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Lengthy imposed and stayed sentence wasn’t unduly harsh or excessive

State v. Britton D. McKenzie, 2014AP314-CR, District 4, 8/28/14 (1-judge; ineligible for publication); case activity

Consecutive jail sentences totaling 24 months were not unduly harsh and excessive.

McKenzie was convicted of one count of lewd and lascivious conduct and three counts of misdemeanor bail jumping, and given six-month consecutive sentences on each count. The court stayed the sentences and placed McKenzie on probation. (¶¶2-6). After his probation was revoked McKenzie filed a pro se motion arguing his sentences were harsh and excessive and should be modified based on the new factor that his health has deteriorated since sentencing. (¶¶8-11).

The first problem with McKenzie’s appeal is that the 24-month sentence was a joint recommendation of the parties. (¶¶3, 6). “A defendant ‘cannot agree to the recommendation of an imposed and stayed sentence, violate probation, and then take the position on appeal that the sentence was excessive.’ State v. Magnuson, 220 Wis. 2d 468, 472, 583 N.W.2d 843 (Ct. App. 1998).” (¶16). Aside from that, McKenzie hasn’t met the harsh and excessive standard because the sentence was well within the maximum penalties he faced and the circuit court didn’t erroneously exercise its discretion in imposing it. (¶¶17-19). Finally, the court declines to address the new factor claim because McKenzie’s brief didn’t sufficiently argue the point, even under the liberal treatment given pro se pleadings. (¶12 n.3).

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