COURT OF APPEALS DECISION DATED AND RELEASED MAY 21, 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.
95-2834-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
OTIS E. JOHNSON,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Marathon County:
MICHAEL W. HOOVER, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Otis Johnson appeals an order denying his motions for
resentencing. He argues that the trial
court applied a preconceived sentencing policy and failed to consider
significant mitigating circumstances when it sentenced him to twenty years in
prison. We reject these arguments and
affirm the order.
Johnson was initially
charged with three counts of sexual intercourse with a child. Pursuant to a plea agreement, he entered a
no contest plea to count one. Counts
two and three were dismissed but read in for sentencing. The court initially withheld sentence and
placed Johnson on probation for five years.
His probation was revoked after Johnson failed to keep appointments with
a sex offender treatment program. The
trial court then sentenced him to twenty years in prison.
The primary factors a
sentencing judge must consider are the gravity of the offense, the character
and rehabilitative needs of the defendant and the need to protect the
public. See State v.
Sarabia, 118 Wis.2d 655, 673, 348 N.W.2d 527, 537 (1984). As part of these primary factors, the court
may consider the aggravated nature of the offense, the defendant's criminal
record, his history of undesirable behavior patterns, his personality,
character and social traits, the presentence report, the degree of the
defendant's culpability, his demeanor at trial, his age, education, background
and employment record, his remorse, repentance and cooperativeness, the need
for rehabilitative control and the rights of the public. There is a strong policy against
interference with the trial court's discretion in imposing sentence. See State v. Borrell,
167 Wis.2d 749, 773-74, 482 N.W.2d 883, 892 (1992). Here, the trial court specifically noted the seriousness of the
offense, a three-year pattern of intercourse with his daughter commencing when
she was nine years old. The court also
noted Johnson's failure to positively respond to probation and his failure to
accept responsibility for his acts.
Imposition of the maximum sentence is justified by the trial court's
findings.
In the process of
pronouncing sentence, the trial court made two statements that Johnson contends
demonstrate a preconceived sentencing policy.
First, after counsel had completed their arguments and the court
announced that it would sentence Johnson to twenty years, the court noted that
the sentence was indeterminate and that Johnson might be able to convince the
parole board "what he would never be able to convince me [Judge Hoover]
of, which is that he is worthy of release on parole short of the mandatory
release date ...." This comment
does not establish that the trial court applied a preconceived sentencing
policy. The statement was made after
the sentence was pronounced and reflects the court's postsentence attitude
about the prospect of parole.
The second statement,
"you don't get to have the same opportunity twice, Mr. Johnson,"
refers specifically to this case and does not establish a predetermined policy
of harsh sentences for defendants who violate their probation.
Johnson contends that
the trial court failed to consider mitigating circumstances, particularly
statements by the victim and her mother that they did not wish to see him sent
to prison. The trial court acknowledged
on the record that it was taking those statements into consideration. In its discretion, the trial court can
reasonably give little weight to the request for leniency from the victim,
Johnson's daughter, and his ex-wife.
While the wishes of the victim are a relevant factor to consider, the
weight to be given each factor is within the trial court's discretion. Ocanas v. State, 70 Wis.2d
179, 185, 233 N.W.2d 457, 461 (1975).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.