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COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 17, 1995 |
NOTICE |
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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. 95-0490-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JASON D. SCHULTZ,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Eau Claire County: ERIC WAHL, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Jason Schultz appeals a judgment of
conviction and an order denying his postconviction motion arising out his plea
of guilty to the charge of forgery, § 943.38(1), Stats., as an habitual criminal. Section 939.62, Stats. He argues that the trial court erroneously
exercised its sentencing discretion because it (1) applied a preconceived
sentencing policy; (2) improperly considered a victim impact statement; and (3)
failed to grant sufficient time to review the presentence report. We reject his contentions and affirm the
judgment and order.
Pursuant to a plea
agreement, Schultz entered a plea to forgery.
The presentence report, prepared January 26, 1994, recommended a four-
to five-year prison sentence.
Sentencing was set for February 15, 1994. At defense counsel's request, sentencing was adjourned to
February 16, 1994, at which time the trial court sentenced Schultz to seven
years in prison and ordered restitution.
Schultz moved to modify his sentence.
The trial court partially modified the sentence with respect to
restitution but did not modify the seven-year prison term.
Sentencing is addressed
to trial court discretion, and our review is limited to whether the trial court
properly exercised its discretion. State
v. Larsen, 141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App.
1987). An appellate court will search
the record to determine whether the record supports the trial court's exercise
of discretion. State v. Martin, 100 Wis.2d 326, 328, 302 N.W.2d 58, 59 (Ct.
App. 1981). A mechanistic approach to
sentencing is not an exercise of sentencing discretion. Id. at 327, 302 N.W.2d at
59. A preconceived policy tailored to
fit the crime and not the offender is impermissibly closed to individual
mitigating factors and therefore requires re-sentencing. Id.
Schultz argues that the
trial court erroneously exercised its discretion because it applied a
preconceived sentencing policy. The
record fails to support his contention.
When the trial court denied defense counsel's second request for a continuance
to investigate the sentencing option of intensive sanctions, it made the
following statements that Schultz contends demonstrate a preconceived
sentencing policy:
I would not be inclined to recommend or
accept a recommendation of Intensive Sanctions sentence in this case
anyway. So I don't see that we gain
anything by a delay. ...
....
I wouldn't consider that to be a
reasonable sentence in this case.
....
Even
if Mr. Schultz was eligible, I would not accept that as a reasonable
recommendation in this case.
Schultz
fails to include the balance of the court's statements that explained its
reasoning. The court continued:
The point is that I think Mr. Schultz has
had a lot of opportunities and he has not taken advantage of them. And it is a difficult--there is no job more
difficult in my limited experience as a judge than sentencing someone and,
particularly, a young man. [T]his
fellow could have had promise. ... I am
not going to extend Mr. Schultz another courtesy. ... Mr. Schultz has not shown any attempt to accept any of the
courtesies going back to when he was a juvenile. And it's time for him to suffer some of the consequences.
[W]e
can take a week and you can come up with programs and alternatives and I'm not
going to accept them. Based on my
understanding of the presentence--now if you tell me the presentence is wrong
... the facts in it are incorrect, then certainly I'd have to consider
that.
The trial court's
remarks do not indicate a preconceived sentencing policy. To the contrary, the trial court considered
Schultz's individual circumstances. It
explicitly recognized the great difficulty in sentencing a young man with
promise. Based upon the record and
presentence report, the trial court was familiar with Schultz's background. Based upon Schultz's record, which included
two burglaries, the trial court indicated that intensive sanctions was not a
sound alternative. The record discloses
a reasonable exercise of discretion.
Next, Schultz argues
that the trial court erroneously considered the victim impact statement because
the statement was irrelevant to the sentence.
We disagree. Section 972.14(3), Stats., provides in part:
(a) Before pronouncing sentence in a felony
case, the court shall also allow a victim ... to make a statement or submit a
written statement to be read in court.
The court may allow any other person to make or submit a statement under
this paragraph. Any statement under
this paragraph must be relevant to the sentence.
Two relevant factors to
be considered at sentencing are the character of the defendant and the
protection of the public. State
v. Sarabia, 118 Wis.2d 655, 673, 348 N.W.2d 527, 537 (1984). Here, the criminal complaint recites that
the victims, Jean and Robert Barganz, had credit cards and a check stolen. Schultz pled to the one count of forgery as
a result of forging both victims' names on the back of the stolen check. The record shows that a misdemeanor theft
arising out of the use of a stolen credit card was pending in Dunn County at
the time of sentencing on the forgery.
At sentencing on the
forgery, the trial court considered the victim's impact statement, which
detailed the embarrassment and inconvenience she suffered when she was
attempting to use her credit card when shopping. The clerk would not let her have her new credit card back because
the old one was reported stolen. Other
people were waiting in line at the time this incident occurred. It took an hour and a half to straighten the
problem out.
Schultz fails to
understand how the victims' circumstances relate to his sentence. They are relevant because the credit card
and check theft were part of the transaction leading to the forgery. Schultz apparently denies participation in
the theft of the credit card.
Nonetheless, the court was entitled to consider the impact of the credit
card theft. Schultz's participation in
the forgery reflects his character, specifically his lack of concern for the
property rights of others.
Character is an appropriate sentencing
factor. A court may evaluate character
in light of participation in unproven offenses. State v. McQuay, 154 Wis.2d 116, 126, 452 N.W.2d
377, 381 (1990). The trial court
stated: "People deserve to feel
safe in their own homes and with their own possessions." The victim impact statement revealed the extent
of inconvenience and embarrassment that victims suffer as a result of theft of
their property. The trial court
properly considered the victim impact statement.
Next, Schultz argues
that the trial court erred because it allowed him only nineteen minutes to
review the presentence report.[1] Schultz fails to identify how the brief time
span prejudiced him. See §
805.18, Stats. He had ten months from the time of
sentencing to the postconviction hearing to read the presentence carefully and
point out what he would have done or said differently at sentencing if he
had been given more time. However, he did not do so at postconviction
proceedings and has not done so in his appeal brief. Consequently, he fails to demonstrate grounds for
resentencing.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.