The circuit court didn’t erroneously exercise its sentencing discretion by exceeding the OWI guidelines when sentencing Haynes for OWI 3rd after his probation for the offense was revoked.
Haynes was placed on probation for an OWI that involved striking a light pole and driving away from the scene. He had a BAC of .204. (¶¶2-4). His behavior on probation included driving while intoxicated, getting in another accident similar to those in the present case, being terminated from treatment, and catching charges for burglaries and thefts. (¶9).
The sentencing guidelines called for 110 to 140 days in jail; DOC recommended six to nine months. (¶7). The judge imposed the maximum 12 months. (¶10). Under the circumstances, the court didn’t erroneously exercise its discretion by deviating from guidelines that are, after all, non-binding, State v. Smart, 2002 WI App 240, ¶15, 257 Wis. 2d 713, 652 N.W.2d 429:
¶15 …. Contrary to Haynes’ claims, the circuit court did not pay only “lip service” to the guidelines. Rather, the court expressly acknowledged the guidelines but determined the guidelines were not appropriate to follow in this case because Haynes “is not a normal offender” and “[t]his is not a normal case.” The court then proceeded to explain why it believed a maximum jail sentence—and thereby a deviation from the guidelines—was warranted, … including that Haynes “failed miserably on probation” when provided “an opportunity to rehabilitate himself and do minimal jail time.” “[A circuit] court may determine that conduct following the first sentencing hearing casts a defendant in a very different light.” [State v.] Reynolds, [2002 WI App 15,] 249 Wis. 2d 798, ¶13[, 643 N.W.2d 165]. Here, Haynes’ conduct while on probation illuminated to the circuit court that, when sentencing Haynes on the third-offense OWI charge following revocation, the maximum term of confinement was necessary to protect the public.