COURT OF APPEALS DECISION DATED AND RELEASED October 12, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-0672-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JHERI R. JOHNSON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Portage County: ROBERT C. JENKINS, Reserve Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER CURIAM. Jheri R. Johnson appeals from a judgment of
conviction for sexual assault and from a postconviction order denying
resentencing. The issues are whether
Johnson is entitled to resentencing because:
(1) he was sentenced on inaccurate information; (2) the trial court
erroneously exercised its sentencing discretion; and (3) Johnson was not
offered the opportunity to exercise his right to allocution. We conclude that Johnson has not shown that
the trial court relied on inaccuracies in the Presentence Investigation Report
("PSI"), or that the trial court erroneously exercised its sentencing
discretion. We also conclude that
Johnson waived his right to allocution.
Therefore, we affirm.
Johnson entered a guilty
plea to second-degree sexual assault of a child, contrary to § 948.02(2), Stats., and the State dismissed a
similar charge and enhancer. The trial
court imposed the maximum sentence and denied a postconviction motion for
resentencing.
Johnson contends that he
was denied due process of law because he is entitled to be sentenced on
accurate information. State ex
rel. LeFebre v. Israel, 109
Wis.2d 337, 345, 325 N.W.2d 899, 903 (1982).
However, trial counsel alerted the sentencing court to the
mischaracterizations and unsubstantiated conclusions which demonstrated
investigator bias. The sentencing court
recognized the investigator's bias and limited its consideration to the
significant facts. Johnson also
contends that the trial court's postconviction order was inconsistent with its
remarks at sentencing.[1]
At the postconviction hearing, the trial court recalled the PSI, but reiterated
its application of how the sentencing factors supported the sentence it
imposed.[2]
Johnson contends that
the trial court must have relied on the inaccuracies and mischaracterizations
in the PSI because it imposed the maximum sentence. Johnson is required to specify the inaccuracies in the PSI and
persuade us that the trial court relied on those inaccuracies when it imposed
sentence. He has not done so.
We review a sentence to
determine whether the trial court erroneously exercised its discretion. State v. Larsen, 141 Wis.2d
412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987).
The primary sentencing factors are the gravity of the offense, the
character of the offender, and the need for public protection. Id. at 427, 415 N.W.2d at
541. The weight given to each factor is
within the trial court's discretion. Cunningham
v. State, 76 Wis.2d 277, 282, 251 N.W.2d 65, 67-68 (1977).
Johnson contends that
the trial court erroneously exercised its sentencing discretion because it
imposed the maximum sentence, although no violence was involved and he had not
been convicted previously of a sexual offense.[3] However, the trial court considered the
primary sentencing factors and focused on Johnson's:
age
and strength, [that he] took advantage of innocent and practically defenseless
girls by taking them to a place where there was no possibility of anyone being
available to help. The effects on their
lives ha[ve] been overwhelming, I think it's been devastating. A thing of this kind is the most vicious and
violent act that can be visited on a young girl. And so I view this a most serious type of offense of a category
in which the defendant has been convicted.
The
trial court summarized Johnson's attitude as "defiant and
unrepentant." The trial court
found Johnson to be "a serious threat to society," because he
"victimize[s] young girls and that it's necessary that society be
protected." The trial court
imposed a sentence that exceeded the guidelines because of "the heavy
weight of aggravating circumstances," and because Johnson "was preying
on a[n] unprotected, innocent child."
Because the trial court applied the sentencing factors, we conclude that
it properly exercised its discretion.
Johnson also claims that
the trial court's failure to offer him the opportunity to exercise his right to
allocution constitutes a denial of due process. Section 972.14(2), Stats.,
directs the trial court "to ask the defendant why sentence should not be
pronounced upon him or her and allow the ... defendant an opportunity to make a
statement with respect to any matter relevant to the sentence." Failure to offer sua sponte an
opportunity for allocution is not reversible error, notwithstanding this
statutory directive. Nicholas v.
State, 49 Wis.2d 678, 683, 183 N.W.2d 8, 11 (1971). While the Wisconsin Supreme Court has
recognized allocution as a due process right, State v. Borrell,
167 Wis.2d 749, 772, 482 N.W.2d 883, 891 (1992), Johnson has waived this
right. When the trial court did not ask
Johnson if he wished to make a statement before it imposed sentence, trial
counsel did not object or request that Johnson have that opportunity, despite
counsel's repeated interjections during the trial court's sentencing remarks.[4]
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] In its postconviction order, the trial court noted that the PSI investigator's impressions and recommendation were "appropriate," in claimed contradiction to its concession at sentencing that the PSI investigator was biased against Johnson.
[2] The trial court recognized that the investigator's assessment was "extreme" and that some of her statements were "questionable," but noted that other statements were "significant" and "appropriate."
[3] Johnson also claims the trial court erred in considering other charges and unproven offenses because there were no offenses read in at sentencing. However, such consideration by the sentencing court is proper "since those other [unproven] offenses are evidence of a pattern of behavior which is an index of the defendant's character, a critical factor in sentencing." Elias v. State, 93 Wis.2d 278, 284, 286 N.W.2d 559, 562 (1980).