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State v. Sally J. Linssen, 2010AP2723-CR, District 2, 9/7/11

court of appeals decision (not recommended for publication); for Linssen: Thomas C. Simon; case activity

Sentence Review – Harsh & Excessive 

Sentence to maximum term of confinement for felony theft and forgery wasn’t harsh and excessive, notwithstanding lack of prior criminal record.

¶23      Linssen has failed to provide clear and convincing evidence that the sentencing court relied on improper factors, see Harris, 326 Wis. 2d 685, ¶¶34-35, 60, or that her sentence was unduly harsh and excessive, see Ocanas, 70 Wis. 2d at 185.

¶24      First, the record demonstrates that the court properly exercised sentencing discretion by relying on a number of relevant and appropriate sentencing factors before imposing a sentence within the statutory range for Linssen’s aggravated property felonies.  The court emphasized what it considered to be the gravity of the offense, the need to punish Linssen, and the societal interest in deterring others.  In considering Linssen’s character and rehabilitative prospects, the court observed that the length of time Linssen engaged in the crimes likely made thievery and forgery a habitual, ingrained part of who she is.  It also found troublesome Linssen’s ability to perpetrate this crime upon two of her closest friends.

¶25      Second, Linssen’s sentence—one within the statutory maximum—was not unduly harsh and excessive.  See Hanson, 48 Wis. 2d at 207.  We understand that Linssen was not sentenced according to the plea agreement, but the sentencing court is under no obligation to do so.  See State v. Williams, 2000 WI 78, ¶2, 236 Wis. 2d 293, 613 N.W.2d 132 (“In Wisconsin, a trial court is not bound by the [S]tate’s sentence recommendation under a plea agreement.”).  As noted, the court considered Linssen’s character and mitigating factors and concluded that the aggravated nature of Linssen’s criminal conduct over five years outweighed whatever mitigating factors there were.  The court explained that, despite Linssen’s lack of criminal record, her actions showed such an immoral character that there is no reason not to believe she would do it again if given the chance.  The court did what it was obligated to do. It considered the crime itself, the community and the criminal.  See Daniels, 117 Wis. 2d at 21.  In so doing, the court exercised exemplary discretion on the record in sentencing Linssen.

Standard of review discussed at some length, court stressing “strong presumption” of reasonableness of sentence, and “wide discretion” invested in sentencing court.

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