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. 95-2481-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID A. ACHENBACH,
Defendant-Appellant.
APPEAL from orders of
the circuit court for Milwaukee County:
TIMOTHY G. DUGAN, Judge. Affirmed.
WEDEMEYER, P.J.[1] David A. Achenbach, pro se, appeals
from an order denying his request for sentence credit and an order clarifying
the record. Achenbach claims the trial
court erred in denying his motion for sentence credit and that the
“clarification” was actually an improper modification of his sentence. Because the trial court did not err in
denying Achenbach's motion and because the clarification of the sentence was
not improper, this court affirms.
I. BACKGROUND
Achenbach was convicted
of three counts of lewd and lascivious behavior. On February 11, 1994, he was sentenced on each count. The trial court imposed a nine-month term on
count one, a nine-month term on count two (consecutive to count one), and a
nine-month term, stayed, with three years probation on count three.
On August 29, 1995,
Achenbach brought a motion for sentencing credit. He had served the two nine-month terms for counts one and two and
essentially argued that because count three was concurrent with count one, he
should be granted sentencing credit for that count. The trial court denied his motion, indicating that count three
was intended to be consecutive to the other counts. The trial court explained that imposing a nine-month term,
stayed, with probation concurrent to the other terms would lead to an
absurd result. The trial court
determined that the sentencing transcript was ambiguous and the record should
be clarified so that the sentence for the third count was consecutive to the
others. Achenbach now appeals.
II. DISCUSSION
Achenbach argues that
the trial court erred in denying his motion and that the clarification was
actually an improper modification of his sentence. 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). Achenbach does not
argue that the trial court failed to consider the proper factors in
sentencing. Rather, he claims the trial
court cannot modify the sentence eighteen months after the original sentence
was imposed. Nonetheless, this court's
review is still limited to whether the trial court erroneously exercised its
discretion.
In considering whether the
trial court erroneously exercised its discretion in clarifying the record, this
court independently reviewed the record in its entirety. It is clear from the original sentencing
transcript that the sentence for count three was to be served consecutive to
the other counts. Although it would be
preferable for the trial court to have specifically stated this at the time of
sentencing, this court agrees that there is no other reasonable interpretation.
This court does not
agree that the clarification of the record was actually a modification
of the sentence. Achenbach's sentence
on count three did not change. From the
time of the original sentencing, it clearly was intended that the sentence be
served consecutively. As noted by the
trial court, imposing a concurrent, but stayed sentence with probation would be
absurd. The purpose for staying a
sentence and imposing probation is to encourage the defendant to comply with
the probation terms in order to avoid having to go back to serve the stayed
sentence. Accordingly, this court
concludes that the trial court did not erroneously exercise its discretion
because it is allowed to clarify the sentence.
Krueger v. State, 86 Wis.2d 435, 272 N.W.2d 847 (1979).
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.