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State v. Vesper

Court of Appeals of Wisconsin, District II

April 25, 2018

State of Wisconsin, Plaintiff-Respondent,
Robert P. Vesper, Defendant-Appellant.

          APPEAL from a judgment and an order of the circuit court for Waukesha County, No. 2015CF283 MICHAEL J. APRAHAMIAN, Judge. Affirmed.

          Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

          NEUBAUER, C.J.

         ¶1 Robert P. Vesper appeals from a judgment of conviction and an order denying his postconviction motion asserting that the circuit court erred when it imposed a fine and that new factors warranted a modification of his sentence. Because the record supports imposition of the fine and no new factors exist that warrant a sentence modification, we affirm. BACKGROUND

         ¶2 After serving one year in prison for his sixth operating a motor vehicle while under the influence (OWI) offense, Vesper was released in October 2014 to extended supervision. In March 2015, Vesper drove drunk, resulting in charges for a seventh OWI offense, WIS. STAT. § 346.63(1)(a) (2013-14), [1] operating while revoked, WIS. STAT. § 343.44(1)(b), and operating while under a prohibited alcohol concentration (PAC), § 346.63(1)(b).

         ¶3 In May 2015, per agreement, Vesper pled guilty to OWI. In exchange, the State recommended "unspecified prison to be served consecutive to any other sentence" and took no position on a fine. The State also dismissed, but read in, the operating while revoked count. The PAC count was dismissed as a matter of law.

         ¶4 The circuit court accepted the plea and, after hearing from the parties, including a statement read by Vesper, proceeded to sentencing. The court noted that it had read the letters submitted on Vesper's behalf and agreed with them that he is a good person. The court acknowledged some circumstances that were mitigating, such as Vesper's cooperative attitude, the absence of an accident, and his taking responsibility for his actions. But the court also pointed out that, given his prior six convictions, he "should have known better" than to act "selfish[ly]" and "put[] at risk" others who are out on the road. The court found several factors to be aggravating: Vesper's blood-alcohol content (BAC) was 0.139, "well beyond" his legal limit of 0.02; he drove drunk shortly after being released from prison for his sixth OWI conviction; he was still on extended supervision at the time; and he should not have been driving at all without a license. The court stated that Vesper was "an alcoholic" who had "not wrestled with [his] demons well." The court noted that it had considered the sentencing objectives of the gravity of the offense and the character of the defendant, but highlighted the protection of the community in light of Vesper's many OWI convictions and that the last one was recent.

         ¶5 The circuit court then sentenced Vesper to fifty months of initial confinement (out of a maximum of sixty) and five years of extended supervision (the maximum). See Wis. Stat. §§ 346.65(2)(am)6., 939.50(3)(g). It ordered the sentence to run "consecutive to whatever [Vesper is] serving." The court imposed a $1900 fine (out of a maximum of $25, 000). After being informed by counsel, it also ordered seventy-six days of sentence credit.

         ¶6 Two months later, Vesper's extended supervision for his prior (his sixth) OWI conviction was revoked. As a result, he was reconfined for four years and four days.

         ¶7 The next month, the Wisconsin Department of Corrections informed the court that the seventy-six-day sentence credit duplicated a credit that Vesper received for his prior OWI conviction. No one contested this. The court amended the judgment to remove the credit.

         ¶8 In December 2016, Vesper filed a postconviction motion arguing that the circuit court should vacate the fine because the court had not separately explained why it was imposed or determined his ability to pay. He also asserted that the court should reduce his sentence because the length of his reconfinement and the removal of his sentence credit were new sentencing factors. The court denied the motion and Vesper appeals.


         Standard of Review-Sentencing

         ¶9 "The standards governing appellate review of an imposed sentence are well settled. A circuit court exercises its discretion at sentencing, and appellate review is limited to determining if the court's discretion was erroneously exercised." State v. Taylor, 2006 WI 22, ¶17, 289 Wis.2d 34, 710 N.W.2d 466 (footnote omitted); State v. Gallion, 2004 WI 42, ¶¶17-18, 270 Wis.2d 535, 678 N.W.2d 197');">678 N.W.2d 197 (in line with a strong policy of noninterference, we review a sentence only for an erroneous exercise of discretion). If the record "contains evidence that the circuit court properly exercised its discretion, we must affirm." State v. Kuechler, 2003 WI.App. 245, ¶8, 268 Wis.2d 192, 673 N.W.2d 335');">673 N.W.2d 335. "Proper sentencing discretion is demonstrated if the record shows that the court examined the facts and stated its reasons for the sentence imposed, using a demonstrated rational process." Id. (citations omitted).

         ¶10 A circuit court's sentencing decision carries "a strong presumption of reasonability." Taylor, 289 Wis.2d 34, ¶18 (citation omitted). That presumption is warranted because a circuit court stands in the best position to consider the relevant sentencing factors. Id.; State v. Ziller, 2011 WI.App. 164, ¶12, 338 Wis.2d 151, 807 N.W.2d 241. Consequently, the defendant bears the burden of showing that the sentence is unjustified or unreasonable. Ziller, 338 Wis.2d 151, ¶12.

         ¶11 The principal objectives of a sentence include, but are not limited to, protection of the community, punishment of the defendant, deterrence, and rehabilitation. Gallion, 270 Wis.2d 535, ¶40. In order to meet the specified objectives, the court should consider all relevant factors, the primary ones being the gravity of the offense, the character of the defendant, and the need to protect the public. State v. Ziegler, 2006 WI.App. 49, ¶23, 289 Wis.2d 594, 712 N.W.2d 76');">712 N.W.2d 76. Other factors may also be relevant.[2] Id. The court need not address each possible factor, but rather only those relevant to that case. Id. The weight given to each factor is within the sentencing court's broad discretion. Id.

         Imposition of the Fine

         ¶12 Vesper argues that the circuit court erred twice when it imposed the $1900 fine: the court failed to (1) state the reasons for the fine separately from those stated for the confinement and (2) determine his ability to pay. We address each in turn. Lack of a Separate Explanation for the Fine

         ¶13 Vesper asserts that, when a court imposes both imprisonment and a fine, the court must provide a separate explanation for each penalty. Because the circuit court here, at the end of the sentencing colloquy, stated "$1900 fine" with no separate explanation, Vesper argues that the court erroneously exercised its discretion. We disagree. As we held in Kuechler, when the court's sentencing colloquy supports both imprisonment and the fine, no separate explanation of the fine is needed. Kuechler, 268 Wis.2d 192, ¶10.

         ¶14 The circumstances in Kuechler largely mirror those here. At sentencing for a seventh OWI conviction, the court determined that several circumstances were aggravating: high BAC, criminal history that included repeated and recent OWIs, driving while out on bond for another OWI, and driving while having had his license revoked. Id., ¶3. The court noted some circumstances that were mitigating: the defendant was cooperative and remorseful, he had addressed some of his problems, and he had a good employment history. Id., ¶4. The court ultimately concluded that "this is an aggravated case" and that a sentence less than what the local sentencing guidelines suggested would "unduly depreciate the seriousness of this offense as well as not adequately protect society." Id., ¶3. In accordance with the guidelines, the court imposed both prison time and a $6800 fine. Id., ¶5 & n.2. The court did not otherwise explain why it imposed the fine.

         ¶15 On appeal, the defendant argued that the court's selection of the fine per the guidelines was statutorily and constitutionally impermissible and reflected a "prohibited mechanistic approach." Id., ¶¶9-13. We rejected this argument. Although the statute authorizing the guidelines refers to PAC, not OWI, offenses, a circuit court is permitted to apply them in OWI cases provided that it does not do so "robotically" and as the sole basis for a sentence. Id., ¶10; see Wis. Stat. § 346.65(2m)(a) (guidelines apply to PAC convictions);[3] see also State v. Jorgensen, 2003 WI 105, ¶27, 264 Wis.2d 157, 667 N.W.2d 318 (circuit court may refer to the guidelines for OWI convictions, as OWI and PAC offenses are similar and the sentencing factors for one are relevant to the other). We held that the court's proper "sentencing colloquy applie[d] to both the prison time imposed and to the fine, " and a court need not "give separate reasons for imposing jail or prison time than it gives for imposing a fine." Kuechler, 268 Wis.2d 192, ¶10.

         16 Here, as in Kuechler, the circuit court discussed factors both aggravating (high BAC of 0.139, repeat offender, and driving while on extended supervision and without a license) and mitigating (cooperative and remorseful attitude and taking responsibility for his actions), but emphasized the aggravating. Throughout its colloquy, the court explicitly and appropriately considered protection of the community (Vesper continued to put others at risk), the gravity of the offense (repeated offenses even when prohibited from driving), and the character and rehabilitation of Vesper (despite being a good person, he has not dealt well with his serious alcohol problem).

         ¶17 Although not explicitly citing to the local sentencing guidelines, the circuit court applied the analysis they encompass. See Wis. Third Judicial Dist. OWI/PAC Sentencing Guidelines, Seventh-Ninth Offense (Third Judicial Dist. OWI/PAC Sentencing Guidelines Comm. 2015). For a seventh offense in an aggravated case and a BAC between 0.08 and 0.169, the guidelines recommend a fine of $1900, exactly what was imposed here. Id.[4] They also recommend initial confinement of forty-two to fifty-four months (fifty were imposed) and license revocation and ignition interlock device for thirty-six months, all of which match Vesper's sentence.[5] Id. It was appropriate for the court to apply the guidelines' analysis, see Kuechler, 268 Wis.2d 192, ¶10, which supports the terms of Vesper's sentence, as it integrates sentence options, ranges, and the connection between the penalties of imprisonment and a fine. See State v. Ramel, 2007 WI.App. 271, ¶24, 306 Wis.2d 654, 743 N.W.2d 502');">743 N.W.2d 502.

         ¶18 Whether the court explicitly applied the guidelines is of no matter. It is "well settled" that the discretionary process of reasoning "must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards." Taylor, 289 Wis.2d 34, ¶¶17, 30 (citing McCleary v. State, 49 Wis.2d 263, 277, 182 N.W.2d 512');">182 N.W.2d 512 (1971)). When a court must select an amount between $0 and $25, 000, the chances that the court will coincidentally choose one particular amount (i.e., $1900) are virtually nil. As a reviewing court, we are usually satisfied with drawing inferences from a record that are reasonable, and sometimes a record will allow us to draw inferences that are downright compelling, but rare is the record, such as this one, where we can draw an inference that is nearly a certainty. However, even without explicit or implicit reliance on the sentencing guidelines, the court's colloquy appropriately discussed the sentencing objectives and relevant factors, all of which squarely supported the imposition of the $1900 fine which, just as is the case with the applicable guideline, is both reasonable and justified.

         ¶19 Based on the foregoing, we conclude that the court's sentencing colloquy sufficiently supported the imposition of the fine and there was no need for a separate explanation. In other words, the colloquy applied equally to both the term of imprisonment and the fine.

         ¶20 Vesper relies on Ramel, asserting that it requires a separate, stand- alone explanation of the fine. In that case, after pleading guilty to third-degree sexual assault, the defendant was sentenced to confinement, extended supervision, and a $1000 fine. The circuit court made no findings with regard to the defendant's ability to pay a fine and offered no explanation as to why it imposed one. The Ramel court observed that, without knowing a defendant's ability to pay a fine, it is difficult to determine whether the fine can help meet the sentencing objectives. Ramel, 306 Wis.2d 654, ¶¶13-14. After searching the record for information showing an ability to pay and for "some explanation" to support imposition of the fine, the Ramel court found none and, therefore, vacated the fine. Id., ¶¶9, 14, 26-27.

         ¶21 Ramel is unavailing for Vesper. Key to Ramel was the lack of any information that the defendant could pay a fine, "regardless of the amount." Id., ¶¶26-27. Stuck in the position of a reviewing court with nothing to review, the Ramel court made the noncontroversial point that the record must contain "some" explanation-and not necessarily a separate ...

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