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COURT OF APPEALS DECISION DATED AND RELEASED July 23, 1996 |
NOTICE |
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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. 96-0684-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL A. VAN PATTER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: ELSA C. LAMELAS, Judge. Affirmed.
WEDEMEYER, P.J.[1] Michael A. Van Patter appeals from a
judgment of conviction, entered after he pled guilty to operating a motor
vehicle while under the influence of an intoxicant (4th offense), contrary to
§§ 346.63(1)(a) and 346.65(2), Stats. He also appeals from an order denying his
postconviction motion to modify the sentence.
Van Patter claims the trial court erroneously exercised its sentencing
discretion when it denied him Huber privileges for the first sixty days of his
nine-month sentence. Because the trial
court did not erroneously exercise its sentencing discretion, this court
affirms.
I. BACKGROUND
Van Patter pled guilty
to operating a motor vehicle while under the influence of an intoxicant (4th
offense). He was sentenced to nine
months in the House of Correction. The first
two months were ordered served without Huber privileges. His sentence also included a $1,200 fine, a
thirty-six-month suspension of his driver's license and seizure of a
vehicle. After this sentence was
imposed, Van Patter brought a motion to modify the sentence. Van Patter requested that the trial court
restructure his sentence to enable him to be released so that he could
work. The trial court denied the
motion. Van Patter now appeals.
II. DISCUSSION
This court's review of a
sentencing decision is limited to determining whether there was an erroneous
exercise of discretion. State v.
Echols, 175 Wis.2d 653, 681-82, 499 N.W.2d 631, 640-41, cert denied,
114 S. Ct. 246 (1993). There is a
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. This court will conclude that the trial
court did not erroneously exercise its sentencing discretion if the record
demonstrates that the trial court considered the appropriate factors and
articulated a reasonable basis for the sentence imposed. Id.
The primary factors the
trial court must consider in imposing sentence are: (1) the gravity of the
offense; (2) the character and rehabilitative needs of the offender; and
(3) the need for protection of the public. Id. In
reviewing the record, this court concludes that the trial court did not
erroneously exercise its discretion.
The sentencing
transcript documents the trial court's ruling:
In
imposing a sentence, there are three factors that I am supposed to keep in
mind. One is the character of the
defendant, what the defendant brings with him when he walks into the courtroom;
another is the seriousness of the offense; and the last factor is the need to
protect the public. [This case involves
v]ery serious conduct, [and a] great need to protect the public, [the defendant
has a] terrible history when it comes to operating while under the influence of
an intoxicant.
I think that you have proven to me that nothing
other than a serious sentence is going to bring the message home. I'm taking into account the fact that you
have accepted responsibility here, not just by entering a guilty plea, but that
you have done a number of things in order to get treatment; and I am taking
that into account in imposing a sentence in this case.
It is clear from this
excerpt that the trial court considered each of the primary factors. Two factors weighed against Van Patter—the
seriousness of the offense and the need to protect the public. One factor weighed in Van Patter's favor—his
character.
Van Patter's argument is
that the trial court put too much weight on the gravity of the offense factor,
instead of Van Patter's character. The
weight to be given to each of the primary sentencing factors, however, is left
to the trial court's discretion. State v.
Thompson, 172 Wis.2d 257, 264, 493 N.W.2d 729, 732 (Ct. App.
1992). This court sees nothing in the
record to demonstrate that the weight afforded to the gravity of the offense
factor constituted an erroneous exercise of discretion. All three primary factors were considered
and the trial court articulated a reasonable basis for its decision. The trial court determined that a serious
sentence, which included denial of Huber privileges for the first sixty days,
was required in order to “bring the message home.” This indicates that the trial court believed that denying Huber
privileges was necessary in order to punish Van Patter, to protect the public,
and to facilitate Van Patter's rehabilitation.
Given the fact that this conviction is Van Patter's fourth offense for
OMVWI within a period of seven years, this court cannot conclude that the trial
court's discretionary decision to deny Huber privileges was erroneous.
Further, this court
cannot say the trial court erred in denying Van Patter's motion to modify the
sentence. Van Patter failed to present
any new or additional information at the motion hearing to justify an alteration
of the original sentencing decision.
Therefore, the trial court acted properly in denying his motion. See State v. Franklin,
148 Wis.2d 1, 8, 434 N.W.2d 609, 611 (1989) (in order to justify sentence
modification, defendant must show that new factor exists).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.