State v. Johnson
| Decision Date | 04 May 1993 |
| Docket Number | No. 92-2023-CR,92-2023-CR |
| Citation | 177 Wis.2d 620,503 N.W.2d 21 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Carl Joseph JOHNSON, Jr., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.
Carl Joseph Johnson, Jr., appeals from an order denying his motion for postconviction relief. Johnson's motion requested a modification of sentence or a new trial.
Johnson claims: (1) the trial court erroneously exercised its discretion in sentencing; (2) a change in parole policy was a new factor warranting modification of sentence; and (3) the defendant was unconstitutionally denied access to his presentence report. Because the trial court did not erroneously exercise its discretion in sentencing, because the alleged change in parole policy is not supported by the record and was not considered by the trial court, and because Johnson was not unconstitutionally denied access to his presentence report, we affirm.
On October 13, 1986, a criminal complaint was issued charging Johnson with false imprisonment, taking hostages, and two counts of first degree sexual assault. The charges arose out of an incident which occurred on October 10, 1986. Johnson was charged with sexually assaulting his wife, Stephanie, and her twelve-year-old daughter, S.H. Johnson was also charged with falsely imprisoning his wife, and holding S.H. hostage in a bedroom.
Johnson pled not guilty and not guilty by reason of insanity to these charges. On February 16, 1988, the defendant stipulated to a court trial in the first phase of the insanity proceeding. The stipulation was tantamount to a guilty plea; however, it allowed Johnson to preserve appellate issues that would have otherwise been waived if Johnson had pled guilty.
After reading the criminal complaint, the court found the defendant guilty of all four crimes. The case went to a jury for the second phase of the insanity proceeding to determine Johnson's mental state of mind. Testimony was taken from a number of doctors and a detective. After considering the evidence, the jury found that the defendant did not have a mental disease at the time of the commission of the crimes. A presentence report was then ordered.
All of the crimes were subject to penalty enhancement under sec. 939.63, Stats., because the defendant committed the crimes while armed with a dangerous weapon, a knife. Johnson faced maximum prison terms of five years for false imprisonment, twenty years on each count of sexual assault, and twenty-five years for taking hostages.
At sentencing on March 25, 1988, the State, noting that the defendant could have been charged with additional crimes totaling over 200 years in prison, argued for the imposition of the maximum penalty of seventy years in prison. The defendant argued for a maximum term of twenty years. After oral argument, the court sentenced Johnson to a total term of forty-five years in prison. Other facts will be set forth as necessary.
On July 22, 1992, Johnson filed a motion for a new trial and sentence modification. The motion was denied without a hearing. Johnson now appeals.
Sentencing is left to the sound discretion of the sentencing court. State v. Smith, 100 Wis.2d 317, 323, 302 N.W.2d 54, 57 (Ct.App.1981). The procedure for reviewing a sentence is two-fold. First, a reviewing court must determine whether the trial court properly exercised its discretion in imposing sentence. Second, a reviewing court must determine whether that discretion was erroneously exercised by imposing an excessive sentence. Id. Three primary factors which are 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).
In the present case, it is apparent from the record that the trial court properly exercised its discretion in sentencing Johnson. The trial court considered the gravity of the offense, the character of the defendant, and the need to protect the public. Moreover, the trial court also reviewed the presentence report and the sentencing guidelines. We conclude that the trial court exercised discretion in sentencing.
An erroneous exercise of 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." State v. Van Laarhaven, 90 Wis.2d 67, 71, 279 N.W.2d 488, 490 (Ct.App.1979). Further, "[a] sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment." State v. Daniels, 117 Wis.2d 9, 22, 343 N.W.2d 411, 417 (Ct.App.1983).
In the present case, the sentence imposed was forty-five years, while the maximum which could have been imposed was seventy years. We therefore conclude that the sentence imposed was not so excessive as to shock the public sentiment. The sentencing court did not misuse its discretion. 1
Johnson next posits that a change in parole policy subsequent to his sentencing warrants modification of the sentence. Johnson argues that the change has resulted in longer incarceration periods for convicted criminals. Johnson alleges that, prior to this change, parole policy favored an early release of a defendant. Thus, Johnson's argument assumes not only that the sentencing court considered this pre-change parole policy when it decided his sentence, but that the sentencing court also sentenced Johnson to a longer period of time in order to counteract the prior parole policy which favored an early release.
Although a change in parole policy may warrant sentence modification, see Kutchera v. State, 69 Wis.2d 534, 552-53, 230 N.W.2d 750, 760 (1975), and an appellate court may decide this issue without deference to a lower court's determination, State v. Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609, 611 (1989), we find no evidence in the record that parole policy has indeed been changed as Johnson asserts. Moreover, "[a] change in parole policy cannot be relevant to sentencing unless parole policy was actually considered by the circuit court." Id. at 14, 434 N.W.2d at 613. Here, the record does not show that parole policy was a factor that the trial court considered when sentencing the defendant. Thus, Johnson's sentence will not be modified on this ground.
Johnson also argues that he was unconstitutionally denied access to his presentence investigation report. Johnson maintains that he never saw or read the report, and that the trial court failed to assure him access to his presentence report. 2 Section 972.15(2), Stats., governs presentence investigation reports and the application of the facts to this section is a question of law which we review independently. State v. Skaff, 152 Wis.2d 48, 56, 447 N.W.2d 84, 88 (Ct.App.1989). Section 972.15(2) provides:
In Skaff, this court further interpreted...
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