State v. Thomas, 95-2732-CR
| Decision Date | 25 July 1996 |
| Docket Number | No. 95-2732-CR,95-2732-CR |
| Citation | 552 N.W.2d 899,204 Wis.2d 111 |
| Court | Wisconsin Court of Appeals |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Jimmy THOMAS, Defendant-Appellant. |
Before EICH, C.J., DYKMAN and VERGERONT, JJ.
Jimmy Thomas appeals from a judgment convicting him of robbery as a repeat offender in violation of §§ 943.32(1) and 939.62, Stats., and an order denying his motion for postconviction relief. Thomas argues that he should be resentenced because his original sentence was based at least in part on improper and inaccurate grounds. We conclude that the trial court properly exercised its discretion in sentencing Thomas. We therefore affirm.
On February 10, 1994, Jimmy Thomas and Tim Fox entered the Lions Quik Mart in Beloit. While the clerk was waiting on Thomas at the cash register, Fox came behind the counter, struck her on the head several times, and took money from the register. Thomas and Fox shared the stolen money to purchase cocaine.
Thomas was charged with the crime of robbery as a repeat offender, pled guilty on July 25, 1994, and was sentenced on September 8, 1994. The trial court considered several factors in sentencing Thomas and concluded that a fifteen-year prison sentence was appropriate. 1 On July 15, 1995, Thomas filed a motion seeking a vacation of his sentence and resentencing before a different judge on the grounds that the sentence was based in part on improper and erroneous grounds. The court denied Thomas's motion, and Thomas appeals.
Sentences imposed by the trial court are deferentially reviewed under an erroneous exercise of discretion standard. State v. J.E.B., 161 Wis.2d 655, 661, 469 N.W.2d 192, 195 (Ct.App.1991). Under this standard, we presume that the trial court acted reasonably unless the defendant shows some unreasonable or unjustifiable basis in the record for the sentence. Id. Unjustifiable sentencing bases include improper or irrelevant considerations. Id.
Thomas argues that he is entitled to a resentencing because the trial court's sentencing was based at least in part on improper and inaccurate grounds. Thomas argues that the trial court erred in finding that his prior plea bargains indicate he has an unfavorable demeanor and is a manipulator. Thomas also argues that the court erred in concluding that he is "equally guilty with Mr. Fox." Finally, Thomas argues that the court relied on erroneous facts in concluding that he was unwilling to work, support his child or make restitution.
We do not need to discuss whether the grounds cited by Thomas were improper or inaccurate, however. At Thomas's motion for postconviction relief, the trial court stated that even if it did not consider the factors that Thomas believed were improper or inaccurate, the sentence imposed is still appropriate based on the other sentencing factors mentioned by the court.
When imposing sentencing, the trial court should consider three factors: the gravity of the offense, the character of the offender, and the need for public protection. McCleary v. State, 49 Wis.2d 263, 276, 182 N.W.2d 512, 519 (1971). In addition, it is within the court's discretion to consider the following factors: (1) the past record of criminal offense; (2) any history of undesirable behavior patterns; (3) the defendant's personality, character and social traits; (4) the results of a presentence investigation; (5) the vicious or aggravated nature of the crime; (6) the degree of the defendant's culpability; (7) the defendant's demeanor at trial; (8) the defendant's age, educational background and employment record; (9) the defendant's remorse, repentance and cooperativeness; (10) the defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention. State v. Tew, 54 Wis.2d 361, 367-68, 195 N.W.2d 615, 619 (1972).
The trial court properly relied on the factors set forth in McCleary in sentencing Thomas. First, the trial court considered the gravity of the offense. The court noted that Thomas stood by as Fox assaulted and robbed the store clerk, who suffered serious physical and mental damage as a result of the robbery. Thomas then shared in the proceeds of the robbery to purchase cocaine.
Second, the trial court considered Thomas's character. The court noted that Thomas's actions could not be dismissed as youthful indiscretion because he was thirty-five-years old. The court observed that Thomas was a high school graduate and could have led a law-abiding life. The court also considered Thomas's past behavior, including fathering a child outside of marriage and a history of alcohol and drug abuse.
Third, the trial court considered the need for public protection. When considering the need to protect the public, the trial court appropriately considered Thomas's extensive criminal history and stated that the length of his criminal record was the most important factor considered in Thomas's sentencing. Thomas's criminal record is as follows: On February 12, 1979, he pled guilty to two counts of burglary and felony theft. For the first offense, he was sentenced to sixty days in jail and three years' probation, and for the second offense he was placed on three years' probation to run concurrent with the probation for the first offense. On June 1, 1981, he pled guilty to three counts of burglary. A five-year prison term was stayed for each of the burglary convictions and he was placed on five years' probation on each count concurrent, nine months jail, placed in the Rock Valley Alternative Program, and assessed costs, attorney fees and restitution. On October 14, 1983, he was fined $97.50 for obstructing an officer. On November 21, 1983, he pled guilty to the offense of misdemeanor theft. He was sentenced to one year probation, five days jail, and assessed court costs. On October 6, 1987, he was fined $97.50 for battery. On October 25, 1988, he was fined $292.00 for shoplifting and retail theft. He served twelve days in jail for default of payment. On March 16, 1990, he was sentenced to three years in prison for forgery. On August 31, 1990, he was sentenced to three years in prison for attempted residential burglary. This sentence was concurrent with the three-year prison sentence for forgery. Finally, on an unknown date he was fined $125.00 for carrying a concealed weapon.
It was not unreasonable or unjustifiable for the trial court to sentence Thomas to fifteen years in prison based on his history of criminal behavior, his character and the seriousness of the offense. The trial court did not erroneously exercise its discretion in imposing this sentence.
Thomas argues that if any of the factors considered at the sentencing hearing were improper or inaccurate, the sentencing process must start over and the trial court cannot, as it did here, find that the sentence was appropriate even when accepting the...
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