from a judgment and an order of the circuit court for
Waukesha County, No. 2015CF283 MICHAEL J. APRAHAMIAN, Judge.
Neubauer, C.J., Gundrum and Hagedorn, JJ.
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.
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),  operating while revoked, WIS. STAT. §
343.44(1)(b), and operating while under a prohibited alcohol
concentration (PAC), § 346.63(1)(b).
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.
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.
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.
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.
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.
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
"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).
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,
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. 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.
of the Fine
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
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.
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.
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); 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.
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).
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. 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. 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.
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.
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.
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.
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 ...