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COURT OF APPEALS DECISION DATED AND RELEASED July 9, 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. 95-1705-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRADFORD F. LESCHER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JACQUELINE D. SCHELLINGER and KITTY K.
BRENNAN, Judges. Affirmed.
WEDEMEYER, P.J.[1] Bradford F. Lescher appeals from a
judgment entered after a jury convicted him of one count of bail jumping,
contrary to § 946.49(1)(a), Stats. He also appeals from the order denying his
postconviction motion seeking sentence modification. Lescher claims the trial court erred in imposing a sixty-day
electronic surveillance sentence.
Because the trial court did not erroneously exercise its sentencing
discretion, this court affirms.
I. BACKGROUND
On January 30, 1993,
Lescher was out on bond for charges of the misdemeanor offense of intimidation
of a witness, contrary to § 940.42, Stats. One of the conditions of his release was a
no contact order, which prohibited him from having any contact with Michael
Salick. In defiance of this order,
Lescher made a derogatory remark to Salick about Salick's weight gain. As a result, Lescher was charged with one
count of bail jumping.
The intimidation of a
witness charge and the bail jumping charge were consolidated for trial. A jury acquitted Lescher of the intimidation
of a witness charge, but convicted him of bail jumping. He was sentenced to sixty days of electronic
surveillance. He filed a postconviction
motion seeking sentence modification, which was denied. He now appeals.
II. DISCUSSION
Lescher claims the trial
court erroneously exercised its sentencing discretion in three ways: (1) that it relied on discussions with
the jurors which took place after the verdict; (2) that the sentence
imposed denied Lescher his First Amendment rights; and (3) that the
sentence imposed was excessive and unduly harsh. This court addresses each claim seriatim.
In addressing each
claim, this court notes that it is bound by the following standard of
review. Sentencing is left to the
discretion of the trial court, and appellate review 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 (1993). When sentencing, the trial court must consider the following
three factors: (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. Sarabia, 118 Wis.2d 655, 673, 348 N.W.2d
527, 537 (1984). The significance of
each factor, however, in the total sentencing process lies solely within the
sentencing court's discretion as demonstrated by the record. State v. Patino, 177
Wis.2d 348, 385, 502 N.W.2d 601, 616 (Ct. App. 1993). Moreover, this court will not find that the sentence imposed by
the trial court was excessive unless “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.” State v.
Dietzen, 164 Wis.2d 205, 213, 474 N.W.2d 753, 756 (Ct. App. 1991).
When considering the
three primary factors, the sentencing court may also take into account: the
vicious and 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. State v.
Borrell, 167 Wis.2d 749, 773-74, 482 N.W.2d 883, 891 (1992).
A. Juror
Comments.
Lescher first complains
that the trial court used information from conversations with the jurors in
deciding what sentence should be imposed.
This court is not persuaded by Lescher's claim. Although the sentencing transcript does
demonstrate that the trial court made several references to conversations with
the jurors, this court concludes that the sentencing transcript does not
support Lescher's claim.
The trial court's
initial reference to juror conversations was simply an acknowledgement that it
was familiar with the case. The next
reference, although more extensive, focused only upon the jurors' comments
regarding the evidence relating to the intimidation of witness charge, on which
Lescher was acquitted. The trial
court's comments observed that the jurors were not persuaded by the evidence
supporting the intimidation of witness charge, which led to the acquittal on
that charge. Accordingly, even if the
juror conversations revealed the nature of the jury's deliberations contrary to
§ 906.06(2), Stats., and
even if the trial court used this information in formulating the sentence, the
error was harmless, State v.
Dyess, 124 Wis.2d 525, 541-42, 370 N.W.2d 222, 231 (1985), because
Lescher was not sentenced on the intimidation of a witness charge. He was sentenced only on the bail jumping
conviction.
Further, it is within
the trial court's discretion to allow jurors to express their feelings
regarding sentencing. State v.
Marhal, 172 Wis.2d 491, 501 n.7, 493 N.W.2d 758, 763 n.7 (Ct. App.
1992). This court again cautions,
however, that there are serious concerns with allowing jurors to express their
feelings regarding sentencing. See
id. Based on the
foregoing, this court cannot conclude that the trial court's references to
juror comments constituted an erroneous exercise of sentencing discretion.[2]
B. First
Amendment.
Lescher next claims that
the sentence imposed violated his First Amendment rights because the sentence
would prevent him from protesting at abortion clinics. This court is not persuaded.
In imposing the
sentence, the trial court ruled:
[The
sentence is] going to prevent you from going to these protests for a period of
time. I think you need the time to sit
down and think about how you may protest in a way that was envisioned by the
constitution and the laws that define First Amendment rights. I think you really need some time to look at
your behavior in the context of exercising your freedom.
In
addition, the sentencing transcript demonstrates that the limitation on
Lescher's First Amendment rights was imposed because of an identifiable link
between the protected right and the criminal conduct. State v. J.E.B., 161 Wis.2d 655, 469 N.W.2d
192 (Ct. App. 1991). Accordingly, the
trial court was within its discretion in limiting Lescher's First Amendment
rights. The identifiable link was the
fact that Lescher's criminal conduct occurred while he was protesting at an
abortion clinic. If Lescher cannot
refrain from committing criminal conduct at such protests, then the trial court
is within its discretion to limit his First Amendment rights.
C. Excessive
Sentence.
Finally, Lescher claims
the sentence imposed was excessive and unduly harsh. He claims that the comment, which was the basis for the bail
jumping charge was brief, that he apologized for making the comment, and that
the comment was non-threatening. As a
result, he claims that a sixty-day electronic surveillance sentence was
excessive. This court does not agree.
This court will not find
that a sentence imposed is unduly harsh unless “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.”
Dietzen, 164 Wis.2d at 213, 474 N.W.2d at 756. The sentence imposed in the instant case
does not meet this standard. Although
this court agrees with Lescher's contention that his criminal conduct was not
as serious as other criminal activity that occurs, it nonetheless was a crime. Lescher violated an order of the court. Such conduct cannot and should not be taken
lightly. In order to preserve the
sanctity of the justice system, citizens must obey orders of the court and
those who do not abide by the orders must be punished.
Given this
consideration, this court cannot say that a sixty-day electronic surveillance
sentence is so excessive and disproportionate to Lescher's violation of the
court's order that it shocks public sentiment.
Accordingly, this court concludes that the trial court's sentence was
not excessive or unduly harsh.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.