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07/01/83 STATE WISCONSIN v. ROBERT J. MACEMON

July 1, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
ROBERT J. MACEMON, DEFENDANT-APPELLANT



Appeal from an order of the Circuit Court for Racine County, Dennis J. Flynn, Circuit Judge. On certification from Court of Appeals.

Louis J. Ceci, J.

The opinion of the court was delivered by: Ceci

A jury found the defendant-appellant, Robert J. Macemon, guilty of first-degree sexual assault, in violation of sec. 940.225(1) (b), Stats. On November 24, 1981, the circuit court of Racine county, Honorable Dennis J. Flynn, sentenced Macemon to not more than twenty years' imprisonment.

On June 8, 1982, Macemon filed a motion to modify sentence, alleging, in part, that the proposed felony sentencing guidelines *fn1 were a "new factor" that should be considered by the court. Racine county had not adopted the felony sentencing guidelines. The issues presented are: (1) Whether evidence that the defendant's sentence was substantially more severe than the norm set by the guidelines constitutes a "new factor" that entitles him to a sentence modification hearing; and (2) whether the sentence must be modified because it was unduly harsh. The trial court concluded that the information in the guidelines was not a "new factor" and dismissed the motion.

This court accepted the certification of the defendant's appeal from the court of appeals. Because we conclude that sentencing guidelines do not supersede the sentencing court's discretion and do not constitute a new factor entitling a defendant to a sentence modification hearing, and because we believe the sentence imposed was not unduly harsh, we affirm the trial court's order denying the defendant's motion.

During the early morning hours of September 18, 1981, the defendant, Robert Macemon, accosted a car going into the parking lot of an Open Pantry store in Racine. J.Q., a young woman, was alone in the car. The defendant opened the car door and asked J.Q. for a ride home. (It was raining.) J.Q. agreed.

At the defendant's request, J.Q. first drove to a nearby Taco Bell, where the defendant purchased some food. The defendant then gave J.Q. directions concerning which way to drive. Eventually, he directed her to drive into Tabor Sokol Park. The defendant then attempted to kiss J.Q. She immediately resisted, biting his tongue and pulling his hair.

The defendant then pulled a knife that was ten to twelve inches long and placed it on J.Q.'s neck. He directed her into a wooded area and ordered her to remove her pants. The defendant had J.Q. lie on the ground, and he placed the knife in the ground beside her. The defendant then had sexual intercourse with J.Q. After the assault was over, J.Q. drove off alone and reported the rape to the Caledonia Police Department.

On November 10, 1981, a jury rendered a verdict of guilty to the charge of first-degree sexual assault. The trial Judge sentenced the defendant to not more than twenty years' imprisonment. The Judge noted that twenty years was the maximum penalty for first-degree sexual assault. In explaining the sentence being imposed, he cited the defendant's history of problems with the law as a juvenile and as an adult. The Judge stated that there was "an indication of significant involvement with and perhaps dependency upon chemicals, particularly alcohol." He noted that the crime for which the defendant had been convicted was a crime against a person. He cited factors to show the aggravated nature of the crime, including the fact that the defendant was on probation at the time the offense occurred. The Judge noted that the victim was a stranger who was trying to help the defendant by giving him a ride home on a rainy night and that the defendant used a deadly weapon to carry out the assault.

On June 8, 1982, the defendant brought a motion to modify his sentence. The first basis of his motion was that at the time of the sentencing, the trial court was not informed of the proposed felony scoring guidelines. The defendant stated that under the guidelines, "only 37 percent of individuals with defendant's criminal history, and offense severity are incarcerated. The analytic sample of length of incarceration shows that the vast majority of sentences does not exceed ten years." As an alternative basis for his motion, the defendant asserted that the twenty-year sentence imposed (the maximum permissible sentence) was unduly harsh under the circumstances and constituted an abuse of discretion, under State v. Wuensch, 69 Wis. 2d 467, 230 N.W.2d 665 (1975).

The trial court denied the motion because of its determination that the information presented by the defendant did not constitute a new factor under Wisconsin law. The trial court discussed the sentencing guidelines, but rejected the contention that a trial court in a county not involved in the study should modify a sentence because the preliminary data from the study indicated that a substantial number of other courts in the state would have given a lesser sentence. The defendant appealed the order. *fn2

I.

The legislature has vested a discretion in the sentencing Judge, which must be exercised on a rational and explainable basis. A sentencing decision is reviewable by this court in the same manner that all discretionary acts are to be reviewed. McCleary v. State, 49 Wis. 2d 263, 276-77, 182 N.W.2d 512 (1971). "here should be evidence in the record that discretion was in fact exercised and the basis of that exercise of discretion should be set forth." State v. Hutnik, 39 Wis. 2d 754, 764, 159 N.W.2d 733 (1968). In State v. Tew, 54 Wis. 2d 361, 367-68, 195 N.W.2d 615 (1972), this court enumerated some of the factors this court has recognized as properly considered in sentencing:

"A past record of criminal offenses, Brown v. State (1971), 52 Wis. 2d 496, 190 N.W.2d 497; a history of undesirable behavior patterns, Triplett v. State (1971), 51 Wis. 2d 549, 553, 187 N.W.2d 318; Deja v. State (1969), 43 Wis. 2d 488, 168 N.W.2d 856; the defendant's personality, character and social traits, Waddell v. State (1964), 24 Wis. 2d 364, 368, 129 N.W.2d 201; Deja v. State, supra, at 493; State v. Morales (1971), 51 Wis. 2d 650, 658, 187 N.W.2d 841; the results of a presentence investigation, State v. Schilz (1971), 50 Wis. 2d 395, 184 N.W.2d 134; State v. Burgher (1972), 53 Wis. 2d 452 at 457, 192 N.W.2d 869; the vicious or aggravated nature of the crime, State v. Wells (1971), 51 Wis. 2d 477, 187 N.W.2d 328; State v. Schilz, supra, at 402; the degree of the defendant's culpability, State v. Schilz, supra, at 402; the defendant's demeanor at trial, State v. Schilz, supra, at 403; the defendant's age, educational background and employment record, State v. Cole (1971), 50 Wis. 2d 449, 184 N.W.2d 75; State v. Schilz, supra, at 402; the defendant's remorse, repentance and cooperativeness, McCleary v. State ...


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