COURT OF
APPEALS DECISION DATED AND
RELEASED July
25, 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. 95-2732-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JIMMY
THOMAS,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Rock
County: JAMES E. WELKER, Judge.
Affirmed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
DYKMAN,
J. Jimmy Thomas appeals from a
judgment convicting him of robbery as a repeat offender in violation of §§
943.32(1) and 939.62, Stats., and
an order denying his motion for postconviction relief. Thomas argues that he should be resentenced
because his original sentence was based at least in part on improper and
inaccurate grounds. We conclude that
the trial court properly exercised its discretion in sentencing Thomas. We therefore affirm.
BACKGROUND
On
February 10, 1994, Jimmy Thomas and Tim Fox entered the Lions Quik Mart in
Beloit. While the clerk was waiting on
Thomas at the cash register, Fox came behind the counter, struck her on the
head several times, and took money from the register. Thomas and Fox shared the stolen money to purchase cocaine.
Thomas
was charged with the crime of robbery as a repeat offender, pled guilty on July
25, 1994, and was sentenced on September 8, 1994. The trial court considered
several factors in sentencing Thomas and concluded that a fifteen-year prison
sentence was appropriate.[1] On July 15, 1995, Thomas filed a motion
seeking a vacation of his sentence and resentencing before a different judge on
the grounds that the sentence was based in part on improper and erroneous
grounds. The court denied Thomas's
motion, and Thomas appeals.
STANDARD OF REVIEW
Sentences imposed by the
trial court are deferentially reviewed under an erroneous exercise of
discretion standard. State v.
J.E.B., 161 Wis.2d 655, 661, 469 N.W.2d 192, 195 (Ct. App. 1991). Under this standard, we presume that the
trial court acted reasonably unless the defendant shows some unreasonable or
unjustifiable basis in the record for the sentence. Id.
Unjustifiable sentencing bases include improper or irrelevant
considerations. Id.
DECISION
Thomas
argues that he is entitled to a resentencing because the trial court's
sentencing was based at least in part on improper and inaccurate grounds. Thomas argues that the trial court erred in
finding that his prior plea bargains indicate he has an unfavorable demeanor
and is a manipulator. Thomas also
argues that the court erred in concluding that he is "equally guilty with
Mr. Fox." Finally, Thomas argues
that the court relied on erroneous facts in concluding that he was unwilling to
work, support his child or make restitution.
We
do not need to discuss whether the grounds cited by Thomas were improper or
inaccurate, however. At Thomas's motion
for postconviction relief, the trial court stated that even if it did not
consider the factors that Thomas believed were improper or inaccurate, the
sentence imposed is still appropriate based on the other sentencing factors
mentioned by the court.
When
imposing sentencing, the trial court should consider three factors: the gravity
of the offense, the character of the offender, and the need for public
protection. McCleary v. State,
49 Wis.2d 263, 276, 182 N.W.2d 512, 519 (1971). In addition, it is within the court's discretion to consider the
following factors: (1) the past
record of criminal offense; (2) any history of undesirable behavior
patterns; (3) the defendant's personality, character and social traits;
(4) the results of a presentence investigation; (5) the vicious or
aggravated nature of the crime; (6) the degree of the defendant's
culpability; (7) the defendant's demeanor at trial; (8) the defendant's
age, educational background and employment record; (9) the defendant's
remorse, repentance and cooperativeness; (10) the defendant's need for
close rehabilitative control; (11) the rights of the public; and
(12) the length of pretrial detention.
State v. Tew, 54 Wis.2d 361, 367-68, 195 N.W.2d 615, 619
(1972).
The
trial court properly relied on the factors set forth in McCleary
in sentencing Thomas. First, the trial
court considered the gravity of the offense.
The court noted that Thomas stood by as Fox assaulted and robbed the
store clerk, who suffered serious physical and mental damage as a result of the
robbery. Thomas then shared in the
proceeds of the robbery to purchase cocaine.
Second,
the trial court considered Thomas's character.
The court noted that Thomas's actions could not be dismissed as youthful
indiscretion because he was thirty-five-years old. The court observed that Thomas was a high school graduate and
could have led a law-abiding life. The
court also considered Thomas's past behavior, including fathering a child
outside of marriage and a history of alcohol and drug abuse.
Third,
the trial court considered the need for public protection. When considering the need to protect the
public, the trial court appropriately considered Thomas's extensive criminal
history and stated that the length of his criminal record was the most
important factor considered in Thomas's sentencing. Thomas's criminal record is as follows: On February 12, 1979, he pled guilty to two counts of burglary
and felony theft. For the first
offense, he was sentenced to sixty days in jail and three years' probation, and
for the second offense he was placed on three years' probation to run
concurrent with the probation for the first offense. On June 1, 1981, he pled guilty to three counts of burglary. A five-year prison term was stayed for each
of the burglary convictions and he was placed on five years' probation on each
count concurrent, nine months jail, placed in the Rock Valley Alternative
Program, and assessed costs, attorney fees and restitution. On October 14, 1983, he was fined $97.50 for
obstructing an officer. On November 21,
1983, he pled guilty to the offense of misdemeanor theft. He was sentenced to one year probation, five
days jail, and assessed court costs. On
October 6, 1987, he was fined $97.50 for battery. On October 25, 1988, he was fined $292.00 for shoplifting and
retail theft. He served twelve days in
jail for default of payment. On March
16, 1990, he was sentenced to three years in prison for forgery. On August 31, 1990, he was sentenced to three
years in prison for attempted residential burglary. This sentence was concurrent with the three-year prison sentence
for forgery. Finally, on an unknown
date he was fined $125.00 for carrying a concealed weapon.
It
was not unreasonable or unjustifiable for the trial court to sentence Thomas to
fifteen years in prison based on his history of criminal behavior, his
character and the seriousness of the offense.
The trial court did not erroneously exercise its discretion in imposing
this sentence.
Thomas
argues that if any of the factors considered at the sentencing hearing were
improper or inaccurate, the sentencing process must start over and the trial
court cannot, as it did here, find that the sentence was appropriate even when
accepting the defense's contentions as true.
We disagree.
In
support of his position, Thomas cites to both Brozovich v. State,
69 Wis.2d 653, 230 N.W.2d 639 (1975), and State v. Fuerst, 181
Wis.2d 903, 512 N.W.2d 243 (Ct. App. 1994).
In Brozovich, the trial court sentenced the defendant to
eight years in prison in part because it felt that the defendant had
"gimmicked" the court by obtaining fifteen adjournments before
sentencing. Brozovich, 69
Wis.2d at 659, 230 N.W.2d at 643-44. The Wisconsin Supreme Court remanded the case for resentencing
because there was no specific proof that the adjournments were the defendant's
responsibility. Id. at
662, 230 N.W.2d at 645. The court
concluded that "consideration of the number of adjournments, without proof
of the defendant's responsibility thereof, constitutes an abuse of
discretion." Id. at
662-63, 230 N.W.2d at 645.
In
Fuerst, the trial court rejected probation for the defendant,
basing its decision on several factors, including its belief that the defendant
had "very little religious conviction." Fuerst, 181 Wis.2d at 909, 512 N.W.2d at 244. We concluded that "it is
unconstitutional to use a lack of religious beliefs to determine an appropriate
sentence" and remanded the case for resentencing. Id. at 914, 915, 512 N.W.2d at
247.
Thomas's
case is distinguishable from Brozovich and Fuerst. At Thomas's postconviction hearing, the
trial court explained its sentencing decision by stating that the sentence was
appropriate when considering only the factors that both parties accepted as
proper. In neither Brozovich
nor Fuerst did the trial court clarify its sentencing
rationale. In Fuerst, we
implied that if the court had clarified its sentencing decision, we would have
upheld the sentence:
The court had the
opportunity at the postconviction hearing to clarify its statements concerning
Fuerst's religious convictions and practices, and to state that it in fact did
not consider those factors when it imposed sentence. The court, however, did not do so. Because the trial court did not state on the record that it was
not considering Fuerst's lack of religious convictions ... [w]e are ...
compelled to reverse the order, vacate the sentence and remand the matter for
resentencing without the consideration of Fuerst's religious beliefs or
practices.
Id. at 915, 512 N.W.2d at 247.
Here, however, the trial court did clarify its statements, noting that
its sentencing decision was appropriate even if it did not consider the factors
Thomas contends are improper.
Thomas's
case is more analogous to State v. Way, 113 Wis.2d 82, 334 N.W.2d
918 (Ct. App. 1983). In Way,
the trial court sentenced the defendant to the maximum term of imprisonment for
his conviction for escape. Id.
at 90, 334 N.W.2d at 921. The trial
court considered numerous factors, including a presentence report, in imposing
Way's sentence. Id. at
91, 334 N.W.2d at 922. When Way
requested the trial court to modify his sentence, he revealed an error in the
sentencing report to the court. Id. Way argued that the trial court abused its
discretion by relying on the erroneous presentence report. Id. We affirmed the trial court's order, stating:
The trial court in refusing to modify his sentence
obviously did not believe this error justified a modification of Way's
sentence. On appeal, we agree with the
trial court; we find there are sufficient other facts presented in the record
which would justify the trial court sentencing Way to three years' imprisonment.
Id. Likewise, we find that when
not considering the facts controverted by Thomas, there are still sufficient
facts presented in the record to justify Thomas's fifteen-year prison sentence.
Thomas
argues that Way is not applicable to his case because Way sought
postconviction modification of his sentence, while Thomas seeks
resentencing. We fail to see the
importance of Thomas's distinction.
Regardless of whether the defendant seeks sentence modification or
resentencing, our standard for reviewing the trial court's sentencing is the
same: "[W]e will remand for sentencing or modify the sentence only when an
abuse of discretion clearly appears."
McCleary, 49 Wis.2d at 278, 182 N.W.2d at 520. We conclude that the trial court did not
erroneously exercise its discretion, and therefore affirm.
By
the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.