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COURT OF APPEALS DECISION DATED AND RELEASED September 30, 1996 |
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. 95-1091-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT P. MARANGER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County:
ROBERT A. DE CHAMBEAU, Judge. Affirmed.
Before Eich, C.J.,
Vergeront, J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Robert P. Maranger appeals from a seven-year sentence
entered on a judgment convicting him of second-degree sexual assault, contrary
to § 940.225(2)(a), Stats.,[1]
as a repeater. Maranger argues that the
trial court's improper completion and scoring of his sentencing matrix
prejudiced him and denied him due process.
For the reasons set forth below, we affirm.
At the Mifflin Street
Block Party in Madison on May 7, 1994, the victim was standing in an alley looking
for something when Maranger leaned on her back, bending her over, and squeezed
her breasts from the back for one or two seconds. The victim turned, stared at Maranger and attempted to kick him
in the groin, but missed and kicked his leg.
She then chased him up the alley.
Maranger dropped into a football stance and caught the victim in the
chest with his shoulder. When the
victim fell down, he turned, ran to his bicycle and rode away. Police caught Maranger within minutes, and
the victim identified him.
Maranger was charged
with second-degree sexual assault and battery.
He was found guilty of both charges after a jury trial.
As part of the
sentencing process, the trial court completed a sentencing score sheet as
required by § 973.012, Stats.[2] Maranger challenges two entries on the
sheet. First, the sheet asks whether
the victim suffered "bodily harm."
A yes answer adds three points to the defendant's total score. In Maranger's case the answer was yes, which
increased the "guideline" sentence recommendation from thirty-six to
fifty-four months (three to four and one-half years) to fifty-four to
seventy-two months (four and one-half to six years).
The second entry is the
"judge's statement" that the seven-year sentence imposed "agrees
with the guidelines as shown on the matrix." However, the matrix ranges from four and one-half to only six
years, making the statement untrue and Maranger's sentence one year longer than
the guidelines.
Maranger argues this
abridges his right to due process because his sentence was based on false and
incorrect information contained in the completed form. According to Maranger, he had the right to
be sentenced on a correctly completed form because even if the sentence exceeds
the guidelines, the guidelines are intended to be the starting point for
sentencing.
Maranger attacks the
circuit court's use of the sentencing guidelines. When Maranger first appealed, it was unclear whether State
v. Halbert, 147 Wis.2d 123, 432 N.W.2d 633 (Ct. App. 1988), remained
good law. Halbert holds
that compliance or noncompliance with the sentencing guidelines is not an
appealable issue. Id. at
130, 432 N.W.2d at 636. This holding
tracks the last sentence of § 973.012, Stats.,
supra note 2.
After Maranger brought
this appeal, the supreme court held that Halbert is good
law. State v. Elam, 195
Wis.2d 683, 685, 538 N.W.2d 249, 250 (1995).
Even apart from the Halbert holding, we see no error.
Maranger first argues
the circuit court improperly considered the injuries incurred in the battery as
part of the scoring for the sexual assault.
Specifically, Maranger argues that the sexual assault itself did not
cause the victim "bodily harm" because it lasted only two seconds and
the victim testified, at most, to discomfort.
Because the addition of three points for "bodily injury"
raises the upper limit of sentencing from four and one-half to six years,
Maranger's implied argument is that he is being twice penalized for the same
injury, namely, the "injury" associated with the sexual assault and the
injury associated with the knockdown assault.
We reject this
argument. As Maranger acknowledges, the
transcripts of the motions and sentencing proceedings indicate that the trial
court, relying on the jury findings, viewed the victim's discomfort from the
sexual assault as "bodily harm."
More importantly, the court indicated it did not place its reliance on
the charges brought, but instead understood the entire event as one
uninterrupted sequence, and sentenced on that ground. The court indicated that its eight-year sentence, comprised of
seven years for the sexual assault and one year for the battery, was made in
light of the entire incident. The
court's statement undercuts Maranger's assertion that he is being penalized
twice for the same injury. This is
especially true in light of the circuit court's observations that
multi-charging sentencing is made more difficult when some charges, such as
sexual assault, have guideline recommendations, while others, like battery, do not.
Maranger also argues
that the court erred by indicating on the form that the sentence complied with
the guideline. We take judicial notice
that the evidence arguably supports the possibility of such error. Before sentencing, the court referred to the
upper limit proposed by the guidelines.
However, whether a clerical error was made in this case is an issue of
fact, and thus not a matter this court can resolve. Wis. Const. art.
VII, § 5(3); see Wurtz v. Fleischman, 97 Wis.2d 100, 108, 293
N.W.2d 155, 159 (1980). If Maranger is
arguing that the circuit court made a clerical error and meant to sentence him
to the top of the guideline scale, which would be seventy-two months, or six
years, but erred, because it incorrectly calculated seventy-two months to equal
seven years, he should move the circuit court for reconsideration.[3] § 806.07, Stats.
Finally, Maranger argues
he was denied due process because the guidelines are intended as the starting
point of the sentencing calculation and were improperly used here. For the reasons set forth above, there is no
merit to this argument. This is
especially true because the court clearly indicated the guidelines were not
helpful because they were provided for only one of the charges.
The primary factors the
trial court considers when sentencing are the gravity of the offense, the
character of the offender, and the need for public protection. State v. Larsen, 141
Wis.2d 412, 426-27, 415 N.W.2d 535, 541 (Ct. App. 1987). The weight given to each of these factors is
within the trial court's discretion. Cunningham
v. State, 76 Wis.2d 277, 282, 251 N.W.2d 65, 67-68 (1977). The trial court here clearly indicated that
it based Maranger's sentence on his prior record, his inability to remember any
details of the incident, the impact on the victim and other like factors. This statement complies with the strictest
reading of § 973.012, Stats.,
as a statement "on the record" of "its reasons for deviating
from the guidelines." Id.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] As discussed further below, Maranger was also sentenced to one year's imprisonment, consecutive, on conviction of battery contrary to § 940.19(1), Stats. He does not specifically contest the battery sentence.
[2]
Section 973.012, Stats., reads:
A
sentencing court, when imposing a sentence, shall take the guidelines
established under s. 973.011 into consideration. If the court does not impose a sentence in accordance with the
recommendations in the guidelines, the court shall state on the record its
reasons for deviating from the guidelines.
There shall be no right to appeal on the basis of the trial court's
decision to render a sentence that does not fall within the sentencing
guidelines.