COURT OF APPEALS DECISION DATED AND RELEASED February 22, 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. 95-2014-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RODGER A. DIERKS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Lafayette County:
WILLIAM D. JOHNSTON, Judge. Affirmed.
EICH, C.J.[1] Rodger Dierks, appearing pro se, appeals
from a judgment of conviction and sentence on seven counts of making threats of
harm over the telephone.[2] Dierks pled guilty to all seven counts and
was placed on probation.
His probation was
revoked after he was found to have violated several of the conditions of his
release, and he was returned to court for sentencing, receiving the maximum
sentence of 90 days incarceration on each count, to be served
consecutively. He claims the total
630-day sentence was excessive "for 1st time violation of probation,"
and he states: "County jail is too much for a non-violent
crime." We affirm the judgment.
We begin by noting that,
contrary to Dierks's statement, he was sentenced not for a "violation of
probation" but for the seven offenses of which he was convicted. And, in context, they are anything but non-violent.
The complaint alleged
that, on October 1, 1994, Dierks made seven telephone calls to his wife, in
which he repeatedly threatened to kill her and her daughter (his stepdaughter)
and their dogs, threatened to kill himself (stating that he had already cut his
throat and wrists), and proclaimed that he was going to burn all of her
belongings. In later calls, he said
that he had killed his wife's dog, that her house was burning, and that he had
hired men to kill her. All of the calls
were laced with the basest obscenities.
Dierks entered into a
plea agreement under which, in exchange for the State's recommendation of
probation on all counts, he agreed to several conditions, including
participation in treatment programs and abstinence from alcohol and controlled
substances. Other conditions forbade
him from having any contact with his wife or other family members and required
that he "not commit any crimes or engage in criminal activity." Judgment withholding sentence and placing him
on probation was entered on October 17, 1994.
His probation was
revoked a few months later after he continued to drink and again threatened to
kill his wife and to have her eleven-year-old daughter "kidnapped,
sexually assaulted and killed"--threats which were overheard by the young
girl. On the same day he also stabbed
his stepson in the chest with a pencil.
The State argues that
because Dierks did not challenge the reasonableness of his sentence in the
trial court, his appeal is premature. See
Spannuth v. State, 70 Wis.2d 362, 365, 234 N.W.2d 79, 81
(1975). Given Dierks's pro se status,
however--and in the interest of judicial economy--we elect to consider the
merits of his claim.
As indicated, Dierks
challenges the length of his sentence, and he supports his argument not with
any legal or factual arguments but with photocopies of newspaper articles
indicating that other people charged with various misdemeanors in various
courts received lesser sentences than his, and with unreferenced assertions
about the sentencing judge's friendship with the district attorney and attacks
on his probation officer, his lawyer and others. His brief also contains a list of telephone numbers of people he
claims will "give [him] a good reference."
Sentencing is committed
to the sound discretion of the trial court, and our review is limited to
determining whether there has been a "clear" abuse of that
discretion. McCleary v. State,
49 Wis.2d 263, 278, 182 N.W.2d 512, 520 (1971). Our limited review in this area reflects the strong public policy
against interference with sentencing discretion; we presume that the trial
court acted reasonably, and we assign to the defendant the burden of
"show[ing] some unreasonable or unjustified basis in the record for the
sentence complained of." State
v. Harris, 119 Wis.2d 612, 622-23, 350 N.W.2d 633, 638-39 (1984). We do so, at least in part, because the
trial court "has a great advantage in considering the relevant factors and
the defendant's demeanor." State
v. Roubik, 137 Wis.2d 301, 310, 404 N.W.2d 105, 108 (Ct. App. 1987).
We have also said:
We will not disturb a sentence imposed by the
trial court unless the ... court [erroneously exercised its discretion]. Indeed, "[t]here is a strong policy
against interfering with the trial court's sentencing discretion." Further, the trial court is presumed to have
acted reasonably, and the burden is on the appellant to "show some
unreasonable or unjustifiable basis in the record for the sentence complained
of."
State
v. Thompson, 172 Wis.2d 257, 263, 493 N.W.2d 729, 732 (Ct. App.
1992) (citation and quoted sources omitted).
Finally, as we also have
said, we will not reverse a sentence on a claim of excessiveness unless it is
"so excessive and unusual and so disproportionate to the offense committed
as to shock public sentiment and violate the judgment of reasonable people
concerning what is right and proper under the circumstances." Ocanas v. State, 70 Wis.2d
179, 185, 233 N.W.2d 457, 461 (1975).
The trial court
explained the reasons underlying the sentence in considerable detail.
[T]he facts of this case ... were
astounding in terms of the potential for violence.
...
[T]he threats ... were as real and as dangerous as any that I have seen come
across my bench ... since I have been [in office]. The thing that struck me as extremely significant was the extent
of the violence that ... was found by the police, the destruction to the house,
the striking out [in] every [conceivable] way ... at the very things that were
important to Mr. Dierks's stepdaughter, to his wife, the home, trashing of the
home, the burning of the clothes and items of personal property that related to
his wife and his stepdaughter, the threats relating to the physical abuse of
the stepdaughter, kidnapping, the sexual assaulting of the stepdaughter,
killing of her dogs, the family dogs.
....
...
You were placed on probation. You were
given every opportunity by that probation to address these [problems], and if
these matters were important to you, it rested in your hands ... and now what I
have to judge when I look at the severity and gravity of the offense, when I
look at the character and personality and social traits of yourself, when I
look at the rights of the public and the protection of the rights of the
public, what I have to look at is what you did ....
....
In this latest episode ... the reason for
revoking your probation is that ... the gravity of these offenses hasn't sunk
into you yet. You are still using
threats, force, manipulation on these people ... and ... other members of the
public ... and certainly the public at large, have a right to be protected from
this.
The court concluded by
noting that until Dierks himself resolves to address his problems, "all we
can do is protect people [and] deter this type of conduct by you and by
others," and that the only way to accomplish that end is through
incarceration.
There is no question
that the trial court exercised its discretion in examining and considering the
three basic factors in sentencing: the gravity of the offense, the character of
the defendant, and the need for protection of the public. Cunningham v. State, 76 Wis.2d
277, 281, 251 N.W.2d 65, 67 (1977).
"And where, as here, the record shows that the court looked to and
considered the facts of the case and reasoned its way to a conclusion that is
(a) one a reasonable judge could reach and (b) consistent with applicable
law," the court has appropriately exercised its discretion and we will
affirm its decision even if it is one with which we ourselves would not agree. Burkes v. Hales, 165 Wis.2d
585, 590-91, 478 N.W.2d 37, 39 (Ct. App. 1991) (citation omitted). That is the case here. The trial court did not erroneously exercise
its discretion in sentencing Dierks.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Dierks was charged with six counts of violating § 947.012(1)(a), which makes it a misdemeanor to intentionally "make[] a telephone call and threaten[] to inflict injury or physical harm to any person or the property of any person," and one count of violating § 947.012(1)(b), which similarly penalizes one who "[w]ith intent to frighten, intimidate, threaten or abuse, telephones another and uses any obscene, lewd or profane language ...."