COURT OF APPEALS DECISION DATED AND RELEASED January 18, 1996 |
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. 94-2869-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRUCE HOEFS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Jefferson County: ARNOLD SCHUMANN, Judge. Affirmed and cause remanded with
directions.
Before Eich, C.J., Sundby
and Vergeront, JJ.
PER
CURIAM. Bruce Hoefs appeals from a judgment of conviction and
an order denying his postconviction motion.
The issue is whether the court erroneously exercised its discretion in
sentencing him. We affirm and remand
for amendment of the judgment.
Hoefs pleaded no contest
to one count of delivery of tetrahydrocannabinols, 500 grams or less, contrary
to § 161.41(1)(h)1, Stats.,
and one count of keeping a vehicle used for delivering controlled substances,
contrary to § 161.42, Stats., both
as second offenses under § 161.48, Stats.[1] The court sentenced Hoefs to four years on
the first count and two years on the second, to be served concurrently.
Hoefs argues that the
court erroneously exercised its discretion because it did not consider certain
sentencing guidelines. This is not an
appealable issue. State v. Elam,
195 Wis.2d 683, 538 N.W.2d 249 (1995).
Hoefs argues that the
court was first obligated to consider whether he should be placed on
probation. However, the court did
discuss and reject probation, noting that Hoefs had a lengthy record and was on
probation at the time of these offenses.
Hoefs argues that the
court erred by not considering him for the intensive sanctions program before
sentencing him to prison. He argues
that if it is error to impose a sentence of incarceration without first considering
probation, it is also error to incarcerate him without consideration of
intensive sanctions. Hoefs cites no law
for this proposition, and does not develop the argument beyond this simple
assertion. Furthermore, Hoefs did not
request intensive sanctions as an alternative at sentencing.
Hoefs argues that the
presentence report did not note that he had successfully completed a similar
program in Dane County, and that his completion is a new factor upon which he
should be resentenced. A new factor for
resentencing must be one which was either not then in existence or which was
then in existence, but unknowingly overlooked by the parties. State v. Ambrose, 181 Wis.2d
234, 240, 510 N.W.2d 758, 761 (Ct. App. 1993).
Hoefs' completion of the program was in existence at the time of
sentencing. He has not shown that it
was unknowingly overlooked. Moreover,
to justify resentencing, a new factor must be one which frustrates the purpose of
the original sentence, something which strikes at the very purpose for the sentence. State v. Michels, 150 Wis.2d
94, 99, 441 N.W.2d 278, 280 (Ct. App. 1989).
Discovery of a fact which the sentencing court could have considered,
but did not, does not satisfy this standard.
Id. at 99-100, 441 N.W.2d at 280. We conclude the trial court did not err in
rejecting Hoefs' completion of the Dane County program as a new factor.
Hoefs argues that the
court erred by not stating why, once it chose prison, it set a sentence of the
length it did. When imposing sentence,
a trial court must consider the gravity of the offense, the offender's
character and the public's need for protection. State v. Thompson, 172 Wis.2d 257, 264, 493 N.W.2d
729, 732 (Ct. App. 1992). The weight
given to each sentencing factor is left to the trial court's broad
discretion. Id. The sentencing transcript shows that the
court considered the relevant factors on the record.
Hoefs also argues that
his sentence was excessive. A trial
court exceeds its discretion as to the length of the sentence only where the
sentence is so excessive and unusual and so disproportionate to the offense
committed as to shock public sentiment and violate the judgment of reasonable
people concerning what is right and proper under the circumstances. Id. The sentence here was not so excessive or unusual. Rather than four years of concurrent
sentences, the court could have imposed consecutive sentences of six and two
years and substantial fines.
On remand, the court
shall amend the judgment of conviction as discussed above in footnote 1.
By the Court.—Judgment
and order affirmed; cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.