State v. Ramel

• Decision Date: 14 November 2007
• Docket Number: No. 2007AP355-CR.,2007AP355-CR.
• Citation: 2007 WI App 271,743 N.W.2d 502
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ahern RAMEL, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

743 N.W.2d 502

2007 WI App 271

STATE of Wisconsin, Plaintiff-Respondent, v. Ahern RAMEL, Defendant-Appellant.

No. 2007AP355-CR.

Court of Appeals of Wisconsin.

November 14, 2007.

Appeal from a judgment and an order of the circuit court for Milwaukee County: Mel Flanagan and William W. Brash III,¹ Judges. Affirmed in part; reversed in part; and cause remanded with directions.

On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Tyroler, Assistant State Public Defender of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Anne C. Murphy, Assistant Attorney General and J.B. Van Hollen.

Before CURLEY, P.J., WEDEMEYER and KESSLER, JJ.

¶ 1 KESSLER, J

Ahern Ramel appeals from the denial of his postconviction motion to vacate a fine of $1000² (which was imposed in addition to a prison sentence of ten years) on the grounds that the trial court gave no explanation for imposition of the fine in addition to the prison term and, alternatively, from the denial of his postconviction request for an indigency hearing to determine whether he had an ability to pay the fine imposed. The motion was denied without a hearing. We reverse, vacate the fine, and remand to the trial court to correct the judgment accordingly.

Background

¶ 2 Ramel was initially charged with second-degree sexual assault, as a repeater, and with kidnapping. On the day of trial, the charge was reduced to one count of third-degree sexual assault with the State free to argue anything at sentencing. Ramel entered a guilty plea. Later, after review of a presentence investigation report and extensive arguments by counsel, the court imposed a sentence, consecutive to any sentence Ramel was serving, comprised of five years of initial confinement followed by five years of extended supervision and a fine of $1000.

¶ 3 The record is devoid of any information about Ramel's financial condition at the time of sentencing, with the exception of a brief reference in the presentence report of "a vague employment history, which was unverifiable." The report described Ramel's only employment at the time was working at "Chimney Expert" as a mason earning ten dollars an hour. The report is silent as to whether this employment was full-time, part-time or only occasional. There is no identification of any assets Ramel might have had from which a fine could be paid. Neither the State, Ramel nor his counsel mentioned his financial or employment status at the sentencing hearing.

¶ 4 After correctly observing that it must consider the nature of the offense, the interest of the community and the particular characteristics of the defendant, the trial court made lengthy sentencing comments. The court's comments demonstrate a detailed and thoughtful analysis of the incarceration and extended supervision portions of the sentence as they relate to Ramel's history, character and effect of his criminal activities on the community. We set out the sentencing comments in detail, in the sequence in which they occurred, in order to give context to the trial court's imposition of the fine.

And, sir, you're 35 years of age. You have no high school education. You were residing primarily with your mother and your employment is kind of hard to verify and a little sketchy, but you have had some employment.... You had seven convictions as a juvenile ... [a]nd ... nine convictions as an adult....

You were on supervision at the time that this took place. . . . [Y]ou were very actively involved in using drugs and alcohol....

You had been out in the community seven months. You have been revoked and are now serving a three year sentence that was your extended supervision on your prior offenses.

You have a history of having some difficulty coming to terms with responsibility. ... [T]he letter from your family and from your girlfriend ... both say that you've never had problems with women in the past ... yet if you look back in your history, it's been going on since you were a juvenile. You were arrested for an offense as a juvenile ... that came out of the fact that you were mad at a female peer. You have assaulted your mother on several occasions. You have ... prior violence between you and ... the mother of your child and there's this victim. There is an ongoing problem with your relationship with women....

[S]o many of these offenses were violent. The disorderly conducts, many of them were violent. The batteries were clearly violent. You have false imprisonment. Domestic abuse injunction violations and [the] very, very violent acts that you have imposed upon this particular victim. You have a very, very aggressive personality and it has pretty much gone unchecked.

....

You have family. You have your mother. You have siblings. You have one child. You have an AODA history which is quite serious; goes back to when you were quite young. You've used fairly consistent use of alcohol, marijuana and cocaine. You've had many mental health interventions both in the juvenile and adult system. You have been diagnosed with depression, explosive disorder.

....

[T]hat brings us basically to this ... particular offense, which was extremely violent, extremely abusive.... It ... was not a snapshot or a small period of an isolated incident. This went on for hours and hours and hours. You put this woman through hell is what you did.

[T]he matter was amended from a potential of 80 years of incarceration to 10 years of incarceration. You were given great consideration in that amendment. And now the Court has to come up with a sentence which would be appropriate given all these facts and circumstances your age, your prior history, your correctional history, your long history of violence and the extremely violent and abusive nature of this particular assault on this woman.

¶ 5 After this impressively thorough and thoughtful statement, the trial court imposed the maximum prison term composed of equal periods of incarceration and extended supervision. The trial court then advised Ramel of the penalties that the Department of Corrections can impose as additional confinement time if he violates prison regulations, described the extension of his incarceration time if he is placed in segregation status, described the conditions of extended supervision that will be imposed by his extended supervision agent and, finally, imposed additional extended supervision conditions of abstinence from drugs or alcohol, obtaining full time employment, and having no contact with the victim or her family. A colloquy with counsel followed concerning a restitution figure, which counsel indicated would be provided later by stipulation. The trial court, at the State's request, then ordered HIV and STD tests and explained to Ramel that the results would be provided to the victim and to him.

¶ 6 The court next advised Ramel of what circumstances could lead to his being returned to prison for the remaining time on his sentence. A short colloquy followed between the trial court and Ramel's counsel about whether any sentence credit was to be applied. The court then advised Ramel of his right to appeal and of the collateral consequences of his felony conviction. Just before the proceedings concluded, the court stated:

The Court will impose a thousand dollar fine plus costs and surcharges to be paid from prison wages not to exceed 25 percent and any remainder would be paid as a condition of your release plus your supervision fees and they would be paid in that same manner. Any portion of your financial obligations left unpaid at the end of your sentence would be converted to a civil judgment against you.

¶ 7 After sentencing, the case was transferred to a new judge due to judicial rotation. Ramel filed a postconviction motion asking the court "to vacate the fine ... on the ground that it was an erroneous exercise of discretion; [or,] alternatively ... for an indigency hearing on his ability to pay" the fine. The trial court denied the motion, holding that there was no erroneous exercise of discretion because the maximum fine was $25,000, and "[t]aking his circumstances (i.e. that he would be in prison for a significant length of time) and his indigency status into consideration, the court imposed the most minimal fine possible." (Emphasis added.) Nothing in the record explains how the court concluded Ramel was in an "indigency status" at the postconviction hearing, or why that status and the length of incarceration made the fine "the most minimal fine possible." The postconviction court denied Ramel's request for an indigency hearing because "[t]he [trial] court did not order any jail time as a non-payment penalty for failing to pay the fine and costs of this action"³ and because the "request is premature since it is not known at this time what his ability to pay will be during the period of extended supervision." This appeal followed.

Standard of Review

¶ 8 The standards we employ in reviewing an imposed sentence are well-settled. State v. Brown, 2006 WI 131, ¶ 19, 298 Wis.2d 37, 725 N.W.2d 262.

A circuit court exercises its discretion at sentencing, and appellate review is limited to determining if the court's discretion was erroneously exercised. This court stated in McCleary [v. State], 49 Wis.2d [263,] 281, 182 N.W.2d 512 [(1971)], that "[a]ppellate judges should not substitute their preference for a sentence merely because, had they been in the trial judge's position, they would have meted out a different sentence."

Brown, 298 Wis.2d 37, ¶ 19, 725 N.W.2d 262 (citation omitted).

¶ 9 We will "`search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained.'" State v. Lechner, 217 Wis.2d 392, 419, 576 N.W.2d 912 (1998) (citation omitted). The trial court's findings of fact will not be reversed unless they are clearly erroneous. WIS. STAT. § 805.17(2) (2005-06).⁴

Where a trial court fails to make...