COURT OF APPEALS DECISION DATED AND RELEASED April 24, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 95-0738-CR
95-0739-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PETER T. NELSON,
Defendant-Appellant.
APPEALS from judgments
of the circuit court for Kenosha County:
BRUCE E. SCHROEDER, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER CURIAM. Peter T. Nelson appeals
from judgments convicting him of first-degree sexual assault of a child,
second-degree sexual assault of a child, misdemeanor entry to a locked building
and criminal damage to property pursuant to a plea agreement.[1] The trial court sentenced Nelson to five
years in prison for second-degree child sexual assault, imposed and stayed a
twenty-year prison sentence for the first-degree sexual assault charge and
placed Nelson on probation for twenty years consecutive to his release from
prison. Nelson also received three
years of probation on the misdemeanor counts to be served concurrently with the
twenty-year probation. Nelson
challenged the twenty-year probation term and twenty-year imposed and stayed
sentence in a postconviction motion.
The trial court declined to modify the sentence. Nelson appeals.[2]
The child sexual assault
charges against Nelson arose from sexual contact with a female family member
who was twelve and thirteen years old at the time of the assaults. Nelson contends that the twenty-year
probation term and twenty-year stayed sentence for first-degree sexual assault
were unduly harsh and unconscionable because any violation of his probation would
result in a twenty-year prison term. We
disagree and affirm for two reasons.
First, Nelson is estopped from protesting the twenty-year probation term
because his trial counsel suggested that very term at sentencing. Second, we affirm the sentence because it
was an appropriate exercise of the trial court's discretion.
A party is judicially
estopped from maintaining a position on appeal which is inconsistent with a
position taken in the trial court. See
State v. Michels, 141 Wis.2d 81, 98, 414 N.W.2d 311, 317 (Ct.
App. 1987). In arguments at sentencing,
defense counsel acknowledged that Nelson had committed a serious offense, that
the facts were "very egregious" and that a lengthy term of probation
might be an appropriate punishment, particularly with "prison being held
over [Nelson's] head ...." He then
suggested a twenty-year term of probation.
Nelson did not object or exercise his right of allocution in response to
counsel's statement. Accordingly, he is
estopped from challenging the twenty-year probation term on appeal.
Even if Nelson were not
judicially estopped from challenging the lengthy probation and stayed sentence
terms, we would reject his contention that his sentence was unduly harsh and
unconscionable.
We presume that the
trial court acted reasonably in sentencing, and Nelson must show that the court
relied upon an unreasonable or unjustifiable basis for its sentence. State v. J.E.B., 161 Wis.2d
655, 661, 469 N.W.2d 192, 195 (Ct. App. 1991), cert. denied, 503 U.S.
940 (1992). The weight given to each of
the sentencing factors is within the sentencing judge's discretion. Id. at 662, 469 N.W.2d at
195. Public policy strongly disfavors
appellate courts interfering with the sentencing discretion of the trial
court. State v. Teynor,
141 Wis.2d 187, 219, 414 N.W.2d 76, 88 (Ct. App. 1987).
The primary factors to
be considered by the trial court at sentencing are the gravity of the offense,
the offender's character and the need to protect the public. State v. Borrell, 167 Wis.2d
749, 773, 482 N.W.2d 883, 892 (1992).
In sentencing Nelson, the court considered the grave nature of his sex
offenses and the harm done to the victim, Nelson's character, including his
previous criminal record and a history of alcohol abuse (which was a factor in
the assaults), and the need to protect others from his conduct. Nelson has not shown that the trial court
relied upon an unreasonable or unjustifiable basis in sentencing him. J.E.B., 161 Wis.2d at 661, 469
N.W.2d at 195.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Nelson was originally charged with two counts of first-degree child sexual assault and two counts of second-degree child sexual assault. Plea negotiations resulted in dismissal of one of each of those counts, a felony bail-jumping charge and a traffic case. The plea agreement provided that the dismissed child sexual assault and bail-jumping charges would be read in for sentencing purposes.
[2] Nelson's March 6, 1995, notice of appeal states that it is taken from the judgments of conviction. Because Nelson challenges his sentence on appeal, the notice of appeal should also have referred to the February 25, 1995, order denying his postconviction sentence modification motion. We will construe the notice of appeal as being taken from both the judgments of conviction and the order.