COURT OF APPEALS DECISION DATED AND RELEASED February 27, 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. 95-2436-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHRISTOPHER PHILLIP
RIES,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Affirmed.
SCHUDSON, J.[1] Christopher Ries appeals from the judgment
of conviction for criminal trespass to a dwelling. Ries also appeals from the order denying his motion for
postconviction relief. He seeks a
re-sentencing, arguing that the trial court “abridged [his] right to be
sentenced on the basis of true and correct information.” This court affirms.
Ries was prosecuted for
battery and criminal trespass to a dwelling stemming from an altercation in
which he and Tammy Eastman were involved when Ries entered the back door of
Eastman's apartment after she had refused him entry at the front door. The jury acquitted Ries of the battery
charge but convicted him of criminal trespass to a dwelling. Immediately following the trial, the trial
court sentenced Ries to five months incarceration with release privileges for
work and education.
Ries pursued a
postconviction motion challenging the sentence. He contended, as he does on appeal, that the trial court violated
his right to be sentenced on the basis of true and correct information by
failing to consider the “history of the relationship,” which included Ries's
repeated efforts to move away from Eastman, and his need to seek harassment
injunctions against her.
The supreme court has
explained:
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 facts 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, 681-682, 499 N.W.2d 631, 640-641
(citations omitted), cert. denied, 114 S. Ct. 246 (1993).
The record of Ries's
sentencing reflects the trial court's consideration of the required criteria
and articulation of the basis for Ries's sentence. This court need not detail the trial court's compliance because
Ries does not argue that the trial court failed to consider the required criteria. Indeed, although Ries contends that the
trial court “abridged [his] right to be sentenced on the basis of true and
correct information,” he does not maintain that any of the information
presented to the trial court was untrue or inaccurate. Rather, he argues that the information was
incomplete.
“The responsibility of
the sentencing court is to acquire full knowledge of the character and behavior
pattern of the convicted defendant before imposing sentence.” Elias v. State, 93 Wis.2d 278,
285, 286 N.W.2d 559, 562 (1980). Ries
points out that, at sentencing, no one addressed the history of his
relationship with Eastman. At the
postconviction motion hearing, however, the trial judge noted that he was aware
of the “turbulent relationship,” but stated, “I don't think that that mitigates
the criminal trespass that took place ....”
Ries argues that “[t]he
trial court's absolute refusal to consider the information proffered through
the postconviction motion raises serious questions about whether the three traditional
sentencing factors have ever been meaningfully considered in this case.” Ries's interpretation is belied by the
record. The trial court did not refuse
to consider the information. The trial
court had heard testimony about the history of the relationship during the
trial including Ries's references to prior problems with Eastman and the fact
that he “filed for [a] domestic violence restraining order.” The trial court was apprised of additional
information at the postconviction hearing.
The trial court concluded, however, that the turbulent history of the
relationship did not mitigate and, accordingly, the trial court gave greater
emphasis to other sentencing criteria.
The weight to be given
each of the sentencing factors is fully within the discretion of the sentencing
court. Ocanas v. State,
70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975). At the sentencing in this case, the trial court referred to the
statements of counsel, Ries, Ries's father, Eastman, and to the trial
testimony. The trial court provided a
well-reasoned explanation for emphasizing the nature and seriousness of the
offense, Ries's criminal record, the need for punishment, and the need for
community protection. At the
postconviction motion hearing, the trial court also commented that it “looked
at the fact that this was a situation where the parties did in fact have a
relationship and it was a turbulent relationship, and that was something that
was considered at the sentencing.” Ries
has offered nothing to establish that the trial court abridged his right to be
sentenced based on true and accurate information.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.