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COURT OF APPEALS DECISION DATED AND RELEASED June
21, 1995 |
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. 94-2161-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES
BUCKETT,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Waukesha County: MARIANNE E. BECKER, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
PER
CURIAM. James Buckett appeals from a
judgment convicting him of second-degree sexual assault of a person between the
ages of twelve and sixteen years contrary to § 940.225(2)(e), Stats., 1987-88.[1] Buckett only challenges his sentence. Because the sentence was a proper exercise
of the trial court's discretion, we affirm.
In
August 1992, Buckett was charged with one count of first-degree sexual assault
of a victim between the ages of twelve and sixteen years, a Class B
felony. The charge was based upon the
allegations of Buckett's stepdaughter that he had sexual intercourse with her
in May 1987 when she was twelve years old and continued to have sexual contact
with her on a weekly basis for the next year and a half. Buckett subsequently entered a no contest
plea to a reduced charge of second-degree sexual assault and received a
ten-year sentence, the maximum for the crime to which Buckett pled. The trial court declined to reconsider its
sentence.
On
appeal, Buckett argues that the sentence was excessive and that the trial court
largely ignored mitigating factors and otherwise erroneously exercised its
discretion. We decline to address every
argument made by Buckett. "An
appellate court is not a performing bear, required to dance to each and every
tune played on an appeal." State
v. Waste Management of Wis., Inc., 81 Wis.2d 555, 564, 261 N.W.2d 147,
151, cert. denied, 439 U.S. 865 (1978).
We
review whether the trial court misused its sentencing discretion. State v. J.E.B., 161 Wis.2d
655, 661, 469 N.W.2d 192, 195 (Ct. App. 1991), cert. denied, 503 U.S.
940 (1992). We presume that the trial
court acted reasonably, and the defendant must show that the trial court relied
upon an unreasonable or unjustifiable basis for its sentence. Id. The weight given to each of the sentencing factors is within the
sentencing judge's discretion. Id.
at 662, 469 N.W.2d at 195. Public
policy strongly disfavors appellate courts interfering with the sentencing
discretion of the trial court. State
v. Teynor, 141 Wis.2d 187, 219, 414 N.W.2d 76, 88 (Ct. App. 1987). We conclude that the trial court properly exercised
its discretion in sentencing Buckett and that its sentence does not shock
public sentiment. See id.
The
primary factors to be considered by the trial court in imposing a sentence are
the gravity of the offense, the offender's character and the need to protect
the public. State v. Borrell,
167 Wis.2d 749, 773, 482 N.W.2d 883, 892 (1992). More particularly, the trial court can consider the following:
[T]he vicious or aggravated nature of the crime; the
past record of criminal offenses; any history of undesirable behavior patterns;
the defendant's personality, character and social traits; the results of a
presentence investigation; the degree of the defendant's culpability; the
defendant's demeanor at trial; the defendant's age, educational background and
employment record; the defendant's remorse, repentance and cooperativeness; the
defendant's need for rehabilitative control; the right of the public; and the
length of pretrial detention.
Id. at 773-74, 482 N.W.2d at 892.
Our
review of the record reveals that the trial court considered the proper factors
and properly exercised its discretion in weighing them. At the sentencing hearing, the State argued
that Buckett should receive the maximum sentence because the offense was
extremely serious, Buckett took advantage of a child with whom he had a trust
relationship, the sexual assaults were ongoing over a period of time and
Buckett intimidated the victim and harassed members of the victim's
family. The State noted the ongoing
psychological harm to the victim as a result of the assaults. With regard to Buckett's character, the
State advised the court that Buckett was abusive to his stepchildren and that
he failed to accept responsibility for the offense and blamed the victim. The State also advised the court that
Buckett had made inquiries about having one or more of his stepchildren
killed. The State strenuously objected
to the presentence investigation report's recommendation requesting lengthy
probation and a one-year conditional jail term.
The
victim's mother testified regarding the impact of the sexual assaults on her
family. She related that Buckett had
stalked the family and they had to seek restraining orders against him. She described a pattern of abuse by Buckett
and the fear he engendered. The
victim's brother testified that Buckett abused him and separated him
emotionally and physically from other members of the family. He saw Buckett abuse other members of the
family.
The
victim's father and stepmother described the harm to the victim and asked the
court to impose the maximum sentence.
In her remarks to the court, the victim's psychotherapist stated that
the abuse suffered by the child placed her at higher risk for psychological
maladjustment at various stages of her life.
Finally, the victim described for the court the impact of the
sexual abuse and described how Buckett terrorized her family.
Buckett's
counsel made the following points about Buckett to the court: he did not have a prior criminal record; he
was convicted of one offense of second-degree sexual assault; he was aware that
he committed an offense; and he did not believe the victim was responsible for
the sexual assaults. Counsel argued
against the maximum sentence and in favor of treatment.
In
exercising his right of allocution, Buckett apologized to the victim and her
family, stated he did not blame the victim, accepted responsibility "for
everything" and apologized to his family.
In
sentencing Buckett, the trial court referred to the Wisconsin Sentencing Guidelines
Scoresheet (the matrix). The trial
court rejected the matrix's determination that probation would be appropriate
in light of Buckett's lack of criminal history.
The
trial court considered the severity of the crime, Buckett's character and the
need to protect the public. The trial
court found that the sexual assault in this case was particularly despicable
because it was perpetrated by a family member.
The court noted that after Buckett ceased assaulting the victim
sexually, he assaulted her mentally and emotionally. With regard to Buckett's character, the trial court aptly
characterized the competing portraits of Buckett presented at sentencing as
reminiscent of Dr. Jekyll and Mr. Hyde.
The trial court was required to consider the portrayals of Buckett as a
good friend and artist versus the perpetrator of sex crimes and victimizer of
the child and her family.[2] The court discounted letters sent in support
of Buckett because they were inconsistent with the more credible portrait
painted of him by the victim and her family.
The trial court saw a "grave need to protect the public from people
like [Buckett]" who prey on children.
Finally, the court considered Buckett's age, his educational
background and his employment record and questioned the depth of his remorse
and repentance. Based upon the
foregoing, the trial court imposed the maximum sentence of ten years.[3]
Buckett
complains that the trial court did not give sufficient weight to the probation
recommendation made by the author of the presentence investigation report. Trial courts do not blindly accept or adopt
sentencing assessments and recommendations from any particular source. State v. Johnson, 158 Wis.2d
458, 465, 463 N.W.2d 352, 355 (Ct. App. 1990).
Here, the trial court considered the presentence investigation report
but disagreed with the recommended sentence.
It is clear from the sentencing record that the trial court rejected the
probation recommendation because it was inconsistent with its balancing and
weighing of the other sentencing factors.
We
reject Buckett's complaints that he received a lengthy sentence. Reversal due to the length of a sentence is
warranted "only where the sentence 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." Ocanas
v. State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975). Sentences are to be individualized and
"[w]hether a particular factor or characteristic relating to a defendant
will be construed as either a mitigating or aggravating circumstance will depend
upon the particular defendant and the particular case." State v. Thompson, 172 Wis.2d
257, 265, 493 N.W.2d 729, 733 (Ct. App. 1992).
Here, the trial court individualized its sentence after considering the
facts of this case and the sentencing factors.
Buckett
complains that the trial court decided to impose the maximum sentence before
the sentencing hearing. As evidence of
this predisposition, Buckett relies upon the trial court's statement that prior
to the hearing it reviewed letters and notes submitted by the victim's
family and friends. Reviewing such
material prior to sentencing was appropriate preparation for the sentencing
hearing and does not, in and of itself, permit an inference that the trial
court predecided the sentence.
Finally,
Buckett argues that there was no reason for the trial court to conclude that he
could not be rehabilitated.
Rehabilitation is just one of the sentencing factors. As we have stated, the trial court may, in
its discretion, assign more weight to other factors.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] The assaults
allegedly occurred in May 1987. Section
940.225(2)(e), Stats., was
repealed as of July 1, 1989, by 1987 Wis. Act 332, § 30.