State v. Leszynski

• Decision Date: 10 June 2015
• Docket Number: No. 2014AP968–CR.,2014AP968–CR.
• Citation: 868 N.W.2d 198 (Table),364 Wis.2d 527
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Leann L. LESZYNSKI, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

364 Wis.2d 527

868 N.W.2d 198 (Table)

STATE of Wisconsin, Plaintiff–Respondent

v.Leann L. LESZYNSKI, Defendant–Appellant.

No. 2014AP968–CR.

Court of Appeals of Wisconsin.

June 10, 2015.

Opinion

¶ 1PER CURIAM.

Leann Leszynski appeals her conviction for neglecting a child, which resulted in the death of her daughter, and the denial of her postconviction motion.On appeal, she challenges both her sentence and the circuit court's denial of her motion to suppress pre- and post-Miranda¹ statements she made to police officers.We hold that the circuit court properly used its discretion in imposing Leszynski's sentence and that it properly denied her motion to suppress.Therefore, we affirm.

Facts

¶ 2 On May 1, 2012, Leszynski's doctor's office contacted the West Bend Police Department.The doctor's office informed the police department that Leszynski had called and told the person she spoke with that her daughter was unresponsive.The police department dispatched an officer to Leszynski's apartment building.The police officer then contacted Leszynski by phone, and Leszynski agreed to let the officer into the building.Leszynski let the police officer into her apartment.Once inside, the police officer checked the child and did not find any signs of life.The officer then contacted the detective bureau and moved Leszysnki and her live-in boyfriend into the hallway.The cause of death was later determined to be an infection that began in a cut on the child's finger that spread throughout her body, although this was determined after an autopsy, some time after police investigation and interrogation had concluded.

¶ 3 When the detective arrived at the apartment, Leszynski expressed that she wanted to go somewhere more private to speak about what happened.The detective suggested that they go to the police department and use the interview rooms there.Leszynski voluntarily agreed to go to the police department.She was transported in a patrol car by a police officer, but she was not handcuffed and the detective informed her that she was not in custody.

¶ 4 Upon arriving at the police station, Leszynski smoked a cigarette in the parking lot.Leszynski was then placed in a locked interview room.However, a police officer constantly monitored the room and would provide food, water, and bathroom breaks upon request.Leszynski was informed that, even though the room had an automatic lock, she only needed to knock on the door and it would be opened.She was, in fact, provided with water and a bathroom break, but she made no other requests.She was repeatedly told at the police station that she was not under arrest.

¶ 5 The detective initially interviewed Leszynski for just over an hour before another detective advised her of her Miranda rights both orally and in writing.In total, Leszynski stayed at the police station for about ten and one-half hours before being transported to jail, and she never said she did not want to speak further with the detective.

¶ 6 Before trial, Leszynski filed a motion to suppress the statements she made to police officers, which the circuit court denied.Leszynski then pled no contest to intentionally contributing to the neglect of a child resulting in death in violation of Wis. Stat. 948.21(1)(d)(2013–14).²The State recommended a sentence of ten years of initial confinement.However, the circuit court issued the maximum sentence of fifteen years' initial confinement and ten years' extended supervision.Leszynski now appeals.

Analysis

Justification for the Maximum Sentence

¶ 7 Before providing our analysis of the issues, we note our opinion in a companion case, State v. Streicher,2014AP423–CR, unpublished slip op. (WI App May 6, 2015).We incorporate by reference the Streicher opinion whenever relevant.

¶ 8 The first issue we will address is the circuit court's decision to impose the maximum possible sentence on Leszynski.The circuit court exercises its discretion in issuing a sentence.State v. Gallion,2004 WI 42, ¶ 17, 270 Wis.2d 535, 678 N.W.2d 197.Our review is limited to determining whether the circuit court erroneously exercised its discretion.Id.There is a “strong public policy against interference with the sentencing discretion of the trial court and sentences are afforded the presumption that the trial court acted reasonably.”State v. Spears,227 Wis.2d 495, 506, 596 N.W.2d 375(1999)(citation omitted).We will only find that the circuit court erroneously exercised its discretion if the sentence is so disproportionate that it “shock [s] public sentiment and violate[s] the judgment of reasonable people concerning what is right and proper under the circumstances.”Ocanas v. State,70 Wis.2d 179, 185, 233 N.W.2d 457(1975).

¶ 9The circuit court should at least consider these three factors when deciding on a sentence: “(1) the gravity and nature of the offense, including the effect on the victim, (2) the character and rehabilitative needs of the offender, and (3) the need to protect the public.”Spears,227 Wis.2d at 507, 596 N.W.2d 375.The circuit court can also consider

the aggravated nature of the crime, the past record of criminal offenses, any history of undesirable behavior patterns, defendant's personality, character and social traits, results of presentence investigation, degree of defendant's culpability, defendant's demeanor at trial, defendant's age, educational background and work history, defendant's remorse, repentance and cooperation, and the length of pretrial detention.

State v. Smith,207 Wis.2d 258, 281 n. 14, 558 N.W.2d 379(1997).

¶ 10The circuit court determined in this case that the offense was so serious that “the only appropriate sentence is the imposition of the maximum penalty authorized by the Wisconsin Legislature.”The court explained:

It was obvious to Leann Leszynski that [the daughter] was declining.These are severe and clear and evident injuries.This little one was getting worse.She was not getting better.This had to be abundantly clear to the defendant, yet she almost totally ignored her child's distress.This is a very grave case.An extremely sad case.[The young girl] should be with us today.

The court went on to say that it would depreciate the seriousness of the offense to impose anything less than the maximum sentence.The court considered the gravity of the offense, the rehabilitative needs of Leszynski, and the need to protect the public, holding that the most important consideration was the seriousness of the crime.The court held that the main purpose of the sentence was punishment, but protecting the community and the need to deter future crimes were also important.SeeState v. Owens,2006 WI App 75, ¶ 8, 291 Wis.2d 229, 713 N.W.2d 187(punishment is a valid sentencing objective).

¶ 11The court in this case considered all the relevant factors with regard to sentencing.In fact, Leszynski acknowledges as much.Her complaint is that the court gave her the maximum sentence and this was because the court did not properly “balance” the relevant factors, did not give enough credit to her prior good character, and, most importantly according to her, did not start with the proposition that she should only get the “minimum amount of custody” needed to protect the public, reflect the gravity of the crime and rehabilitate her.The theme of her complaint is that this was a one-time occurrence involving her and her daughter; it is unlikely to be replicated so as to endanger the general public.Therefore, how much the public is protected is questionable.And, while it is a tragedy that her daughter died because she did not seek medical attention in time, it was not because she intended harm, but because she thought that a cut finger was capable of being treated with a home remedy.That she was badly mistaken does not mean, according to her, that the “gravity” of the offense was high enough to support a maximum sentence.She also complains about the presentence investigating writer, but we will get to that issue in turn.

¶ 12 First, she is simply wrong to say that circuit courts have a duty to “balance” the three relevant factors.We have found no case that uses the term.And she cites no case to support her.The best she can do is to quote Gallion where the supreme court wrote that a sentence should “call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.”Gallion,270 Wis.2d 535, ¶ 44, 678 N.W.2d 197(citation omitted).The law is that the court must “consider” each factor.This means that it must pay attention to each factor and show regard for each.But “consider” is not synonymous with “balance,” which is to offset or compare one factor to another.This may seem to be a play on words, but words are important here.Courts have no duty to start a sentence as if it were a fifty-fifty property division in a divorce and then weigh each factor against each other and discuss the weight given to each factor.Rather, the court, in its discretion, looks to the factor or factors that the court deems to be material to the ultimate sentence.Ocanas,70 Wis.2d at 185, 233 N.W.2d 457.It is a subtle difference, but a difference nonetheless.

¶ 13 Now, getting back to Leszynski's claim, she is basically saying that, because this was a one-time occurrence concerning her neglect of her daughter, the public is unlikely to be harmed.But, as we read the circuit court's sentencing remarks, that is not the main factor which moved the circuit court to give the maximum sentence.Rather, it was the “gravity of the offense” which the court deemed most important.The court noted that the daughter was only three years old.Yet, this young child, according to the forensic expert, had wounds on her body that were inconsistent with everyday scratches and bruises that can be expected of active, busy children.This young girl had blunt head and neck injuries,...