COURT OF APPEALS DECISION DATED AND RELEASED April 10, 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. |
No. 95-1158-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PRENTISS L. FARR,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Racine County: NANCY E. WHEELER, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER CURIAM. Prentiss L. Farr appeals
from a judgment convicting him of three counts of delivering cocaine and one
count of delivering heroin and from an order denying his postconviction motion
seeking sentence modification. We
conclude that the trial court properly exercised its discretion in sentencing
Farr and affirm.
Farr was charged in the
information with three counts of delivering cocaine and one count of delivering
heroin within 1000 feet of a school, one count of delivering cocaine within
1000 feet of a school as party to the crime, and one count of delivering a
noncontrolled substance which he expressly represented to the recipient was heroin,
as party to the crime. As part of a
plea agreement, the allegations that he delivered controlled substances within
1000 feet of a school were deleted.
Farr pled no contest to three counts of delivering cocaine and one count
of delivering heroin; the other counts were dismissed. The State recommended a twelve-year prison
term followed by probation. The court
imposed sentences which were concurrent in part and consecutive in part
totaling twenty years.
In sentencing Farr, the
trial court noted that he had a long criminal history, had had his probation
revoked on previous occasions and was, at the time of sentencing in this
matter, serving his sixth prison sentence.
The court noted that Farr was originally charged with six counts and a
penalty enhancer which gave him a possibility of ninety-seven years in prison
and substantial fines. The court noted
that under the plea agreement, Farr had reduced his exposure to incarceration
to a maximum term of thirty years. The
court found that Farr had “virtually exhausted the types of [drug] treatment
which are available within the community.”
The court noted that “[d]uring the last treatment program, which
apparently the defendant felt was the most effective, he committed the offenses
which are the subject of the information in this case and for which he appears
for sentencing today.” The court found
that Farr, while knowing he was addicted to drugs, continued to participate in
drug activity and that he sold controlled substances to individuals he did not know,
contrary to his contentions that he was not encouraging anyone else to use
drugs. The court noted that Farr could
have declined to procure the drugs for the undercover officers but did not.
The court deemed
probation inappropriate because Farr committed the offenses while on probation
and had demonstrated an inability to perform while on probation. The court considered Farr's family situation
but felt that granting probation would send a message that criminal activity
would go unpunished. The court noted
that society requires protection from Farr as a consequence of his continued
involvement in drug activity.
In his postconviction
motion, Farr asked the trial court to reduce his sentence to a total of twelve
years by making his sentences on each count concurrent. He argued that the State engaged in
“sentencing entrapment” or “sentencing manipulation” in violation of his due
process rights because undercover officers approached him for drugs several
times even though they knew he was an addict and would participate in drug
transactions. Farr contended that the
numerous transactions were made solely to “stack” the offenses and “ratchet up”
his sentencing exposure. Farr argued
that the remedy for this violation was to modify the sentences to run
concurrently.
Farr also argued that
new factors warranted sentence modification because the trial court miscounted
the number of prison terms Farr had already served, the prosecutor made an
erroneous reference to Farr's alleged failure to report to his probation
officer, and additional information about Farr's background and treatment
record had surfaced since sentencing.
At the postconviction
motion hearing, testimony focused on the manner in which undercover
officers approached Farr to purchase drugs.
Mark Anton, a special agent with the Department of Justice, Division of
Narcotics Investigation in Milwaukee, testified that he was involved in an
undercover operation in Racine County in April and May 1993 (the months during
which Farr committed the charged offenses).
The investigation consisted of a street buy program of six months and
the plan was to wait until June and then conduct a sweep of all drug
transaction participants. Farr came to
Anton's attention, and with the assistance of an informant, cocaine was
purchased from Farr on the first occasion in April 1993. Anton returned to Farr's residence without
the confidential informant to have a controlled substance transaction directly
with Farr. Anton testified that he went
to Farr's residence to conduct this transaction to avoid a situation where a
confidential informant would not be available to assist in the prosecution of
the case and to obtain a first-hand drug transaction experience with Farr which
would make the case more solid.
Anton returned to Farr's
residence on a third occasion (in early May 1993) to purchase heroin in the
hope of learning the source of heroin in the Racine area. Anton explained that the fourth purchase of
cocaine and counterfeit heroin from Farr was initiated to see where Farr went
to obtain the heroin. The investigators
were hoping that as the operation drew to a close they could obtain a search
warrant if they could find out where Farr procured the heroin. Anton testified that Farr's home was under
surveillance during his contacts, but the agents were ultimately unsuccessful
in following Farr to his heroin source.
Cross-examination of
Anton focused on whether Farr was actually followed when he left his residence
to procure the controlled substances requested by the undercover agents. Although the incident reports did not state
that Farr was followed to the source of the drugs, the agent was unable to say
exactly what the surveilling agents had attempted insofar as following Farr.[1] Anton testified that he was aware that Farr
used drugs but was unaware Farr was addicted.
Anton explained that he did not request heroin from Farr until the third
visit because he wanted the second cocaine transaction to go smoothly and he
did not want to get himself into a situation where Farr would ask him to use
heroin with him.
In its memorandum
decision denying Farr's sentence modification motion, the court found Farr's
argument regarding sentence stacking unconvincing in light of evidence of
Farr's willingness to engage in drug transactions on each occasion he was
approached and Anton's testimony that investigators continued to work with Farr
in the hope that they would be able to make inroads into the local heroin
market through him. The court
specifically found “no inappropriate law enforcement activity in this
case. The court finds no evidence that
the agents continued to buy from the defendant for the sole purpose of
ratcheting up a sentence.”
The court also rejected
Farr's request for sentence modification based on new factors. While the court acknowledged that it erred
in counting the number of prison terms Farr had already served,[2]
Farr's prior record was nevertheless an appropriate consideration at sentencing
and the difference between having served five prior prison terms and four prior
prison terms was not a factor which would have affected or frustrated the purpose
of the trial court's sentences. The
trial court also rejected Farr's claim that it misconstrued Farr's missed
treatment appointments. Finally, the
court concluded that supplementary information regarding Farr's treatment for
drug addiction was information which could have been or was presented at the
time of sentencing and did not constitute a new factor. Farr appeals.
Farr renews his sentence
manipulation or stacking argument on appeal.
Findings of fact by a trial court will be upheld by this court unless
they are clearly erroneous. See
§ 805.17(2), Stats. Here, the trial court made factual findings
that there was no inappropriate law enforcement activity and no evidence that
agents continued their contacts with Farr for the sole purpose of “ratcheting
up” his sentence. These findings are
not clearly erroneous in light of Anton's testimony at the postconviction
motion hearing.
We further reject Farr's
sentencing manipulation argument on the grounds that the sentencing
manipulation or entrapment claim was designed for the federal determinative
sentencing scheme which no longer allows judges to take alleged outrageous
official conduct into account at sentencing.
See United States v. Staufer, 38 F.3d 1103, 1106-07
(9th Cir. 1994); see also United States v. Harris, 997
F.2d 812, 818 (10th Cir. 1993) (a federal court cannot adjust a sentence to
account for similar charges that exaggerate a defendant's culpability due to
the repetitive nature of the criminal activity). Wisconsin is an indeterminate sentencing state where trial courts
exercise discretion in sentencing.
Because a trial court may consider a host of factors in sentencing, see
State v. Borrell, 167 Wis.2d 749, 773-74, 482 N.W.2d 883, 892
(1992), such a claim is incompatible with Wisconsin's approach to
sentencing.
We turn to the specific
question of whether the trial court properly exercised its discretion in
sentencing Farr. We presume that the
trial court acted reasonably, and Farr must show that the trial court relied
upon an unreasonable or unjustifiable basis for its sentence. See 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 in imposing a sentence are the gravity of the
offense, the offender's character and the need to protect the public. Borrell, 167 Wis.2d at 773,
482 N.W.2d at 892. The trial court
considered these factors at the sentencing hearing. In his reply brief, Farr argues that the sentencing judge had
discretion to consider the conduct of law enforcement in pursuing Farr. The court did consider that factor on
postconviction motion and specifically found that there was no inappropriate
conduct. We discern no misuse of the
trial court's discretion in sentencing Farr.
Farr has not shown that the court relied upon an unreasonable or
unjustifiable basis in imposing sentence.
See J.E.B., 161 Wis.2d at 661, 469 N.W.2d at
195.
As with the length of
the sentence, whether sentences shall be served consecutively or concurrently
is entrusted to the trial court's discretion.
See State v. Hamm, 146 Wis.2d 130, 156, 430 N.W.2d
584, 596 (Ct. App. 1988). “[T]he
factors that apply to the length of sentence also apply to whether sentences
will run consecutively.” State v.
Anderson, 163 Wis.2d 342, 350-51, 471 N.W.2d 279, 282 (Ct. App.
1991). The trial court's rationale for
the length of its sentences on each count also supports its decision that the
sentences be served consecutively. We
do not see any misuse of discretion.
We also agree with the
trial court that Farr did not demonstrate the existence of new factors
warranting sentence modification. A new
factor is a fact relevant to the imposition of the sentence and unknown to the
trial court at the time of sentencing, State
v. Kaster, 148 Wis.2d 789, 803, 436 N.W.2d 891, 897 (Ct. App. 1989), or
which frustrates the sentencing court's intent, State v. Michels,
150 Wis.2d 94, 99, 441 N.W.2d 278, 280 (Ct. App. 1989). Here, the court noted that none of the
alleged new factors either frustrated its intent at sentencing or were relevant
to the imposition of sentence. Our
review of the sentencing record bears this out.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.