Ocanas v. State

• Decision Date: 02 October 1975
• Docket Number: No. S,S
• Parties: Julio OCANAS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 43.
• Court: Wisconsin Supreme Court

Page 457

233 N.W.2d 457

70 Wis.2d 179

Julio OCANAS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 43.

Supreme Court of Wisconsin.

Oct. 2, 1975.

Julio Ocanas, the plaintiff in error, hereinafter defendant, was charged with rape contrary to sec. 944.01, Stats. The defendant pled not guilty and waived a jury trial. On October 5, 1973, he was found guilty as charged. On December 6, 1973, he was sentenced to the Wisconsin State Prisons for an indeterminate term of not more than twenty years. On February 5, 1974, the trial court, by order, denied his postconviction motion for sentence modification. The matter is now before this court upon a writ of error to review that order.

Howard B. Eisenberg, State Public Defender, Robert J. Paul, Asst. State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

The defendant presents two issues:

(1) Is the twenty-year sentence excessive and an abuse of discretion?

(2) Is the failure to modify his sentence in view of a three-year sentence given to his brother for the same offense an abuse of discretion and a denial of equal protection of the law?

At the trial the defendant claimed he was not guilty of forceable rape; that the complainant voluntarily consented to the act of sexual intercourse for payment of $50 and that because she was not paid she went to the police with a false claim of rape to 'get even with them.' The trial court completely rejected the story of the defendant as it had a right to do and accepted the testimony of the complainant.

The defendant does not challenge the sufficiency of the evidence in this review. ¹

A re sume of the facts as testified to by the victim is as follows:

The victim, an eighteen-year-old waitress, living with her sister in Kenosha, was walking home on the evening of June 27, 1973. When she was about one-half block from her home she passed a house with two men sitting on the porch. She did not know them. They were the defendant, Julio Ocanas, who was about twenty-three years old, and his younger brother, Paul, who was about eighteen years old. Both were of Mexican descent. The younger brother Paul left the porch, approached the victim and asked if he could walk with her. She replied, 'No.' The defendant then came from the porch, said in a tone she believed to be demanding or threatening, 'You will please come into the house.'

When she entered the house there were four men, not two, and two small children. The defendant, Julio, picked up one of the small children and asked the victim to come upstairs with him. She refused. Paul then went to another room, got two handguns, kept one himself and gave the other to Julio. One of the other men also had a gun that looked like a machine gun. Paul then told her she was going upstairs. The defendant Julio had his gun pointed two and one-half inches from her head at that time. She then went upstairs into a bedroom with all four men and a little child.

Julio told her to take her clothes off. She said, 'No.' Paul, who then had his gun pointed at her head, pointed at the floor and fired the gun and said to her, 'I'm boss man and you do as I say.' She agreed and they took her clothes off. Julio, Paul and the big man fondled her. Julio and Paul still had the guns in their hands. The defendant Julio told her they were going to have some fun in bed. She consented to have sexual intercourse. The big man was left in the room with her. He threatened her, telling her it would be easy to put a pillow between her head nd the gun and nobody would hear anything. He talked obscenely with her but did not have sexual intercourse with her. Paul then came into the room with his gun and had sexual intercourse with her. Paul left and the defendant Julio came in. They talked about his wife and he told her, 'She's buried in the basement and that's where you'll be if you're not careful.' He then had sexual intercourse with her. He had his gun in his hand at all times.

After the act, and while the defendant was dressing, the victim partially dressed, ran to the window, kicked out the screen and dove head first to the ground from this second-story bedroom. She broke an arm in the fall. She had difficulty in getting up and someone grabbed her. She screamed and the person left; she ran down the alley screaming. A man helped her home and she was taken to the hospital.

The defendant argues that the twenty-year sentence, which is two-thirds of the statutory maximum, is excessive. He contends that there are extenuating circumstances and that reasons given by the court for the sentence are inadequate.

This court has stated that it will review sentences to determine whether there has been an abuse of discretion. However, such questions will be treated in light of a strong policy against interference with the discretion of the trial court in passing sentence. State v. Tuttle (1963), 21 Wis.2d 147, 124 N.W.2d 9; Voigt v. State (1973), 61 Wis.2d 17, 211 N.W.2d 445. In reviewing a sentence to determine whether or not discretion has been exercised or whether such discretion has been abused, there is a presumption that the trial court acted reasonably and the complainant is required to show some unreasonable or unjustifiable basis of the record for the sentence complained of. Jung v. State (1966), 32 Wis.2d 541, 145 N.W.2d 684.

The defendant contends that the victim was sophisticated and experienced in sexual matters and she was not as outraged as the facts might seem to indicate. He points to the 'street' language she used in some of her testimony and the fact that she had made a claim of rape against a man in Nevada several months earlier and then refused to go through with the prosecution.

A presentence report indicated the defendant had a prior criminal record consisting of several misdemeanors and two felonies. The felonies were nonsupport and discharging a firearm into a vehicle containing two police officers. In the firearm offense, he was sentenced to fifteen months on probation. He was on probation on the firearm conviction at the time of this offense.

The trial judge concluded that the testimony of the victim was credible while that of the defendant was not. In sentencing defendant, he stated that he had reviewed the evidence and was aware of the defendant's lack of education and inability to get employment. The judge concluded his statement as follows:

'And I have also gone over your presentence report and your past record. And it was brought up by your counsel that you had not been incarcerated on that particular charge, that you were placed on probation. And maybe that was an error that hopefully would do you some good. It did not.

'Such conduct, a contemptible act which all segments of society abhor. In light of the seriousness of this offense, I think, demonstrates that rehabilitation would be best served in a rigidly controlled structured environment.'

Defendant contends that this statement demonstrates that no individual discretion was exercised. The exercise of discretion contemplates a process of 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. McCleary v. State (1971), 49 Wis.2d 263, 182 N.W.2d 512. The trial judge's statement clearly demonstrates that he engaged in this reasoning process. As required by McCleary, the judge stated specific reasons for his conclusion: The defendant's past record of offenses, prior probation which was ineffective, and the seriousness nad contemptible nature of the offense.

The weight which is to be attributed to each factor is a determination which appears to be particularly within the wide discretion of the sentencing judge. There has been no showing, as required by Jung, supra, that the trial court based its determination upon factors not proper or irrelevant to sentencing or that it was influenced by motives inconsistent with impartiality.

The trial judge has discretion in determining the length of sentence within the permissible range set by statute. Hanson v. State (1970), 48 Wis.2d 203, 179 N.W.2d 909. An abuse of this discretion will be found 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. Mallon v. State (1970), 49 Wis.2d 185, 181 N.W.2d 364; Buckner v. State (1972), 56 Wis.2d 539, 202 N.W.2d 406; McCleary v. State, supra.

Our own review of the record convinces us the 'not more than twenty year sentence' was not excessive. This young woman was compelled, under what she could consider threats to take her life, to submit to sexual intercourse. She was confronted with four men, three of them armed, and forced into exceedingly humiliating circumstances. The suggestion that she was a willing victim is shattered by the undisputed fact she plunged head first, half-dressed, from a second-story window to avoid any further abuse. This was not only a vicious forceable rape, but was accomplished by the callous use of firearms. The twenty-year sentence may be tempered with our liberal parole considerations but, in any event, it is not excessive.

In the interval between the finding of guilty and the sentence in the defendant's...