COURT OF APPEALS DECISION DATED AND RELEASED JUNE 18, 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
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Nos.95-2408-CR
95-2409-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PATRICK T. ROBERTS,
Defendant-Appellant.
APPEALS from judgments
and an order of the circuit court for Marathon County: ANN WALSH BRADLEY, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Patrick Roberts appeals his conviction for bail
jumping and second-degree sexual assault of a child, having pleaded no contest
to the charges. By postconviction
motion, he alleged that the trial court improperly sentenced him to five years
in prison, while his two accomplices received probation with six-month and
thirty-day jail terms, respectively.
Roberts also sought to withdraw his plea on the ground that his trial
counsel's plea legal advice had the effect of inducing the plea by threat. Trial counsel warned Roberts that he could
receive a harsher sentence by trial than by plea. We reject Roberts' arguments and, therefore, affirm his
conviction.
Trial courts have wide
discretion in their sentencing decisions.
State v. Evers, 139 Wis.2d 424, 452, 407 N.W.2d 256, 268
(1987). Sentencing courts consider a
wide array of factors, including the gravity of the offense, the character of
the defendant, the protection of the public, the interests of deterrence, the
defendant's degree of culpability, the nature of his prior record, and his
level of remorse. State v. Perez,
170 Wis.2d 130, 143, 487 N.W.2d 630, 635 (Ct. App. 1992). Sentences must have a reasonable basis in
the record and demonstrate a logical process of reasoning based on the facts of
record, and proper legal standards. McCleary
v. State, 49 Wis.2d 263, 277, 182 N.W.2d 512, 519-20 (1971).
Differences in sentences
do not by themselves show that the sentences were impermissibly disparate. Perez, 170 Wis.2d at 144, 487
N.W.2d at 635. Leniency in one case
does not transform a reasonable punishment in another case into an impermissible
one. Id. Litigants claiming impermissibly disparate
sentences have the burden of proving this claim, often by showing that the
disparity was arbitrary or based on considerations not pertinent to proper
sentencing. Id. In other words, the trial court's sentence
enjoys a presumption of correctness that the defendant has the burden of
overcoming. Here, Roberts has not shown
that his sentence was impermissibly disparate.
In essence, Roberts
claims that he and his accomplices displayed equivalent degrees of culpability
in the sexual assault itself and that he therefore deserved an equivalent
sentence. Comparable culpability is
only one of many factors that control a sentence's fairness. Roberts did not demonstrate to the trial
court that he and his accomplices had similar backgrounds, character
shortcomings or rehabilitative needs.
He is unable to point to anything in the record on these issues. Roberts had the burden of bringing such
evidence to the trial court's attention.
In the absence of such evidence, we conclude that the trial court
sentenced Roberts in proportion to his culpability, background, rehabilitative
needs and the public's need for protection from him.
Roberts also has not
shown that his plea was involuntary.
Roberts may invalidate his plea if it was not intelligent and
voluntary. State v. James,
176 Wis.2d 230, 238, 500 N.W.2d 345, 348 (Ct. App. 1993). However, trial counsel's legal advice
concerning possible sentences does not constitute a threat that the law recognizes
as invalidating a plea. Most defendants
enter pleas in the expectation that the plea will produce a lesser sentence
than would result after a trial. Fear
of greater sentences is an inherent part of the plea process. It is not something that constitutes an
impermissible, plea invalidating threat.
In sum, Roberts has provided no basis for withdrawing his no contest
plea.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.