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COURT OF APPEALS
DECISION
DATED AND FILED
April 22, 2010
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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State of Wisconsin,
Plaintiff-Respondent,
v.
Ricky James Murray,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Green County: James
R. Beer, Judge. Affirmed.
Before Dykman, P.J., Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Ricky James Murray appeals from
an order denying his motion for modified sentences. He contends that he is entitled to
resentencing on new factors, and because he was sentenced on inaccurate
information. We reject his arguments and
affirm.
¶2 The State charged Murray in
connection with a head-on collision that occurred when Murray lost control of his vehicle while
heavily intoxicated. Three of the occupants of the other vehicle
suffered relatively minor injuries, and one, Cali M., then five, was grievously
injured. Murray entered a guilty plea on two counts of
injury by intoxicated use of a vehicle, as a repeat offender. The court sentenced Murray to seven-and-one-half years of initial
confinement and five years of extended supervision on one count, and withheld
sentence and imposed a ten-year term of consecutive probation on the second
count.
¶3 The victims were injured in a vehicle manufactured by the
Ford Motor Company. Cali
subsequently sued Ford, alleging that a defective seatbelt caused her injuries
in the accident with Murray. After extensive discovery Ford settled Cali’s claim for 1.85
million dollars.
¶4 Murray moved for sentence
modification, alleging that the fact and amount of the settlement were new
factors, and also proved that he was sentenced on inaccurate information
concerning his responsibility for Cali’s
injuries and the financial effect of the accident on Cali’s family. The circuit court denied the motion,
resulting in this appeal.
NEW FACTOR
¶5 A “new factor” is a fact or set of facts highly relevant to
the defendant’s sentence that was unknown to the trial judge at the time of
sentencing, either because it did not then exist or was unknowingly overlooked
by the parties. Rosado v. State, 70 Wis. 2d 280, 288, 234
N.W.2d 69 (1975). To justify
resentencing “[t]here must be some connection between the factor and the
sentencing—something which strikes at the very purpose for the sentence
selected by the trial court.” State
v. Michels, 150 Wis.
2d 94, 99, 441 N.W.2d 278 (Ct. App. 1989).
Whether a set of facts is a “new factor” is a question of law, which we
review de novo. Id. at 97. Whether a new factor warrants a modified sentence
lies within the circuit court’s discretion.
Id.
¶6 Cali’s settlement with Ford
was not a new factor because neither the extent to which a seatbelt defect
contributed to Cali’s injuries, nor the
financial burden they placed on the family, were issues that were highly
relevant to Murray’s
sentences. In sentencing Murray the
court principally focused on: (1) the
seriousness of the offenses, committed when Murray caused a head-on collision
while highly intoxicated; (2) his extensive record of domestic violence
and other alcohol related and/or violent crimes that included four prior OWI or
prohibited alcohol concentration convictions (two motor vehicle and two boat);
(3) the failure of prior jail and probation terms to control or curb his
alcohol abuse and criminal behavior; (4) his failure to acknowledge and
accept responsibility for his alcohol abuse; and (5) the likelihood that
he would continue to drink and reoffend.
The court noted the extent and cost of Cali’s injuries, but these were not the focus
of the court’s comments. The clearly
articulated purpose was to impose a sentence that reflected the seriousness of Murray’s conduct, and protected the public from the
likelihood that Murray
would continue to commit alcohol-related offenses. These were matters that had little to do with
whether a better seat belt might have mitigated Cali’s injuries.
¶7 It may be true that Murray
received a harsher sentence because his conduct resulted in serious injury, but
it does not follow that the sentencing court was, or was required to be,
concerned with the precise details of causation. It is often true when drunk drivers cause
accidents that factors beyond the control of the drunk driver—such as the
relative size of a victim’s vehicle—dictate whether minor or, instead, severe
injuries are the result. The logical
extension of Murray’s
argument is that sentencing courts must, for example, consider whether a
serious injury would have occurred if the victim had been riding in a safer
car. No such inquiry is required. Rather a court may impose a harsher sentence
based on the fact that a defendant caused a collision that resulted in a
serious injury, without an analysis of contributing causal factors.
INACCURATE
SENTENCING INFORMATION
¶8 A defendant claiming that a sentencing court relied on
inaccurate information must show that:
(1) the information was inaccurate; and (2) the sentencing
court actually relied on the inaccurate information. State v. Tiepelman, 2006 WI 66, ¶26,
291 Wis. 2d
179, 717 N.W.2d 1. We review de novo
whether a defendant has been denied the right to be sentenced on accurate
information. Id., ¶9.
¶9 Murray
has not shown that the court sentenced him on inaccurate information. Undeniably, Murray
caused Cali’s
injuries, and those of the other victims, because he caused the accident from
which they resulted. The record does not show, however, that the
court assumed that Murray was the sole cause of Cali’s injury, or relied on that assumption when
sentencing Murray. What is clear, instead, is that whether there
were other causal factors, such as defective seat belts in the vehicle, was
simply not an issue at sentencing.
Consequently, while the information that later became available through
the civil action may have supplemented the information available at sentencing,
it did not render that information inaccurate.
The sentencing court correctly viewed Murray as responsible for the accident and
resulting injuries.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.