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State v. Washington

Court of Appeals of Wisconsin, District I

April 9, 2018

State of Wisconsin
Jerrell L. Washington


          Before Brennan, P.J., Brash and Dugan, JJ.

         Summary disposition orders may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis. STAT. RULE 809.23(3).

         Jerrell L. Washington appeals from a judgment of conviction for eleven felonies and from an order denying his postconviction motion for resentencing. The sole issue presented on appeal is whether Washington-who was about seventeen and one-half years old when he committed these crimes-is entitled to relief on grounds that his total sentence was harsh and unconscionable, given Washington's youth. We conclude at conference that this matter is appropriate for summary disposition. See Wis. Stat. Rule 809.21(1) (2015-16).[1] We summarily affirm.


         Washington was charged with eleven felonies for participating in a series of four robberies and assaults in a single night. It is undisputed that at the time the crimes were committed, Washington was under supervision as a juvenile offender, having been adjudicated delinquent for armed robbery with use of force and substantial battery.[2] Although he was originally ordered to be placed at the Lincoln Hills secure juvenile detention facility until his eighteenth birthday, about four months after he turned seventeen he was placed in a residential care facility so that he could transition from living at Lincoln Hills to living in the community. Washington absconded from the residential care facility and shortly thereafter committed the crimes at issue in this appeal.

         Washington's case proceeded to a jury trial. Washington chose not to testify. The jury heard testimony that on four occasions, in different areas of Milwaukee County, a group of young men approached people and demanded their property. The men hit five of the six victims with guns or fists. As a result, at least four of the victims required medical attention at a hospital, and one victim needed surgery to repair an "orbital blowout" in his eye that was caused by being punched and kicked. The young men also stole two of the victims' cars.

         The jury found Washington guilty of all eleven counts, including three counts of armed robbery with use of force; two counts of substantial battery by use of a dangerous weapon; two counts of substantial battery; two counts of robbery with use of force; and two counts of taking and driving a vehicle without the owner's consent, all as a party to a crime. See Wis. Stat. §§ 943.32(2), 940.19(2), 943.32(1)(a), 943.23(2), and 939.05.

         Washington told the presentence investigation writer that he was with the men who committed the crimes but he claimed that he did not participate in those crimes. Instead, he said he fell asleep in the car and woke up when the vehicle he was riding in was chased by police officers, at which point Washington fled the car and ran away before being apprehended nearby.

         At sentencing, both the State and the trial court expressed their disbelief in Washington's explanation of his involvement. The State noted that one victim's blood was found on Washington's shoes, and the trial court pointed out that one victim identified Washington as one of the men who robbed him. When Washington briefly exercised his right of allocution, he accepted some responsibility, stating, "I'm sorry for what happened to the victims. Any mentally or physically problems that they have, my actions take full responsibility. That's it."

         Before pronouncing sentence, the trial court noted that Washington was facing up to one hundred and fifteen years of initial confinement and sixty-nine years of extended supervision. The trial court said that the sentence it was imposing was not "anywhere near those [maximum] numbers" but was a "significant" sentence that was needed for reasons "including protection of the community and deterrence in addition to punishment of the defendant and rehabilitation of the defendant." The trial court imposed a series of consecutive and concurrent sentences totaling twenty-four years of initial confinement and eleven years of extended supervision.

         Represented by postconviction counsel, Washington filed a postconviction motion seeking resentencing on several grounds. The trial court denied the motion in a written order. As relevant to this appeal, the decision states:

[T]he defendant submits that the court's global sentence is unduly harsh and unconscionable because he was a minor when these crimes were committed, citing to a United States Supreme Court case in support, Roper v. Simmons, 543 U.S. 551 (2005). Although the Supreme Court has recognized differences in death penalty cases between juveniles under the age of 18 and adults, this is not a death penalty case, and it does not involve mandatory life without parole dispositions or statutes requiring mandatory life without parole. It is not apposite here. Nevertheless, the defendant asserts that his sentence should be reflective of the growing body of evidence that shows juveniles as having immature brains, not dangerous anti-social personalities. However that may be, the court must base its sentence on the law of this state and consider three major factors when sentencing: (1) the gravity of the offense; (2) the character and rehabilitative needs of the offender; and (3) the need to protect the public. The weight to be given to each of these factors is a determination particularly within the discretion of the trial court. In addition to the factors that the court must consider, the court may also consider the defendant's past record of criminal offenses, history of undesirable behavior patterns, culpability, educational and employment background, remorse and cooperativeness. The defendant's admission that the majority of his friends are either criminally involved or gang members speaks volumes about his character and his undesirable behavior patterns. His character is further revealed by the presentence writer in all of the instances in which he failed to comply with the conditions set by the juvenile court, continued to disobey orders, was sanctioned for committing more offenses, and for lying, showing disrespect, disobeying, and engaging in disruptive contact. His escape from [the residential care facility] ... just before he became directly involved in this string of robberies placed him in absconder status, which demonstrated what the community can expect from him. His belief of innocence and that he was "simply in the wrong place at the wrong time" with respect to these offenses is headspinning, as well as his absurd claim that he was asleep in the car during the commission of the offenses.
The sentencing transcript when reviewed in its entirety shows that the court considered the total defendant in terms of his acts and their effect on the victims and the community as a whole. The nature of the senseless violence in this case was completely aggravating. Given that the defendant could have been sentenced to nearly 200 years in prison, the global sentence imposed was not unduly harsh, excessive or unconscionable given the totality of the ...

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