COURT OF APPEALS DECISION DATED AND RELEASED May 15, 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. 95-1364-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHARLES E. ESTEP,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Kenosha County: ROBERT V. BAKER, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Charles E. Estep appeals from a judgment convicting
him of being party to the crime of armed burglary, aggravated battery with a weapon,
and first-degree reckless endangerment with a weapon, all as a repeater. He also appeals from the circuit court order
denying his motion for sentence modification.
Because the circuit court did not err in sentencing Estep or declining
to modify his sentence, we affirm.
Estep pled no contest to
the above-mentioned felonies. The
incidents arose out of a home invasion by Estep and another during which
persons in the home were terrorized and one was beaten. Although originally charged with seven felonies,
Estep's plea agreement resulted in no contest pleas to three felonies; the
other four were dismissed. The court
sentenced Estep to a total of twenty-nine years in prison and a fifteen-year
probation term to be served consecutively to the prison sentences. Estep moved the court to modify his sentence
claiming that it was unduly harsh, that the court did not give sufficient
weight to his traumatic childhood and that evidence of a 1992 diagnosis that he
suffers from antisocial personality disorder, posttraumatic stress disorder and
substance abuse constituted a new factor warranting sentence modification. The court declined to modify the
sentence. Estep appeals.
We review whether the
trial court misused its sentencing discretion.
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). We presume that the trial court acted
reasonably, and the defendant must show that the trial court relied upon an
unreasonable or unjustifiable basis for its sentence. Id. 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. See State
v. Teynor, 141 Wis.2d 187, 219, 414 N.W.2d 76, 88 (Ct. App. 1987). We conclude that the trial court properly
exercised its discretion in sentencing Estep and that its sentence does
not shock public sentiment. See id.
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. State v. Borrell, 167 Wis.2d
749, 773, 482 N.W.2d 883, 892 (1992).
Estep complains on
appeal that the trial court did not consider his rehabilitative needs and that
evidence that he suffers from posttraumatic stress and other disorders
presented at the sentence modification hearing should have motivated the court
to modify the sentence.
We disagree. The transcript of the sentencing hearing
indicates that the court considered the following in sentencing
Estep. The court reviewed the
presentence investigation report which discussed Estep's traumatic and violent
childhood, the gravity of the offenses (which the trial court found to be
extreme), and Estep's character and conduct before and after the offenses. Given the nature of the offenses, the court
concluded that the public required protection from Estep. For these reasons, the court imposed a total
of twenty-nine years in prison. The
court indicated that it expected Estep to receive treatment for alcohol and
drug problems while in prison.
We see no misuse of the
trial court's discretion. It was within
the court's discretion to weigh the gravity of the offenses and Estep's
character more heavily than the rehabilitative needs arising from Estep's
traumatic childhood.
We also disagree with
Estep that the 1992 diagnosis of posttraumatic stress and other disorders
constituted a new factor requiring 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. See State v. Michels,
150 Wis.2d 94, 100, 441 N.W.2d 278, 281 (Ct. App. 1989). Here, the court was aware of Estep's
difficult childhood and its life-long impact.
The fact that disorders were diagnosed in 1992 based upon facts which
were before the court at the time of sentencing in 1994 is not a new
factor.
Finally, Estep argues
that the trial court's apparent misunderstanding as to when he would be
eligible for parole invalidates the sentence.
In sentencing Estep, the court did not refer to the possibility of
parole. It was only at the hearing on
Estep's sentence modification motion that the court speculated about the
possibility of parole. There is no
indication that the court relied upon the possibility of parole in fashioning
Estep's sentence in the first instance.
In referring to the possibility of parole, the court was indicating that
any possibility of early release would be decided by the parole board.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.