COURT OF APPEALS DECISION DATED AND RELEASED APRIL 24, 1996 |
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No. 95-2258-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
NORGIE VIERAS,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER, Judge.
Reversed and cause remanded.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
ANDERSON, P.J. Norgie Vieras appeals
from judgments of conviction for one count of second-degree reckless
endangerment with a weapon, as a repeater contrary to §§ 941.30(2), 939.63 and
939.62(1)(b), Stats., and two
counts of battery, as a repeater contrary to §§ 940.19(1) and 939.62(1)(b), Stats.
He also appeals from an order denying his motion for postconviction
relief. We conclude that the trial
court's inferences about the possibility of emotional harm to Vieras' children
who witnessed the crimes were unsupported by any evidence in the record and
were therefore unreasonable. Accordingly,
we reverse the trial court and remand for resentencing.
According to the criminal complaint, Vieras'
girlfriend and mother of his two children, Selena Davison, was at her home with
Vieras. They were arguing, and Vieras
grabbed a kitchen knife and began chasing her.
He pushed her up against a door, put the knife to her neck and said, “Do
you want to die.” Vieras threw the
knife down and punched Davison in the arm.
The children were in the home at the time of this incident. The next day, Vieras, Davison and the two
children were in the car when Vieras started to shout at Davison and hit her on
the left side of her face. That
evening, after more argument, Vieras threw a spray bottle at Davison, striking
her on the right leg. Later, Vieras
allegedly wrote Davison a note threatening to kill her father.
Vieras pled guilty to
two counts of battery and one count of second-degree reckless endangerment with
a weapon, all as a repeater. The trial
court entered judgments of conviction on these three counts. At sentencing, the trial court stated:
That's part of the reason we have so much
crime is that people can fantasize like that and not know that they are going
to have to answer for their conduct.
Answer for torturing these children.
Sentencing these children to a life of the awful memories that they will
have because of your behavior.
....
The children should not have to grow up
in fear. I heard a tape on TV the other
night they played back one of these 911 tapes of one of these crying children
about how father is beating mother up.
And I think this kid is going to be miserable from this incident for the
rest of his life. When he is 80 years
old, he'll still be suffering from the fact that his father was for whatever
reason beating his mother up.
The
trial court went on to state: “So I
reject entirely the suggestion that probation has any part to play in the
immediate future of this man.”
Vieras filed a motion
for postconviction relief, alleging that the sentence constituted an erroneous
exercise of discretion because it was not supported by an adequate statement of
reasons for the penalty imposed or by accurate information. The trial court denied the motion. Vieras appeals.
Vieras argues that he
should be resentenced because “there is no support in the record for the
sentencing judge's assumption that [his] conduct had emotionally damaged his
children.” Sentencing is within the
discretion of the trial court. State
v. Roubik, 137 Wis.2d 301, 310, 404 N.W.2d 105, 108 (Ct. App.
1987). The sentencing court, in
imposing sentence, is presumed to have acted reasonably, and the burden is on
the defendant to show an unreasonable or unjustifiable basis in the record for
the sentence. Id.
This case requires that
we review the trial court's inferences at sentencing. In exercising its discretion, the trial court must use a process
of reasoning that depends on facts that are of record or that are reasonably
derived by inference from the record and a conclusion based on a logical
rationale founded upon proper legal standards.
Christensen v. Economy Fire & Casualty Co., 77 Wis.2d
50, 55-56, 252 N.W.2d 81, 84 (1977) (emphasis added). Just as jurors may take into account matters of their common
knowledge and their observations and experiences in the affairs of life, so too
may the trial court in reaching a decision.
See Wis J I—Criminal § 195.
We keep in mind that it
is not within the province of this court or any appellate court to choose not
to accept an inference drawn by a fact finder when the inference drawn is a
reasonable one. State v. Friday,
147 Wis.2d 359, 370-71, 434 N.W.2d 85, 89 (1989). In reviewing the trial court's inferences, we look to a reasonableness
standard: the defendant has the burden
of showing that no reasonable judge could have reached the inferential finding
made and that the judge then relied upon the inferential finding when imposing
sentence. Here, the issue is whether
the trial court could make and use the inferential finding at sentencing that
Vieras' children would suffer long-term emotional harm as a result of his abuse
of their mother.
The trial court made
repeated references at sentencing to the psychological harm caused to the
children who witnessed the abuse. It is
evident that the court relied upon the effect of Vieras' crimes had on his
children. At sentencing, the court
questioned Davison as follows:
THE COURT: ¼ Now,
were there any children present when this happened by the way, August 30, 1994?
MS. DAVISON: Yes.
....
THE COURT: Where were they?
MS. DAVISON: We were in the kitchen and they were in a separate room.
THE COURT: ¼
August 31, 1994. Driving on Roosevelt
Road. Anybody else in the car? ¼.
MS. DAVISON: Me and Norgie and the children.
The
factual record before the court did not support the court's assertions that the
children were “tortured” or that they were sentenced “to a life of ¼
awful memories.” It is not a reasonable
inference from the evidence that this incident would psychologically damage the
children for life. The inferences drawn
by the trial court were unreasonable in light of the children's ages, two and
one-half years old and one year old, and the lack of evidence in the
record. In addition, there was no
evidence that the children had exhibited any trauma since the incidents.
Our conclusion in the
present case does not prevent a trial court from reaching reasonable inferences
in similar cases. While the trial court
may reasonably draw inferences of the long-term consequences affecting victims
of a crime, the same inferences cannot be made concerning the children who
witnessed the abuse without support in the record. Pursuant to statute, the presentence investigator shall attempt
to contact the victim of a crime to determine the psychological effect of the
crime on the victim. See §
972.15(2m), Stats.; see also State
v. Horn, 126 Wis.2d 447, 461, 377 N.W.2d 176, 182 (Ct. App. 1985), aff'd,
139 Wis.2d 473, 407 N.W.2d 854 (1987).
Similarly, the person preparing the PSI report could properly interview
a child whose parent was abused pursuant to the statute's language: “The person preparing the report may ask any
appropriate person for information.”
Section 972.15(2m). In the
present case, there was no information in the PSI report concerning what the
children saw and the trial court could only speculate as to the impact the
incident had on them. We therefore
remand the case for resentencing.[1]
Because of our decision
here, we need not reach Vieras' alternative assertion that an evidentiary
hearing should be ordered to allow him to prove the factual allegations in his
postconviction motion.
By the Court.—Judgments
and order reversed and cause remanded.
Recommended for
publication in the official reports.
No. 95-2258-CR
NETTESHEIM, J. (concurring). I concur with the majority opinion that the
trial court erred in the exercise of its sentencing discretion in this
case. I write separately to clarify and
stress that the commission of a criminal act in the presence of young children
can be a relevant and aggravating factor which a trial court may, in the proper
exercise of discretion, consider when imposing sentence.
It may be that this was
what the trial court was attempting to convey in this case. However, as the majority opinion correctly
holds, the court's words went too far by concluding, without supporting
information or data, that the young children were “tortured” and scarred for
life as a result of Vieras' criminal acts.