COURT OF APPEALS DECISION DATED AND RELEASED November 9, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2835-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT J. MAURIZZI,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Rock County: JAMES WELKER, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. Robert Maurizzi appeals from a judgment convicting him
of burglary. He also appeals from an
order denying his postconviction motion to modify his sentence. The issue is whether the trial court
properly exercised its sentencing discretion.
We reject Maurizzi's arguments and affirm.
The court may sentence a
defendant to the intensive sanctions program on the Department of Corrections'
recommendation in the presentence investigation report. Section 973.032(2), Stats. If the DOC
does not recommend the program, the court may order it to further assess and
evaluate the person, and then may sentence the person to the program unless the
DOC considers probation presumptively appropriate. Id.
Here, the DOC's
presentence report noted seven previous felony convictions when there were
actually just four. As a result, the
report, which recommended a prison sentence, mistakenly deemed Maurizzi
ineligible for intensive sanctions.
At the sentencing
hearing, counsel pointed out the error and asked the court to order the DOC to
assess Maurizzi using the correct information.
The court refused, noting that it was not interested in the report's
recommendation. After considering
Maurizzi's prior record, his failure to complete probation on his earlier
charges, his admitted drug and alcohol abuse, his irresponsible lifestyle, and
the sentencing matrix, the court sentenced him to a five-year prison term. Postconviction relief from the sentence was
denied.
On appeal, Maurizzi
argues that the court should have allowed him the benefit of a DOC assessment
of his intensive sanctions eligibility based on proper information about his
felony record. However, at Maurizzi's
postconviction hearing on the issue, the trial court fully explained why it
would not have sentenced Maurizzi to intensive sanctions regardless of the
DOC's recommendation. Those comments
persuade us that further assessment by the DOC would have been meaningless.
At sentencing,
Maurizzi's counsel alleged numerous other errors in the presentence
report. On appeal, Maurizzi asks that
we accept those allegations as fact, and vacate the sentence because the report
was so misleading that it irrevocably tainted the proceedings. The trial court's sentencing remarks and
postconviction explanation of the sentence make clear that the presentence
report made no difference in the sentence Maurizzi ultimately received. Again, the trial court's statements are
persuasive.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.