State v. Schreiber, 01-1511-CR.

Decision Date13 February 2002
Docket NumberNo. 01-1511-CR.,01-1511-CR.
Citation2002 WI App 75,251 Wis.2d 690,642 N.W.2d 621
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Aaron O. SCHREIBER, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Donarski of Vande Castle & Donarski, S.C., Green Bay.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jennifer E. Nashold, assistant attorney general, and James E. Doyle, attorney general.

Before Nettesheim, P.J., Anderson and Snyder, JJ.

¶ 1. SNYDER, J.

Aaron O. Schreiber appeals from a judgment of conviction for taking and driving a motor vehicle without the owner's consent and an order denying his motion for postconviction relief. Schreiber makes two arguments: (1) that the sentencing court imposed an unduly harsh sentence and failed to properly apply the appropriate sentencing factors and (2) that the sentencing court relied upon impermissible factors in violation of his First Amendment rights. We disagree with both contentions and affirm the judgment and order.

FACTS

¶ 2. On January 7, 2000, Schreiber was convicted of taking and driving a motor vehicle without the owner's consent, contrary to WIS. STAT. § 943.23(2) (1999-2000), after entering a no contest plea pursuant to a plea bargain. On March 28, 2000, sentence was withheld and Schreiber was placed on probation for four years. At this sentencing hearing, the trial court made the following comments:

He seems to be gang orientated and gang involved.... He has somewhat of an attitude which may be related to his gang involvement or related to just the way he feels about things but he does seem to have an attitude against authority, against people in authority.... As conditions of probation, the condition of probation will be subject to the usual rules of the Department, the rules and conditions that they may impose.... The defendant is not to contact — have contact with gang members. He is not to be involved in any gang activity. The quickest way for him to get back into prison is if he gets involved in gang activity. (Emphasis added.)

Despite this clear admonition, on the very day he was sentenced, Schreiber wrote letters to other gang members, asked for gang membership fees and ordered assaults on three persons.

¶ 3. In November 2000, Schreiber's probation was revoked and on December 20, 2000, he returned to the trial court for sentencing after revocation. A presentence report recommended a thirty-month prison term. At sentencing, the Winnebago County Sheriffs Department presented the trial court with some poetry written by Schreiber while he was in jail. The verses read as follows:

Automatic weapons or pipe bombs of homemade napalm addressed to those bystanders supposed innocent
[H]appiness is the smell of plastic explosives that leave human flesh smoking and cause delicious fits of confusion cause I chose your life's conclusion
[H]appiness is when you learn exactly how to burn a carcass done well and not leave the trace of evidence or smell
[H]appiness to me is a sea of red produced to the dead and a girl that understands my world.
... [E]ventually the[y]'ll have to release the beast into the streets to tamper with peace. My destiny awaits me at the White House 1600 Penselvania [sic] Ave. When will it happen Any Day Now.

¶ 4. The prosecution recommended the maximum sentence of five years in light of Schreiber's "unproductive period of probation and jail time," noting that Schreiber had started with six months' jail time as a condition of probation but upon completion he was transferred to a boot camp as an alternative to revocation "in light of all of the violations that went on while he was still in jail." The prosecution also observed that Schreiber was terminated from the boot camp "in light of continuing violations primarily of gang activity and ... total disregard and continued blatant violations of appropriate behavior."

¶ 5. The trial court imposed the five-year maximum sentence. The trial court noted that despite the previous warnings, Schreiber continued to be involved in gang activity and had indicated that he was "not willing to give up [his] gangster disciple lifestyle." The trial court stated that it had originally planned to follow the thirty-month recommendation from the presentence report but then explained:

I don't want you out there. The only thing I can do to make sure that happens is to give you a sentence that I think under the circumstances guarantees ... the community [is] protected from you, and you have had every opportunity ... to follow through with probation.

¶ 6. On May 1, 2001, Schreiber filed a motion for postconviction relief asking that his sentence be vacated or modified. This motion was heard on May 10, 2001, and denied by order on May 15, 2001. Schreiber appeals.

DISCUSSION

[1-3]

¶ 7. The standard of review of a motion for sentence modification is whether the sentencing court erroneously exercised its discretion. See Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). There is a strong public policy against interfering with the trial court's sentencing discretion and we must assume that the sentencing decision was reasonable. State v. Littrup, 164 Wis. 2d 120, 126, 473 N.W.2d 164 (Ct. App. 1991). An erroneous exercise of discretion will be found only if the sentence is excessive, 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. Ocanas, 70 Wis. 2d at 185.

[4, 5]

¶ 8. The three primary factors a sentencing court should consider in sentencing are the gravity of the offense, the defendant's character and rehabilitative needs and the need to protect the public. State v. Echols, 175 Wis. 2d 653, 682, 499 N.W.2d 631 (1993). Elements of these factors include a record of criminal offenses, a history of undesirable behavior patterns, the defendant's personality, character and social traits, the results of a presentence investigation, the defendant's age, educational background and employment record, the defendant's demeanor at trial and his or her remorse, repentance and cooperativeness. State v. Jones, 151 Wis. 2d 488, 495, 444 N.W.2d 760 (Ct. App. 1989). The weight assigned to each factor is particularly within the trial court's discretion. State v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183 (Ct. App. 1984). [6, 7]

¶ 9. Nonetheless, a trial court does not possess unfettered sentencing discretion; a sentence may not be based on constitutionally invalid grounds, such as activity or beliefs protected by the First Amendment. State v. J.E.B., 161 Wis. 2d 655, 663, 469 N.W.2d 192 (Ct. App. 1991). To show that his sentence was excessive, unusual or disproportionate to the offense, Schreiber must demonstrate that the record contains an unreasonable or unjustifiable basis for the sentence. Id. at 661.

[8]

¶ 10. Schreiber contends that the sentencing court imposed an unduly harsh sentence and failed to properly apply the appropriate sentencing factors. Schreiber specifically argues that his sentence was unduly harsh because he received the maximum sentence when the appropriate factors do not support such a result. We disagree with these contentions.

¶ 11. We reiterate that the three primary factors a court must consider in sentencing are the gravity of the offense, the defendant's character and rehabilitative needs and the need to protect the public. Echols, 175 Wis. 2d at 682. The trial court addressed the first factor:

The underlying offense is a serious offense especially when you look at it the way that you went about with the understanding that you were specifically looking for a vehicle with the keys in it. And although it is a property offense, I consider it to be fairly serious because you take this person's vehicle, you leave the area, and you use it as your own. And there is a lot of premeditation involved in that offense. And so it is not just a situation where you've decided you are going to go joyriding. It is a situation where you are out specifically looking for a vehicle to use because you do not want to take the time to go out and get it like everybody else does by working and paying for it.

¶ 12. The trial court then concentrated on the remaining two factors: Schreiber's character and rehabilitative needs and the need to protect the public. The trial court relied primarily on Schreiber's continued involvement in gang activity despite the original sentencing court's warning that he would get prison time if such involvement continued. The sentencing court noted that Schreiber had "not taken one step to follow through with probation," that he indicated that he was "not willing to give up [his] gangster disciple lifestyle" and that he wanted to be revoked. The trial court observed that Schreiber had a criminal history, notably an attempted armed robbery and possession of crack cocaine, and that he had spent time in segregation.

¶ 13. The trial court stated:

One of the very last pieces of advice [the previous sentencing court] gives to you is: "The quickest way for you to get back into prison is to be involved in gang activity...." The day that he sentences you, you go and you send letters to other gang members asking for membership fees, order beatings of three other male individuals.
... [T]here were several indications that you spent time in segregation before you were sentenced. Now, you have spent time in segregation again while you are on revocation
...

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