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COURT OF APPEALS DECISION DATED AND RELEASED November
2, 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. 95-1253-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KRISTEN
K. GAMER,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Dane County: JACK F. AULIK, Judge. Reversed and cause remanded with
directions.
SUNDBY,
J. Defendant, Kristen K. Gamer, appeals from a judgment
convicting her of attempted possession of cocaine, and an order entered April
17, 1995, denying her motion for modification of sentence. However, she asks only that we[1]
remand this matter to the trial court for re-sentencing. We conclude that the trial court did not
make an adequate record of its sentencing discretion and remand for it to do
so.
The
trial court explained its reasons for the sentence as follows:
Having heard the testimony in this case, it
frankly makes it much easier for the Court to impose sentence ....
... I think there was a wealth of evidence from
which [the jury] could reach that conclusion, especially the less than candid
testimony of two co-defendants in this case ....
... [R]easonable
inferences could be drawn that, again, less than candor was exercised in this
case, and that is one of the elements that this Court is compelled to consider
when imposing sentence.
These
reasons relate to the weight of evidence against Gamer and the lack of
credibility of her co-defendants. The
court did not, however, explain why this lack of credibility should affect
Gamer's sentence; the State does not argue that Gamer induced these witnesses
to testify as they did.
In
her motion for sentence modification, Gamer argued that the trial court failed
to consider factors it was required to consider and improperly considered other
factors. She argues that as a result,
the court's sentence was unduly harsh, an abuse of discretion, and a violation
of her right to due process.
The
State acknowledges that "a trial court is required to state reasons for
sentencing to aid in appellate review and to facilitate a trial court's
rationale of its sentences." See
Ruff v. State, 65 Wis.2d 713, 727-30, 223 N.W.2d 446, 453-55
(1974). It also concedes that the trial
court should focus on the gravity of the offense, the rehabilitative needs of
the defendant, and the protection of the public. See Elias v. State, 93 Wis.2d 278, 284, 286
N.W.2d 559, 561 (1980).
The
State points out that it brought to the court's attention the nature of the
offense, comments as to Gamer's character, and "statements reflective of
the public interest." The State
also commented on Gamer's lack of prior record. The State argues that the trial court "obviously"
incorporated these arguments into its reasoning when it sentenced Gamer. We cannot review the court's private
reasoning.
A
trial court exercises its discretion when it considers the facts of record and
reasons its way to a rational, legally sound conclusion. McCleary v. State, 49 Wis.2d
263, 277, 182 N.W.2d 512, 519 (1971).
[W]here the record shows that the court ... considered
the facts of the case and reasoned its way to a conclusion that is (a) one a
reasonable judge could reach and (b) consistent with applicable law, we will
affirm the decision even if it is not one with which we ourselves would agree.
Burkes v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct. App. 1991)
(footnote omitted).
We
may look for reasons to sustain trial court discretionary decisions. Schneller v. St. Mary's Hosp.,
155 Wis.2d 365, 374, 455 N.W.2d 250, 254 (Ct. App. 1990), aff'd, 162
Wis.2d 296, 470 N.W.2d 873 (1991).
However, the exercise of sentencing discretion is peculiarly the
province of the trial court. It must
weigh the sentencing factors; we cannot exercise the trial court's
discretion. We therefore reverse the
order denying Gamer's motion and remand the cause to the trial court for
re-sentencing. Gamer apparently
believes that she can convince the trial court or this court that her sentence
was too harsh. She may be wrong but she
will be heard; that is the essence of due process.
By
the Court.--Judgment and order
reversed and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.