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COURT OF APPEALS DECISION DATED AND RELEASED November 14, 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. 95-1374-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS DEFFKE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: CHARLES F. KAHN, JR.,
Judge. Affirmed.
SULLIVAN,
J. Thomas Deffke appeals from a judgment of conviction, after a no
contest plea, for contributing to the delinquency of a child, contrary to
§ 948.40(1), Stats. He also appeals from an order denying his
motion for postconviction relief. The
trial court sentenced Deffke to six months incarceration in the Milwaukee
County House of Correction with Huber privileges. Deffke challenges this sentence, arguing that the trial court
erroneously exercised its discretion by placing “too much” emphasis one of the
sentencing factors that the trial court was required to consider during
sentencing. Deffke also argues that his
due process rights were violated at his sentencing by the trial court's alleged
partiality. Finally, he argues that the
trial court erred by failing to disqualify itself under § 757.19(2)(g), Stats., because Deffke alleges the
trial court could not act in an impartial manner in the case. This court rejects all three arguments and
affirms.[1]
I. BACKGROUND
At 2:25 a.m. on June 12,
1994, Village of Grafton Police Officer Emmitt Grissom, while stopped in a gas
station parking lot, spotted an automobile, with a lone occupant, make an
erratic turn onto Highway 60. Officer
Grissom pursued the automobile, which accelerated and began weaving into the
oncoming traffic lane. Officer Grissom
activated his emergency lights and siren, and the car accelerated to speeds of
over ninety miles per hour. At the
intersection of Lakeshore and Ulao Roads in the Town of Grafton, the automobile
exited the road, severing posts and trees before it slammed into a large tree
on top of a bluff. The driver, Greta
Abraham, was killed instantly due to massive trauma to the head and torso.
Abraham, a
seventeen-year-old juvenile, had just graduated from Shorewood High
School. The autopsy performed by the
Milwaukee County Medical examiner revealed that Abraham had a blood alcohol
level of “.26 gram percent ethyl alcohol.”
The criminal complaint
filed against Deffke alleged that he and his wife had thrown a graduation party
for their son, a classmate of Abraham's.
According to the complaint, numerous affiants, both adults and
juveniles, reported that many of the teenagers present at the party were
drinking beer and other alcoholic beverages.
Further, the affiants stated that Deffke knew that “drinking by kids was
going on.” One juvenile stated that
Deffke told him that “it was O.K. if the graduates drank, as long as they had
their parents['] permission.” Finally,
the affiants stated that Abraham was seen drinking beer at the party, and that
she was “drunk.” Abraham and a friend
left Deffke's house around midnight and went to the friend's house. At 1:00 a.m., Abraham told her friend that
she was going for a walk, but instead she drove off in her car. She died a short time later.
After a police
investigation into Abraham's death, the Milwaukee County District Attorney's
office charged Deffke with contributing to the delinquency of a child; namely,
supplying Abraham, an underage juvenile, with alcoholic beverages.[2] After plea negotiations with the State,
Deffke pleaded no contest to the charge and the trial court sentenced him.
II. ANALYSIS
Deffke first argues that
the trial court erroneously exercised its sentencing discretion by placing “too
much” emphasis on the need to protect the community and the gravity of the
offense, in the face of other alleged mitigating factors. This court disagrees.
The supreme court has
recently considered the issue of trial court sentencing:
Sentencing is left to
the discretion of the trial court, and appellate review is limited to
determining whether there was an erroneous exercise of discretion. We recognize a “strong public policy against
interference with the sentencing discretion of the trial court and sentences
are afforded the presumption that the trial court acted reasonably.” This court is reluctant to interfere with a
trial court's sentence because the trial court has a great advantage in
considering the relevant factors and the demeanor of the defendant. The defendant must show some unreasonable or
unjustifiable basis in the record for the sentence imposed.
The trial court must
articulate the basis for the sentence imposed on the facts of record. There should be evidence in the record that
discretion was in fact exercised.
The
primary factors the trial court must consider in imposing sentence are: (1) the
gravity of the offense, (2) the character and rehabilitative needs of the
offender, and (3) the need for protection of the public. As part of these primary factors the trial
court may consider: the vicious and aggravated nature of the crime; the past record
of criminal offenses; any history of undesirable behavior patterns; the
defendant's personality, character and social traits; the results of a
presentence investigation; the degree of the defendant's culpability; the
defendant's demeanor at trial; the defendant's age, educational background and
employment record; the defendant's remorse, repentance, and cooperativeness;
the defendant's need for rehabilitative control; the right of the public; and
the length of pretrial detention.
State
v. Echols, 175 Wis.2d 653, 681-82, 499 N.W.2d 631, 640-41 (1993)
(citations omitted). Further, the
weight to be given to each of the factors is within the trial court's
discretion. State v.
Curbello-Rodriguez, 119 Wis.2d 414, 434, 351 N.W.2d 758 (Ct. App.
1984).
Deffke argues that the
trial court's statements during sentencing concerning Abraham's death show that
the trial court was basing its sentence on the death of Abraham, an incident
that Deffke was not charged with by the State.
This court disagrees with Deffke's argument that the trial court
erroneously placed too much weight on Abraham's tragic death in sentencing him.
The gravity of a
defendant's offense is a primary sentencing factor; likewise, so is the need to protect the public. In considering these factors, the trial
court should review the entirety of the events surrounding the commission of
the crime. In this case, Deffke pleaded
guilty to contributing to the delinquency of a child, the premise of which was
Deffke's tacit supplying of Abraham with alcoholic beverages at his son's
graduation party. Abraham later died as
a result of a car accident in which alcohol was clearly a substantial
factor. While it is unclear exactly how
much of the alcohol supplied at Deffke's party led to Abraham's .26 percent
blood alcohol level, clearly Abraham was intoxicated when she left Deffke's
home. Several of the affiants to the
criminal complaint attest to this fact.
The trial court was rightly concerned that the ultimate gravity of the
charged offense was greater because of Abraham's death. One cannot completely separate the chain of
events that led to this tragic death—and Deffke's supplying of alcohol was one
of these inseparable events. The trial
court properly considered this factor, and this court cannot conclude that the
trial court erroneously exercised its discretion by placing “too much emphasis”
on this factor. Id. Further, the record shows that the trial
court reviewed the mitigating factors and affidavits and testimony filed in
support of Deffke before sentencing him.
Thus, this court cannot ascertain an erroneous exercise of discretion on
the part of the trial court.
Deffke next contends that his due process
rights were violated by the trial court's alleged partiality resulting out of
its focus on Abraham's death. His
argument is specious. While it is clear
that the trial court was concerned throughout the proceedings about Abraham's
death, this court's de novo review of the record locates not one
scintilla of evidence that the trial court treated Deffke unfairly. See State v. Rochelt,
165 Wis.2d 373, 378-79, 477 N.W.2d 659, 661-62 (Ct. App. 1991). “A litigant is denied due process only
if the judge, in fact, treats him or her unfairly. A litigant is not deprived
of fundamental fairness guaranteed by the constitution either by the appearance
of a judge's partiality or circumstances which might lead one to speculate as
to his or her partiality.” State
v. Hollingsworth, 160 Wis.2d 883, 894, 467 N.W.2d 555, 560 (Ct. App.
1991) (emphasis added, citation omitted).
The record fails to show how the trial court treated Deffke unfairly.
Finally, Deffke
questions whether the sentencing judge made an objective determination
requiring disqualification under § 757.19(2)(g), Stats. His argument
on this issue is cursory and insufficiently developed; accordingly, this court
will not address it. State v.
Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct. App. 1992) (court
of appeals may decline to review an issue inadequately briefed).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.