|
COURT OF APPEALS DECISION DATED AND FILED September 11, 2012 Diane M. Fremgen Clerk of Court of Appeals |
|
NOTICE |
|
|
|
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. |
|
|
Appeal No. |
Cir. Ct. No. 2010CF6135 |
|||
|
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
|
DISTRICT I |
|||
|
|
|
|||
|
|
|
|||
|
State of Wisconsin, Plaintiff-Respondent, v. Tony Charles Madison, Defendant-Appellant. |
||||
|
|
|
|||
APPEAL from a judgment and an order of the circuit court for Milwaukee County: glenn h. yamahiro, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Tony Charles Madison appeals a judgment convicting him of conspiracy to commit armed robbery with threat of force and an order denying his motion for postconviction relief. Madison argues that the circuit court misused its sentencing discretion. We affirm.
¶2 Madison was recruited by Lonell Mays to observe a bank that Mays was planning to rob. Madison agreed to relay information to Mays that would assist Mays in planning the robbery. Madison admitted to the police that he went to the bank on December 14, 2010, in furtherance of the plan. Madison pled guilty to conspiracy to commit armed robbery and was sentenced to five years of imprisonment, with two years of initial confinement and three years of extended supervision.
¶3 Our
standard of review is well settled. Sentencing
lies within the circuit court’s discretion, and appellate review is limited to
considering whether discretion was erroneously exercised. State v. Gallion, 2004 WI 42, ¶17,
270
¶4 Madison
first argues that the circuit court misused its sentencing discretion because
it placed too much weight on his prior record and did not consider mitigating
factors that supported a lighter sentence.
We reject this argument. Before
it imposed sentence, the circuit court heard extensive argument from Madison’s
attorney about the mitigating circumstances in this case, including the fact
that Madison did not organize or plan the crime, he did not have a weapon and
he was recruited into the scheme when it was already well underway. Madison’s attorney also pointed out that
Madison had given a full confession to police and taken responsibility for his
actions. In framing its sentence, the
circuit court considered the facts of this case in light of factors appropriate
to a sentencing decision, including the gravity of the offense, the need to
protect the public and Madison’s character.
While the circuit court placed particular emphasis on the fact that
Madison had two prior felony convictions and was on supervision when he
committed this crime, the circuit court also considered the mitigating factors
discussed by Madison’s attorney and acknowledged that Madison had generally
been doing well on supervision prior to this offense and was taking care of his
family. After weighing all
considerations, however, the circuit court decided that prison time was
necessary due to Madison’s prior record and the fact that he was on supervision
when he committed this crime. The
circuit court made a reasonable decision based on the facts of this case and
the applicable law, and explained its decision on the record. The circuit court properly exercised its
sentencing discretion.
¶5 Madison
next argues that his equal protection rights were violated because he was
sentenced to a longer sentence than Mays, who was more culpable. Mays was sentenced to six years of
imprisonment, with four years of initial confinement and two years of extended
supervision, imposed and stayed in favor of four years of probation with twelve
months in jail as a condition.
¶6 “Equality
of treatment under the Fourteenth amendment in respect to sentencing … requires
substantially the same sentence for persons having substantially the same case
histories.” Jung v. State,
32 Wis. 2d 541, 553, 145 N.W.2d 684, 690 (1966). Madison’s argument fails because he and Mays do
not have substantially the same case histories.
It is undisputed that Madison is less culpable than Mays with regard to
this crime because Mays planned the crime.
Unlike Mays, however, Madison already had two felony convictions and was
on extended supervision when he decided to again break the law. Mays was given a lighter sentence because he
did not have a criminal history. In the
event Mays’ probation is revoked, Mays will serve a more lengthy prison term in
keeping with his greater culpability. Madison’s
sentence did not violate equal protection because the disparate sentences were
based on the particular circumstances of each defendant.
¶7 Madison next argues that the circuit court did not explain why it denied him eligibility for the Early Release and Challenge Incarceration Programs and it did not explain the reasons for the length of either aspect of his bifurcated sentence. The circuit court specifically stated at sentencing that it would unduly depreciate the seriousness of Madison’s conduct if he were permitted to enter an early release program because he committed this offense while on supervision. Moreover, the circuit court did not have an obligation to state exactly why the objectives it considered translated into a specific number of years of imprisonment. See State v. Fisher, 2005 WI App 175, ¶¶21–22, 285 Wis. 2d 433, 447–448, 702 N.W.2d 56, 63. We reject these arguments.
¶8 Madison next contends that the circuit court’s sentence was
unduly harsh and excessive. “A sentence
is unduly harsh when it is ‘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.’”
State v. Prineas, 2009 WI
App 28, ¶29, 316
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.