facts of the record.” State
v. Echols, 175 Wis. 2d 653, 682, 499 N.W.2d 631 (1993). The court has an additional opportunity to
explain its sentence when challenged by postconviction motion. See State v. Fuerst, 181 Wis. 2d 903,
915, 512 N.W.2d 243 (Ct. App. 1994). Nevertheless,
if the court “fails to specifically set forth the reasons for the sentence
imposed, this court is ‘obliged to search the record to determine whether in
the exercise of proper discretion the sentence imposed can be sustained.’” State v. Leighton, 2000 WI App 156, ¶52,
237 Wis. 2d 709, 616 N.W.2d 126 (quoting McCleary, 49 Wis. 2d
at 282).
¶9 At the postconviction motion hearing,
the circuit court readily admitted that it “didn’t do a very good job” at
sentencing in articulating the basis for imposing consecutive sentences. Accordingly, in its written decision denying
Malacara’s postconviction motion, the court elaborated on its reasoning. The court explained that it was “outraged by the
events that occurred” and therefore had followed the recommendations of the
State and presentence investigation (PSI) writer to impose consecutive
sentences. A review of the sentencing
transcript confirms the court’s sense of outrage.
¶10 The circuit court also used its written
decision to address the “least punishment” principle. The court acknowledged its familiarity with
the principle along with the corollary command that sentencing courts should
consider probation as a first alternative.
Gallion, 270 Wis. 2d 535, ¶44. However, the court noted that all parties,
including Malacara, understood that this was a prison case due to the
seriousness of the offenses. Indeed,
defense counsel had argued that it would be equitable for Malacara to receive a
sentence of fifteen years of initial confinement—just as another co-defendant
had received. Because the court
explained why Malacara’s situation was different than the co-defendant’s and
deserving of greater punishment, it concluded that the failure to explicitly
acknowledge and apply the “least punishment” principle did not warrant relief.
¶11 In the end, we are satisfied that the
circuit court’s statements at sentencing and in its postconviction decision
demonstrate a proper exercise of discretion.
We therefore reject Malacara’s claim that he is entitled to
resentencing.
¶12 Malacara next contends that a new factor justified the modification of his sentence. According to Malacara, his new factor had two components: (1) adolescent brain research, which explains the behaviors of all adolescents, including Malacara, and (2) his specific neurological impairments, as diagnosed by Dr. Mariellen Fischer, a neuropsychologist.
¶13 A new factor is
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, even though it was then in existence, it was unknowingly overlooked by all of the parties.
Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).
¶14 The defendant must demonstrate the existence of a new factor by clear and convincing evidence. State v. Franklin, 148 Wis. 2d 1, 8-9, 434 N.W.2d 609 (1989). Whether what the defendant presents is a new factor is a question of law. State v. Hegwood, 113 Wis. 2d 544, 546-47, 335 N.W.2d 399 (1983). If a defendant has demonstrated the existence of a new factor, then the circuit court must determine whether the new factor justifies modification of the sentence. See id. at 546. This determination is committed to the circuit court’s discretion and will be reviewed under an erroneous exercise of discretion standard. See id.
¶15 We conclude that the circuit court properly exercised its discretion in rejecting Malacara’s argument. To begin, it is doubtful that Malacara even demonstrated the existence of a new factor. After all, the circuit court recognized and took into consideration Malacara’s age, lack of maturity, poor judgment, and susceptibility to peer pressure at the time of his sentencing. Additional information about adolescent brain research would not have been highly relevant to the court’s analysis. See State v. Ninham, 2011 WI 33, ¶93, 333 Wis. 2d 335, 797 N.W.2d 451 (generalizations concluded within scientific studies on adolescent brain development are insufficient to support a determination about the culpability of a particular juvenile offender).
¶16 Even if Malacara
had demonstrated the existence of a new factor, the circuit court did not
erroneously exercise its discretion in concluding that it did not justify
sentence modification. In its written
decision denying postconviction relief,
the circuit court characterized Fischer’s report as “superficial at best.” The court was entitled to conclude that
Fischer’s evaluation was not credible or convincing. Furthermore, the court cited two facts from
Fischer’s testimony and report that undermined Malacara’s argument that he was
less culpable than the court originally believed: (1) Malacara’s intelligence was within normal
range and (2) notwithstanding his neurological impairments, he still understood how a gun worked; that
is, “if there was a bullet in the gun and the gun was fired, the bullet would
come out of the gun.” Given these facts,
the court could reasonably conclude that sentence modification was not
warranted.
By
the Court.—Judgment and order affirmed.
This opinion will not be
published. See Wis. Stat. Rule
809.23(1)(b)5.
[1] By “least punishment” principle, Malacara is referring to the principle that the sentence imposed should call for the minimum amount of custody or confinement which is consistent with the primary sentencing factors. See State v. Gallion, 2004 WI 42, ¶23, 270 Wis. 2d 535, 678 N.W.2d 197.