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COA rejects erroneous exercise of discretion claim and affirms sentencing court’s imposition of prison sentence instead of probation

State v. Zackery J. Olson, 2023AP369-CR, 5/22/24, District II (1-judge opinion, not eligible for publication); case activity

Olson’s erroneous exercise of discretion claim regarding the court’s decision to impose a prison sentence instead of probation fares about as well as you would expect. The court of appeals reviews and details the record supporting the court’s decision and affirms because Olson failed to meet his burden to prove the sentencing court erred.

Olson went to trial and was convicted of two counts of violating a harassment injunction and was sentenced as a repeater, which subjected him to two years in prison on each out. The state argued for two years total initial confinement. Olson asked for probation and specifically asked the court to not consider pending charges he disputed. As relevant to Olson’s appeal, the court considered Olson’s allocution, in which he alleged that he was involved in a years-long sexual affair with one of the victims and claimed that she lied about the affair to keep the information from her husband. Based on the jury’s verdicts and the victims’ statements, the court found that Olson’s “lack of remorse, your deflection, and blame of the victims is, frankly, despicable, sir. And punishment is what is in order.” Op., ¶13.

On appeal, Olson argued the court erred by considering his alleged lack of remorse, which Olson claimed was actually based on his exercise of his right to a trial. The court of appeals disagrees: especially in light of Olson’s “bizarre” and “sexually motivated” conduct, including his statement at sentencing, a defendant’s lack of remorse is a proper secondary sentencing factor. Op., ¶18.

With regard to Olson’s other claim that the court erred by considering pending charges, the court disagrees for two reasons. First, the circuit court properly cited caselaw authorizing a sentencing court to consider pending charges, including State v. Von Loh, State v. Frey, and State v. Leitner. Second, the circuit court explained that it did not “need to even consider … the pending charges … to know that you have a disturbing and vile obsession with [the victim].” Op., ¶10.


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