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COURT OF APPEALS DECISION DATED AND RELEASED December 17, 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. 96-2196-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Hiram Johnson,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: THOMAS R. COOPER, Judge. Affirmed.
WEDEMEYER, P.J.[1] Hiram Johnson appeals from a judgment entered
after he pled guilty to operating a motor vehicle while intoxicated, third
offense, contrary to §§ 346.63(1)(a) and 346.65(2), Stats. He also
appeals from a postconviction order denying his request for sentence
modification. He claims that the trial
court erroneously exercised its sentencing discretion. Because the trial court did not erroneously
exercise its sentencing discretion, this court affirms.
I. BACKGROUND
Johnson entered a guilty
plea to OWI, third offense. The trial
court sentenced him to nine months in the House of Correction, along with a
$1,000 fine, plus costs and a thirty-six-month revocation of driving
privileges. Judgment was entered. Johnson objected to the nine-month jail
term. He filed a motion seeking
sentence modification, which was denied.
He now appeals.
II. DISCUSSION
Our review is limited to
a two-step inquiry. This court must
first determine whether the trial court properly exercised its discretion in
imposing the sentence. If so, this court
then will consider whether that discretion was misused by imposing an excessive
sentence. State v. Glotz,
122 Wis.2d 519, 524, 362 N.W.2d 179, 182 (Ct. App. 1984).
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. State v. Echols, 175 Wis.2d 653, 682, 499 N.W.2d
631, 640, cert. denied, 510 U.S. 889 (1993).
Johnson claims that the
trial court erroneously exercised its discretion when it imposed the nine-month
jail term. He claims that the trial
court imposed this sentence without considering “extraordinary circumstances”
present in his case. These
circumstances are that he has medical needs and cares for his elderly
parents. Because of these factors, he
claims the trial court should have imposed a lesser sentence. This court is not persuaded by Johnson's
argument.
The record demonstrates
that Johnson presented these factors to the trial court. Although the trial court did not
specifically discuss these factors during the sentencing, it is clear that the
trial court considered them because it granted Johnson work-release privileges
to allow him to tend to his medical needs and to care for his parents. The record also indicates that the trial
court addressed the three primary factors in imposing sentence. Accordingly, this court cannot conclude that
the trial court erroneously exercised its sentencing discretion.
Moreover, this court
cannot conclude that a nine-month sentence for a third OWI offense is unduly
harsh because it is 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.” Ocanas v.
State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975). Johnson faced a possible maximum of one year
in jail. The trial court imposed only
nine months. Given the threat a
third-time drunk driver poses to the public, a nine- month sentence is not
excessive.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.