State v. Cummings, 2011AP1653–CR.
| Decision Date | 10 January 2013 |
| Docket Number | No. 2011AP1653–CR.,2011AP1653–CR. |
| Citation | 2013 WI App 30,827 N.W.2d 928,346 Wis.2d 279 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Carlos A. CUMMINGS, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Portage County: Thomas T. Flugaur, Judge. Affirmed.
Before LUNDSTEN, P.J., SHERMAN and BLANCHARD, JJ.¶ 1PER CURIAM.
Carlos Cummings appeals a judgment convicting him of first-degree reckless injury and an order denying in part his postconviction motion for relief. He claims that his statement to police should have been suppressed and that his sentence was unduly harsh. We disagree for the reasons discussed below, and therefore affirm the circuit court.
¶ 2 The State charged Cummings as party to the crime of first-degree intentional homicide based upon allegations that he plotted with his lover to hire a woman to kill his lover's husband; drove the women to a location where she shot the husband in the head five times, then drove the woman away from the scene and hid the gun and bullets in his basement. The probable cause portion of the complaint included several inculpatory statements Cummings had made to police while in custody.
¶ 3 Cummings filed a suppression motion claiming, among other things, that police had violated his Fifth Amendment rights by continuing his interrogation after he had invoked his right to silence. After the circuit court ruled that most of Cummings' statements would be admissible, Cummings entered a plea to the reduced charge of being party to the crime of first-degree reckless injury, with two counts of aiding a felon read in.
¶ 4 At sentencing, the circuit court stated that it viewed Cummings as “the mastermind” of the plot, and it imposed a near-maximum term of fourteen years of initial confinement and ten years of extended supervision. Cummings filed a postconviction motion claiming that his sentence was unduly harsh and that trial counsel was ineffective for failing to request a risk reduction sentence on Cummings' behalf. The circuit court rejected both those arguments, and Cummings now appeals both the suppression ruling and the denial of his motion for sentence modification.
¶ 5 When reviewing a motion to suppress evidence, we will uphold the circuit court's findings of fact unless they are clearly erroneous. Wis. Stat. § 805.17(2) (2009–10); 1State v. Hindsley, 2000 WI App 130, ¶ 22, 237 Wis.2d 358, 614 N.W.2d 48. However, we will independently determine whether the facts found by the circuit court satisfy applicable constitutional provisions. Id.
¶ 6 A claim that a sentence was unduly harsh raises the question whether the circuit court erroneously exercised its sentencing discretion. State v. Grinde mann, 2002 WI App 106, ¶ 31, 255 Wis.2d 632, 648 N.W.2d 507. We afford discretionary sentence determinations a strong presumption of reasonableness because the trial court is in the best position to evaluate the relevant factors and the demeanor of the defendant. State v. Klubertanz, 2006 WI App 71, ¶ 20, 291 Wis.2d 751, 713 N.W.2d 116.
¶ 7 A defendant may terminate an interrogation at any time by invoking his or her rights under the Fifth Amendment. State v. Markwardt, 2007 WI App 242, ¶¶ 23–25, 306 Wis.2d 420, 742 N.W.2d 546. However, an invocation of the right to remain silent is subject to the “clear articulation” rule, meaning that “ ‘[a] suspect must, by either an oral or written assertion or non-verbal conduct that is intended by the suspect as an assertion and is reasonably perceived by the police as such, inform the police that he or she wishes to remain silent.’ ” Id., ¶¶ 26–28 (citation omitted). If a statement is ambiguous, such that “any reasonable competing inference can be drawn” as to what the suspect intended, it does not constitute an unequivocal invocation requiring the police to immediately stop questioning. Id., ¶ 36.
¶ 8 The exchange during which Cummings claims to have invoked his right to silence went as follows:
We fully agree with the circuit court's conclusion that Cummings' request to be taken to his cell was not an unequivocal invocation of Cummings' right to remain silent.
¶ 9 Cummings' statement was ambiguous because a competing, and indeed more compelling, interpretation is that he was merely attempting to obtain more information from the police about what his co-conspirators had been saying. That is, the suggestion that the police would be wasting their time if they were not willing to engage in a two-way flow of information could be taken as an invitation for more discussion, not a termination of the interview.
¶ 10 The courts of this state have the inherent power to modify an unjust sentence.2State v. Crochiere, 2004 WI 78, ¶ 11, 273 Wis.2d 57, 681 N.W.2d 524 (). There must, however, be some reason for the modification other than further reflection by the court. Id., ¶ 12. A sentence may be considered unduly harsh or unconscionable only when 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.’ ” Grindemann, 255 Wis.2d 632, ¶ 31, 648 N.W.2d 507 (citation omitted).
¶ 11 Here, Cummings contends that his sentence was unduly harsh because: (1) the circuit court failed to give adequate consideration to Cummings' “horrible childhood,” his “significant” drug and alcohol issues, and his mental health problems; (2) the court refused to impose a Risk Reduction Sentence; 3 and (3) Cummings' role in the offense did not justify a term of initial confinement that was twice as...
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