PUBLISHED OPINION
Case No.: 95-3458-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RAMIAH A. WHITESIDE,
Defendant-Appellant.
Submitted on Briefs: October 1, 1996
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: October 29, 1996
Opinion Filed: October 29, 1996
Source of APPEAL Appeal
from a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: DAVID A. HANSHER
so indicate)
JUDGES: Wedemeyer,
P.J., Fine and Curley, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the defendant-appellant the cause was submitted on the briefs of Ellen Henak,
assistant state public defender.
Respondent
ATTORNEYSFor
the plaintiff-respondent the cause was submitted on the briefs of James E.
Doyle, attorney general, and Marguerite M. Moeller, assistant
attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED October 29, 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. 95-3458-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RAMIAH A. WHITESIDE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DAVID A. HANSHER, Judge. Affirmed.
Before Wedemeyer,
P.J., Fine and Curley, JJ.
CURLEY,
J. Ramiah A. Whiteside appeals from a judgment of conviction and an
order denying postconviction relief.
Following a collision that killed four people during a high-speed police
chase of a stolen vehicle, Whiteside, the driver, pleaded no contest to four
counts of second-degree reckless homicide; one count of second-degree reckless
injury; and one count of operating a motor vehicle without the owner's
consent. Whiteside now contends the
judgment of conviction is improper because the trial court placed its
recommendation that he not be granted parole in the judgment of
conviction. He also seeks vacation of
his sentence alleging the trial court misunderstood the difference between
first- and second-degree reckless homicide resulting in an inappropriate
sentence. Because we determine there is
no prohibition against the trial court's parole recommendation being included
in the judgment of conviction, and because the trial court properly exercised
its discretion at sentencing, we affirm.
I. Background.
On the evening of April
24, 1995, Whiteside fled from the police in a stolen car. During this high-speed chase he eluded the
police by driving down city streets, over lawns, and through a chain link
fence. Eventually the pursuit ended in
a collision at the intersection of West Silver Spring Drive and North 64th
Street. Whiteside claims he slowed down
to approx 60-64 miles per hour when he ran the red light and collided with
another car and a bus stop shelter, killing four people and injuring another.
Whiteside agreed to
plead no contest to all the original charges after being warned that the State
was considering amending the charges to first-degree reckless homicide and in
exchange for the State's promise to recommend a forty-five year sentence, a
sentence two years less than the maximum possible sentence. Later, at the time of sentencing, the
prosecution informed the trial court that the State now believed that
first-degree reckless homicide charges could not be proven and, as a result,
Whiteside was given the opportunity to withdraw his no contest pleas, an offer
he declined.
During the sentencing
hearing, defense counsel advised the court that the presentence investigation
report was inaccurate as the writer left the impression that Whiteside had
accelerated while entering the intersection when he actually slowed to “about
60 to 64” miles per hour (from an earlier speed of 80 miles per hour). The trial court remarked: “What's the difference 60, 65 through a red
light or 80?” The trial court then
proceeded to sentence Whiteside. After
imposing sentence, the trial court offhandedly commented to Whiteside that he
believed the State could have successfully brought first-degree reckless
homicide charges which would have carried a maximum sentence of 167 years. The trial court then remarked, “I would have
had no trouble imposing that sentence.”
Following the imposition of sentence, the trial court directed that the
judgment of conviction include the wording: “IT IS THE RECOMMENDATION OF THE
COURT THAT DEFENDANT NOT BE GRANTED PAROLE BUT TO SERVE THE MAXIMUM
SENTENCE.” The trial court also made an
identical parole recommendation on the record.
Whiteside brought a
postconviction motion seeking resentencing on the ground that “the trial court
abused its discretion in sentencing [him] because [the court's] misapprehension
of the difference between first and second degree reckless homicide caused the
court to view the offense as more grave [sic] than it was under the law.” Additionally, Whiteside, thinking the court's
parole recommendation to be improper, also sought to have the recommendation
removed from the judgment of conviction.
The trial court denied
the motion in a written decision, explaining that it comprehended the
differences between the two statutes.
The trial court further noted that its comments about the State possibly
being able to prove first-degree reckless homicide were merely a “footnote”
following the imposition of sentence.
As stated in the trial court's written decision, “Dropping one's speed
during a chase from 80 mph to 60 mph is not a significant `mitigating'
factor in light of the overall picture presented in this case.” With regard to the parole recommendation
being placed on the judgment, the trial court noted that its recommendation
that Whiteside not be granted parole “is no more than a recommendation; it does
not constitute a condition of his sentence....
It does not constitute a `claim of continuing control' over the
defendant after sentence was imposed.”
(Citation omitted.)
II. Analysis.
Interpretation of
statutes is an issue that this court reviews de novo. See State v. Michels,
141 Wis.2d 81, 87, 414 N.W.2d 311, 313 (Ct. App. 1987). The mandate for a written judgment of
conviction and the required contents of this document are found in
§ 972.13, Stats.[1] Whiteside argues that lacking any specific
statutory authority to place the trial court's position on parole on the
judgment of conviction renders the judgment of conviction improper and requires
remand to the trial court for the entry of a corrected judgment of conviction.
We disagree with
Whiteside's analysis. Further, we note
that Whiteside has cited no cases to support his interpretation. The history of § 972.13, Stats., reflects that its purpose was
to correct a document deficiency in criminal cases by memorializing the
sentencing and creating a uniform sentencing document for use around the
state. As our supreme court stated in State
v. Pham, 137 Wis.2d 31, 403 N.W.2d 35 (1987): “[S]uch a requirement [of a formal record of conviction] was
intended only to impose a uniform rule that all criminal actions resulting in a
conviction must conclude with a written judgment of conviction which sets forth
the plea, the verdict or finding, the adjudication and sentence.” Id. at 36, 403 N.W.2d at
37. Therefore, the statute's obvious
purpose was to enhance communication between the trial court and the prison
authorities, not to hinder or restrict communication between them. Further, every sentencing transcript is
prepared and sent to the receiving correctional institution. These sentencing transcripts contain any
parole recommendation the trial court chooses to make on the record during
sentencing. Thus, a trial court's
parole recommendation will ultimately be found in an inmate's prison file in
transcript form. Accordingly, there is
no harm in duplicating this parole recommendation in the judgment of conviction
as well.
Next, Whiteside, while
conceding that the sentencing court has statutory authority to make a
recommendation to the parole board, argues the trial court may do so only as
prescribed by statute. Section
304.06(1)(c), Stats., provides
for notification to the trial court of an imminent parole decision.[2] Section 304.06(1)(e), Stats., allows a notified court to
provide a written statement that the parole board shall consider in its
determination.[3] Thus, when a trial court receives notice it
may—but is not required to—submit a written parole recommendation. Upon timely receipt, the parole board is
obligated to consider it.
Under Whiteside's
interpretation, the trial court is not permitted to convey the sentencing
court's opinion on parole until the prisoner is eligible and applies for
parole. The practical effect of
Whiteside's argument involves the timing of the court's recommendation. Given the fact a prisoner must serve some
portion of a sentence before being eligible for parole, a significant time
lapse is likely to occur between sentencing and the sending of the notice of
parole to the sentencing court. There
is little to be gained by restricting the court's parole recommendation to the
time frame advocated by Whiteside.
Further, because the defendant will be incarcerated and have little
contact with the sentencing court, it is doubtful the court will obtain any
additional information about a defendant that would impact on a parole
consideration between the time of sentencing and the receipt of a notice of
parole.
Additionally, forbidding
that an advance parole recommendation may be contained in the judgment of
conviction and requiring the court to wait until the time of parole eligibility
will result in the court's having to trust its recollection of events and
people after the passage of months, and perhaps, years. On the other hand, permitting the court to
make a recommendation on parole contemporaneously with the sentencing and
placing it in the judgment of conviction will ensure that accurate information
is used. The defendant is equally
well-served when the correct information is used in a parole
recommendation. For the stated reasons,
we find the parole recommendation placed in the judgment of conviction to be
proper. Whiteside's argument is contrary
to common sense and we reject it.
Whiteside also seeks to
have his sentence vacated on an erroneous exercise of discretion grounds. Despite the trial court's assurances in the
postconviction decision that the court was fully aware of the differences
between first- and second-degree reckless homicide, the defendant maintains his
sentence was based on an error of law.
Whiteside argues that
the crucial difference between first- and second-degree reckless homicide is
the amount of regard the defendant has for others while committing the
crime. Twice before sentencing
Whiteside, the trial court indicated it was unimpressed with the fact that he
slowed his vehicle down to sixty miles per hour when entering the
intersection. Thus, according to
Whiteside, the trial court “rejected the importance of any evidence that
Whiteside showed some regard for others” when sentencing the defendant to the
maximum term. He argues that because
maximum sentences “[are] to be reserved for a more aggravated breach of the
statutes,” see McCleary v. State, 49 Wis.2d 263, 275, 182
N.W.2d 512, 519 (1971), the trial court must not have fully understood the law
concerning first- and second-degree reckless homicide. He contends this misunderstanding “cause[d]
the court to view his offense as more grave [sic] than it was under the
law.” Stated differently, Whiteside
postulates that the trial court should have taken into consideration at
sentencing the fact he reduced his speed, and if the court had, he would not
have received a maximum term.
Our standard of review
of a sentencing decision is whether or not the trial court erroneously
exercised its discretion. See, e.g.,
State v. Harris, 119 Wis.2d 612, 622, 350 N.W.2d 633, 638
(1984). Such “[q]uestions will be
treated in light of strong public policy against interference with the
sentencing discretion of the trial court and sentences are afforded the
presumption that the trial court acted reasonably.” Id.
A review of Whiteside's
sentencing transcript reflects that the trial court considered the appropriate
factors. See id.
at 623‑24, 350 N.W.2d at 639 (discussing sentencing factors trial court
should use) (citations omitted). With
regard to the nature of the offense, the trial court stated: “[I]f you're going to drive an automobile
and try to escape the police at speeds anywhere from 60 to 85 miles per hour
and you go through the intersection at, and I'll give [you] the benefit of
the doubt, let's say 60 to 65 mph, but through a red light, it's the
natural consequences of your act that someone's going to get killed.” This statement confirms that the court not
only considered Whiteside's argument that he slowed down when going through the
intersection, but also adopted it in sentencing him. The trial court also commented on the character of the defendant,
his prior record (including the fact there was a warrant out for his arrest the
night of the accident), his acceptance of responsibility, his rehabilitative
needs, and the needs of the community. See
id.
With regard to his prior
record, the trial court stated that Whiteside's “entire record shows that he
was on the way to be a career criminal as far as this court's concerned.” The trial court also took into consideration
the statements of the victims' families “who believe 45 years as recommended by
the State is inadequate.” Finally, the
trial court stated: “I have to consider
the rights of the public and I think unless a long prison term is imposed, it
would unduly diminish the serious nature of this offense, four lives taken in a
matter of seconds by the actions of this defendant and, again, it was not an
accident.”
It is evident from these
excerpts of the trial court's sentencing determination that it considered the
appropriate and relevant factors in imposing the maximum sentence. What is also apparent is that Whiteside
refuses to accept the fact that the trial court could consider the evidence
that he decelerated the car but still not give him the sentence he believes
such actions warrant. The trial court
articulated a variety of reasons why a lengthy sentence was appropriate. This was a serious and tragic crime; four
people were killed. Accordingly, we
have no hesitancy in concluding that the sentence imposed was an entirely proper
exercise of judicial discretion. For
the reasons stated, we reject Whiteside's arguments and affirm.
By the Court.—Judgment
and order affirmed.
[1] Section 972.13, Stats., provides:
Judgment. (1) A judgment of conviction shall
be entered upon a verdict of guilty by the jury, a finding of guilty by the
court in cases where a jury is waived, or a plea of guilty or no contest.
(2)
Except in cases where ch. 975 is applicable, upon a judgment of conviction the
court shall proceed under ch. 973. The
court may adjourn the case from time to time for the purpose of pronouncing
sentence.
(3) A
judgment of conviction shall set forth the plea, the verdict or finding, the
adjudication and sentence, and a finding as to the specific number of days for
which sentence credit is to be granted under s. 973.155. If the defendant is acquitted, judgment shall
be entered accordingly.
(4) Judgments
shall be in writing and signed by the judge or clerk.
(5) A
copy of the judgment shall constitute authority for the sheriff to execute the
sentence.
(6) The
following forms may be used for judgments:
STATE OF WISCONSIN
.... County
In.... Court
The State of Wisconsin
vs.
....(Name of defendant)
UPON ALL THE FILES, RECORDS AND
PROCEEDINGS,
IT IS ADJUDGED That the defendant
has been convicted upon the defendant's plea of guilty (not guilty and a
verdict of guilty) (not guilty and a finding of guilty) (no contest) on
the.... day of...., 19.., of the crime
of.... in violation of s.....; and the
court having asked the defendant whether the defendant has anything to state
why sentence should not be pronounced, and no sufficient grounds to the contrary
being shown or appearing to the court.
*IT IS ADJUDGED That the
defendant is guilty as convicted.
*IT IS ADJUDGED That the
defendant is hereby committed to the Wisconsin state prisons (county jail
of.... county) for an indeterminate
term of not more than.....
*IT IS ADJUDGED That the
defendant is placed in the intensive sanctions program subject to the
limitations of section 973.032 (3) of the Wisconsin Statutes and the following
conditions:....
*IT IS ADJUDGED That the
defendant is hereby committed to detention in (the defendant's place of
residence or place designated by judge) for a term of not more than....
*IT IS ADJUDGED That the
defendant is ordered to pay a fine of $....
(and the costs of this action).
*IT IS ADJUDGED That the
defendant pay restitution to....
*IT IS ADJUDGED That the
defendant is restricted in his or her use of computers as follows:....
*The.... at....
is designated as the Reception Center to which the defendant shall be
delivered by the sheriff.
*IT IS ORDERED That the clerk
deliver a duplicate original of this judgment to the sheriff who shall
forthwith execute the same and deliver it to the warden.
Dated this.... day of...., 19...
BY THE COURT....
Date of Offense....,
District Attorney....,
Defense Attorney....
*Strike inapplicable paragraphs.
STATE OF WISCONSIN
.... County
In.... Court
The State of Wisconsin
vs.
....(Name of defendant)
On the.... day of...., 19.., the district attorney
appeared for the state and the defendant appeared in person and by.... the defendant's attorney.
UPON ALL THE FILES, RECORDS AND
PROCEEDINGS
IT IS ADJUDGED That the defendant
has been found not guilty by the verdict of the jury (by the court) and is
therefore ordered discharged forthwith.
Dated this.... day of...., 19...
BY THE COURT....
(7) The department shall prescribe and furnish forms to the clerk of each county for use as judgments in cases where a defendant is placed on probation or committed to the custody of the department pursuant to chs. 967 to 979.
[2] Section 304.06(1)(c),
Stats., provides:
(c) If an
inmate applies for parole under this subsection, the parole commission shall
notify the following, if they can be found, in accordance with par. (d):
1. The
office of the court that participated in the trial or that accepted the
inmate's plea of guilty or no contest, whichever is applicable.
2. The
office of the district attorney that participated in the trial of the inmate or
that prepared for proceedings under s. 971.08 regarding the inmate's plea
of guilty or no contest, whichever is applicable.
3. The victim of the crime committed by the inmate or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian upon submission of a card under par. (f) requesting notification.
[3] Section 304.06(1)(e),
Stats., provides:
(e) The parole commission shall permit any office or person under par. (c)1. to 3. to provide written statements. The parole commission shall give consideration to any written statements provided by any such office or person and received on or before the date specified in the notice. This paragraph does not limit the authority of the parole commission to consider other statements or information that it receives in a timely fashion.