Staten and her two co-defendants engaged in a course of tax fraud that netted them over $200,000 in tax refunds that didn’t belong to them. Staten, the first of the three sentenced, argues that her sentence was unduly harsh compared to her co-defendants’ sentences and that the sentencing court erroneously exercised its discretion in changing its mind at the very end and ordering prison rather than probation on two of the counts. The court of appeals rejects her challenges.
¶2 We conclude that Staten is not entitled to resentencing because she has not met her burden to show that the trial court “based its determination upon factors not proper in or irrelevant to sentencing, or was influenced by motives inconsistent with impartiality.” See Jung v. State, 32 Wis. 2d 541, 548, 145 N.W.2d 684 (1966). As to her first claim, although the codefendants all participated in the same scheme, they were not similarly situated for sentencing purposes: Staten’s codefendants had fewer prior convictions, fewer open cases, pled guilty to fewer counts, had fewer dismissed counts read in, and had only misdemeanor repeater enhancers rather than felony repeater enhancers. Staten has therefore not met her burden to show that the disparity made her sentence unduly harsh. As to her second claim of error, it is Staten’s burden to show that in imposing prison terms rather than probation on two counts, the trial court “fail[ed] to state the relevant and material factors that influenced its decision, relie[d] on immaterial factors, or [gave] too much weight to one factor in the face of other contravening factors.” See State v. Steele, 2001 WI App 160, ¶10, 246 Wis. 2d 744, 632 N.W.2d 112. The record shows that the trial court stated briefly but clearly “the relevant and material factors that influenced its decision,”see id., namely that probation on count four was not proper because the court did not think Staten would benefit from probation “because of the consecutive sentences as to the [extended supervision],” and probation on count five was not appropriate because “she’s on [extended supervision]” and “she’ll have a sufficient amount of [extended supervision] time.” We therefore affirm.