COURT OF APPEALS DECISION DATED AND RELEASED October 31, 1995 |
NOTICE |
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. 95-1377-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN W. SCHMIDT,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Affirmed.
FINE, J. Steven Schmidt appeals from a judgment
convicting him of causing injury by the intoxicated use of a motor vehicle, see
§§ 346.63(2)(a)(1) and 346.65(3), Stats.,
and from the trial court's order denying his motion for post-conviction
relief. Schmidt pled “no contest” to
the charge. The sole issue on appeal is
whether the trial court misused its discretion in imposing sentence. We affirm.
Schmidt was under the
influence of an intoxicant when he struck and injured a pedestrian. The trial court sentenced him to a six-month
term of incarceration, with work-release privileges under § 303.08, Stats.
Sentencing is within the
trial court's discretion and will only be overturned if there is an abuse of
discretion or if discretion is not exercised.
Ocanas v. State, 70 Wis.2d 179, 183–184, 233 N.W.2d 457,
460 (1975).
The
exercise of discretion contemplates a process or reasoning based on facts that
are of record or that are reasonably derived by inference from the record, and
a conclusion based on a logical rationale founded upon proper legal standards.
Id., 70
Wis.2d at 185, 233 N.W.2d at 461. Thus,
a court may impose a sentence within the limits set by statute, ibid.,
if it considers appropriate factors.
The
primary factors to be considered in imposing sentence are the gravity of the
offense, the character of the offender, and the need for protection of the
public.
Elias
v. State, 93 Wis.2d 278, 284, 286 N.W.2d 559, 561 (1980). If the trial court exercises its discretion
based on the appropriate factors, a particular sentence will not be reversed
unless it 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, 70 Wis.2d at 185, 233
N.W.2d at 461. “The weight to be given
each factor is within the discretion of the trial court.” State v. Wickstrom, 118 Wis.2d
339, 355, 348 N.W.2d 183, 192 (Ct. App. 1984).
The trial court here
noted that the crime was serious and that Schmidt's blood-alcohol content
tested at .24. The trial court also
recognized in mitigation, however, that earlier in the day, when Schmidt had
gone to Summerfest to drink, he had taken the bus rather than drive, and that
Schmidt “has already taken steps to address any alcohol problem” by having an
assessment at the Milwaukee Council on Alcoholism and following up with
programs administered by the Family Social and Psychotherapy Services. Nevertheless, the trial court opined that it
was necessary to impose a substantial period of incarceration to both protect
society and to punish Schmidt, even though Schmidt, too, had suffered as a
result of his crime. The trial court
considered the appropriate factors, and properly exercised its discretion.
Several months after
sentencing, Schmidt brought a motion to modify his sentence. The motion alleged that although the trial
court considered a report by a counselor employed in a drunk-driving program
administered by Wisconsin Correctional Services, the trial court neither read a
more “up-to-date” report nor heard testimony from the counselor. In denying Schmidt's motion, the trial court
noted that it had considered evidence of Schmidt's efforts to address his
alcohol problem and that it gave to Schmidt “significant credit” for those
efforts. The trial court pointed out
that if it were not for the positive aspects of Schmidt's life and his efforts
at rehabilitation, it would have “given him a longer jail time.” The trial court properly held that there was
an insufficient basis to modify Schmidt's sentence. See State v. Ambrose, 181 Wis.2d 234,
239–240, 510 N.W.2d 758, 760–761 (Ct. App. 1993) (trial court may not modify
sentence upon mere reflection—there must be “new factors” not known to trial
court at time sentence imposed but highly relevant to sentence).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.