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Sentencing – Discretion

State v. Dustin M. Przybylski, 2011AP1-CR, District 2, 6/1/11

court of appeals decision (1-judge, not for publication); for Przybylski: Michael S. Holzman; case activity

OWI sentence consecutive to unrelated 15-year sentence upheld, despite joint recommendations of concurrent time, against argument it was fashioned mechanistically rather than as exercise of discretion, State v. Martin, 100 Wis. 2d 326, 302 N.W.2d 58 (Ct. App. 1981).

¶6        Przybylski likens his case to Martin.  There, the circuit court stated that it would never grant straight probation to a person convicted of a particular offense.  Martin, 100 Wis. 2d at 327.  Probation was statutorily available as a sentencing alternative for that offense; however, the court “expressly refused to consider” it as a possibly appropriate alternative.  Id. at 327-28.  This court held that such a mechanistic approach to sentencing was not an exercise of sentencing discretion, and we remanded for resentencing.  Id.at 327.

¶7        Here, we hold that the circuit court did not adopt a mechanistic approach to sentencing in contravention of Martin.  The court invited argument on the issue and then weighed the relevant facts in determining an appropriate sentence.  In expressing its concerns regarding a concurrent sentence, the circuit court referenced the facts of this specific case, including the substances in the defendant’s system while he was driving and defendant’s conviction on another operating while intoxicated charge three months earlier. The court stated, “I can’t come up with one reason, other than the fact he’s already in prison for 15 years, one reason that I’d go minimum and that I’d make it concurrent.  There’s absolutely, positively, nothing in this record that would support that at all.”  The circuit court’s comments in this case reflect its consideration of Przybylski’s record.  Unlike the Martin sentencing court, the circuit court in this case did not say that concurrent time would not be considered, but merely focused the attorneys’ attention on what it believed was an important sentencing issue in light of the parties’ recommendation.

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