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Sentencing Review

State v. Frederick W. Scheuers, 2011AP1709-CR, District 2, 1/11/12

court of appeals decision (1-judge, not for publication); for Scheuers: Jeffrey Mann; case activity

Sentence of 7 months for criminal damage to property, upheld as proper exercise of discretion.

¶9        Scheuers acknowledges that the trial court “took into account and properly stated on the record what [it] believed was an appropriate response in addressing the needs for protecting the public, the seriousness of the offense, and acknowledged several mitigating factors.”  However, citing to Gallion, Scheuers contends that the court failed to address his rehabilitative needs or the possibility of probation. He argues that the postconviction court made the same error.  We disagree.  While the Gallion court requires the trial court to set forth its sentencing objectives on the record, it recognizes that the objectives in each case vary; rehabilitation of the defendant is just one possible objective.  Gallion, 270 Wis. 2d 535, ¶¶40-41.  Furthermore, while the trial court did not expressly address rehabilitation and probation, its consideration of these objectives is implicit in its statement that it was ordering jail time due to Scheuers’ criminal record, the seriousness of the offense and the danger posed to the community.

¶10      Next, Scheuers complains that the trial court “spent a significant amount of time, during a relatively short sentencing [hearing], focusing on the unrelated felony offense of tampering with food,” Wis. Stat. § 941.325, which requires a showing that, in tampering with the food, the offender intended to cause bodily harm to another.  While the trial court did reference food tampering, it did so to underscore the seriousness of Scheuers’ conduct and its potential impact on his community.  We reject Scheuers’ contention that the trial court improperly sentenced him on the elements of that more serious offense, rather than the misdemeanor offense of criminal damage to property.  The record reflects that the sentencing court, considering the sentencing range for the charged misdemeanor offense, exercised its discretion and arrived at a sentence within the range set by statute.  See Mallon v. State, 49 Wis. 2d 185, 192, 181 N.W.2d 364 (1970).  A sentence within the statutory maximum is cruel and unusual and, thus, an erroneous exercise of discretion only where it is so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.  Id.  While this court may not have arrived at the same sentence, we do not view seven months in jail with work release to be so excessive and disproportionate to the offense so as to shock public sentiment.

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