COURT OF APPEALS DECISION DATED AND RELEASED October 24, 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. 94-2885-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD J. WOOSTER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Richard J. Wooster appeals from a judgment
of conviction upon a guilty plea to three counts of first-degree sexual assault
of a child, two counts of sexual exploitation of a child, and one count of
child enticement, contrary to §§ 948.02(1), 948.05(1), and 948.07(1), Stats.
He also appeals from an order denying his postconviction motion seeking
sentence modification. He claims that
the enactment of Chapter 980, Stats.,
operates as a new factor that the trial court should consider in imposing
sentence, and that the trial court erroneously exercised its discretion in
imposing a lengthy sentence. Because
Chapter 980, Stats., does not
constitute a new factor and because the trial court did not erroneously
exercise its discretion in imposing sentence, we affirm.
I. BACKGROUND
During October 1991 and
September 1993, Wooster engaged in unlawful sexual activity with a juvenile,
who was a family friend. As a result of
this activity, Wooster was charged with three counts of sexual assault, two
counts of sexual exploitation, and one count of child enticement. He pleaded guilty. The State recommended a fifteen year term of imprisonment with
additional probation provisions. The
trial court sentenced him to a total of fifty-five consecutive years
imprisonment. Wooster filed a
postconviction motion seeking sentence modification on the grounds that a new
factor existed and that the fifty-five year sentence was an erroneous exercise
of discretion. His motion was
denied. He now appeals.
II. DISCUSSION
Wooster raises two
issues: (1) whether Chapter 980, Stats., operates as a new factor requiring
re-sentencing, and (2) whether the trial court erroneously exercised its
discretion in imposing sentence.
A. New
Factor.
Wooster claims that the
passage of Chapter 980, Stats.,
also known as the “sexual predator law,” constitutes a new factor that
justifies sentence modification. We
disagree.
Whether a fact or set of
facts constitutes a new factor presents a legal issue that we decide de novo. State v. Franklin, 148 Wis.2d
1, 8, 434 N.W.2d 609, 611 (1989). 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, 73 (1975).
Further, a new factor is “an event or development which frustrates the
purpose of the original sentence.” State
v. Michels, 150 Wis.2d 94, 99, 441 N.W.2d 278, 280 (Ct. App. 1989). Wooster's argument fails on this basis, i.e,
the enactment of Chapter 980 does not frustrate the purpose of the trial
court's original sentence.
Wooster's argument is
that the protections afforded by Chapter 980, Stats.,
alleviate the need to sentence him to such a lengthy term of imprisonment. He argues that Chapter 980 will protect the
public by keeping him confined if he continues to pose a threat and, therefore,
a lengthy sentence to echo this same purpose (protecting the public) is
unnecessary. We are not persuaded. The sentence imposed by the trial court was
based on a variety of factors, including the aggravated nature of the crime and
the fact that the activity occurred repeatedly over a long period of time. The trial court also considered the need to
punish Wooster for these acts and send a “general deterrent” message to other
potential offenders. For these reasons,
the trial court decided that a lengthy period of incarceration was required. Accordingly, the existence of Chapter 980,
which operates to prevent the release of dangerous “sexual predators” does not
frustrate the purpose underlying the sentence imposed. Therefore, we conclude that the enactment of
Chapter 980 does not constitute a new factor in this case.
B. Sentencing
Discretion.
Wooster next claims that
the trial court erroneously exercised its discretion in imposing the lengthy
sentence. He argues that this case was
not of an aggravated nature to require the long sentence, that the trial court
failed to consider the sentencing guidelines, that the trial court relied on
other allegations of illegal acts that Wooster was never convicted on, and that
the sentence was unduly harsh.
Sentencing is left to
the discretion of the trial court and will not be disturbed on appeal unless
the trial court erroneously exercised its discretion. State v. Borrell, 167 Wis.2d 749, 781, 482
N.W.2d 883, 895 (1992). Our review of
the record in this case reveals that the trial court did not erroneously
exercise its discretion in imposing sentence.
1. Aggravated
nature of the crimes.
Wooster argues that
maximum sentences should be reserved for cases of an aggravated nature and,
therefore, the fifty-five year term was inappropriately imposed in this
case. We cannot agree for two reasons. First, the trial court did not impose the
maximum sentence. Wooster faced a total
of ninety years imprisonment if the maximum for each count were imposed. He was sentenced to fifty-five years
imprisonment, which is ten years more than half the maximum available. Second, contrary to Wooster's assertion, the
fact that these crimes involved only one victim does not mean that the crimes
were not of an aggravated nature. This
activity occurred over a long period of time; involved a young child; and
involved threats, deception and intimidation.
The trial court emphasized the gravity of Wooster's crimes in imposing
sentence. Accordingly, we reject
Wooster's claim that the nature of the crime required a lesser sentence.
2. Sentencing
guidelines.
Next, Wooster claims the
trial court erroneously exercised its discretion by imposing sentence without
considering the sentencing guidelines as mandated by § 973.012, Stats.
We summarily reject this contention because this issue was not raised at
the time of sentencing and is therefore waived. See Wirth v. Ehly, 93 Wis.2d 433, 443-44,
287 N.W.2d 140, 145-46 (1980).
3. Reference
to past illegal activities.
Next, Wooster claims
that the trial court erroneously exercised its discretion by considering other
conduct committed by Wooster for which he was never convicted. Specifically, Wooster objects to the trial
court's consideration of other victims Wooster assaulted in the past. Again, we reject Wooster's contention. A trial court may consider unproven offenses
at sentencing, in connection with the defendant's character and need for
incarceration and rehabilitation. State v.
Verstoppen, 185 Wis.2d 728, 737, 519 N.W.2d 653, 656 (Ct. App.
1994). The trial court must consider
whether the crime for which the defendant has been convicted is an isolated act
or part of a pattern of conduct, and unproven offenses may be considered for
that purpose. State v.
McQuay, 154 Wis.2d 116, 126, 452 N.W.2d 377, 381 (1990). Accordingly, the trial court in the instant
case did not erroneously exercise its discretion when it considered Wooster's
thirty-year history of assaulting minors when it imposed sentence.
4. Unduly
harsh sentence.
Finally, Wooster argues
that the sentence imposed was unduly harsh.
We do not agree. Sentence length
is a matter of trial court discretion. Cunningham v.
State, 76 Wis.2d 277, 284, 251 N.W.2d 65, 68 (1977). This court first determines whether the
trial court properly exercised its sentencing discretion and then whether a
challenged sentence is excessive. State
v. Glotz, 122 Wis.2d 519, 524, 362 N.W.2d 179, 182 (Ct. App.
1984). We will conclude that the trial
court erroneously exercised its discretion only if “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.” Ocanas v. State, 70 Wis.2d 179, 185, 233 N.W.2d
457, 461 (1975).
We consider first whether
the trial court properly exercised its sentencing discretion. The trial court in this case properly
considered the three required factors in passing sentence: the gravity of the offenses, Wooster's
character, and the need to protect the community. The record demonstrates that the trial court clearly considered
each factor in imposing sentence.
Therefore, we conclude that the trial court properly exercised its
sentencing discretion.
Next, we consider
whether imposing the fifty-five year prison term was excessive. In reviewing the crimes involved and the
potential maximum punishment, we cannot conclude that Wooster's prison term was
excessive. The maximum potential terms
for the crimes Wooster pleaded guilty to exposed him to a total of ninety years
in prison. The trial court imposed a
fifty-five year term. This sentence is
well within the limits of the maximum and, therefore, is not so
disproportionate to the offenses so as to shock the public sentiment or offend
reasonable judgment. See State v.
Daniels, 117 Wis.2d 9, 22, 343 N.W.2d 411, 417-18 (Ct. App. 1983). Accordingly, we reject Wooster's claim that
his sentence was unduly harsh.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.