District IV
March 27, 2014
To:
Hon. Brian A. Pfitzinger
Circuit Court Judge
210 W. Center St.
Juneau, WI 53039
Lynn M. Hron
Clerk of Circuit Court
Dodge Co. Justice Facility
210 West Center Street
Juneau, WI 53039
Suzanne L. Hagopian
Assistant State Public Defender
P.O. Box 7862
Madison, WI 53707
Kurt F. Klomberg
District Attorney
Dodge County
210 W. Center Street
Juneau, WI 53039
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Brandin L. McConochie 488723
Green Bay Corr. Inst.
P.O. Box 19033
Green Bay, WI 54307-9033
You are hereby notified that the Court has entered the following opinion and order:
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2012AP2291-CRNM |
State of Wisconsin v. Brandin L. McConochie (L.C. #2005CF347) |
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Before Blanchard, P.J., Sherman and Kloppenburg, JJ.
Brandin McConochie appeals a
judgment sentencing him to prison following the revocation of his probation on one
count of felony bail jumping, and an order denying his postconviction motion. Attorney Andrew Hinkel has filed a no-merit
report, and was subsequently replaced by Attorney Suzanne Hagopian, who has not
withdrawn the report. See Wis.
Stat. Rule 809.32 (2011-12);[1]
Anders v.
We first note that an appeal from a sentence following revocation does not bring an underlying conviction before this court. See State v. Drake, 184 Wis. 2d 396, 399, 515 N.W.2d 923 (Ct. App. 1994). Nor can an appellant challenge the validity of any probation revocation decision in this proceeding. See State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 384, 260 N.W.2d 727 (1978) (probation revocation is independent from the underlying criminal action); see also State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 550, 185 N.W.2d 306 (1971) (judicial review of probation revocation is by way of certiorari to the court of conviction). The only potential issue for appeal is the circuit court’s imposition of sentence following revocation.
Our review of a sentence determination begins “with the presumption that the trial court acted reasonably, and the defendant must show some unreasonable or unjustifiable basis in the record for the sentence complained of.” State v. Krueger, 119 Wis. 2d 327, 336, 351 N.W.2d 738 (Ct. App. 1984). Here, the record shows that McConochie was afforded the opportunity to address the circuit court prior to sentencing, both through counsel and in person. The circuit court considered the standard sentencing factors and explained their application to this case. See generally State v. Gallion, 2004 WI 42, ¶¶39-46, 270 Wis. 2d 535, 678 N.W.2d 197. Regarding the severity of the offense, the court agreed with the prosecutor that it was extremely serious to have violated the conditions of a sexual assault charge by having additional sexual relations with the same fourteen-year-old victim. With respect to the defendant’s character and rehabilitative needs, the court acknowledged that McConochie was still young, demonstrated an appropriate demeanor in court, and had already received a substantial sentence for the conduct underlying the revocation, which could go a fair way to addressing his rehabilitative needs. Therefore, the court concluded that a modest prison term would be sufficient punishment for the present offense. The court then sentenced McConochie to one year of initial confinement and two years of extended supervision, to be served consecutively to any previously imposed sentences. The court found that McConochie was not eligible for a risk reduction sentence or the Challenge Incarceration and Earned Release Programs.
The components of the bifurcated sentence were within the applicable penalty ranges, and constituted 50% of the maximum exposure McConochie faced. See Wis. Stat. §§ 946.49(1)(b) (classifying bail jumping, where the underlying charged offense is a felony, as a Class H felony); 939.50(3)(h) (providing maximum imprisonment term of six years for Class H felonies). There is a presumption that a sentence “‘well within the limits of the maximum sentence’” is not unduly harsh, and the sentence imposed here was not “‘so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.’” See State v. Grindemann, 2002 WI App 106, ¶¶31-32, 255 Wis. 2d 632, 648 N.W.2d 507 (quoted sources omitted).
McConochie filed a postconviction motion seeking to vacate his sentence on the grounds of laches or that he had been denied his right to a speedy sentencing by a four-year delay between the time of his revocation and his sentencing. In the alternative, he requested nine days of sentence credit. The circuit court noted that it was unable to determine the cause of the delay, other than a scheduled sentencing hearing had been taken off the calendar and then apparently forgotten by both parties and the court. However, the court concluded that McConochie was not prejudiced by the delay, because the time he had already spent in custody by the time of sentencing was a “substantial factor that this Court considered in giving him a sentence that this Court felt was on the very low end for a crime that I felt the gravity and nature was very serious.” The court’s analysis of the delayed sentencing represents a reasonable exercise of discretion, and the court granted the requested sentence credit.
Upon our independent review of the record, we have found no other arguable basis for reversing the judgment. See State v. Allen, 2010 WI 89, ¶¶81-82, 328 Wis. 2d 1, 786 N.W.2d 124. We conclude that any further appellate proceedings would be wholly frivolous within the meaning of Anders and Wis. Stat. Rule 809.32.
IT IS ORDERED that the judgment sentencing McConochie after revocation is summarily affirmed. See Wis. Stat. Rule 809.21(1).
IT IS FURTHER ORDERED that Attorney Suzanne Hagopian is relieved of any further representation of McConochie in this matter. See Wis. Stat. Rule 809.32(3).
Diane Fremgen
Clerk of Court of Appeals
[1] All further references in this order to the Wisconsin Statutes are to the 2011-12 version, unless otherwise noted.