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Sentencing Discretion

State v. Scott P. Wojcik, 2011AP2568-CR, District 2, 3/21/12

court of appeals decision (1-judge, not for publication); for Wojcik: Christopher Lee Wiesmueller; case activity

90-day jail sentence for OWI-2nd (minimum 0f 5 days, maximum of 6 months) upheld as proper exercise of discretion. Trial court considered as aggravators recentness of prior OWI conviction (2008) and his seeming level of impairment (stumbled on getting out of car); and stressed deterrent purpose of sentence. Test recited:

¶5        There is a consistent and strong policy against interference with the circuit court’s sentencing discretion.  State v. Davis, 2005 WI App 98, ¶12, 281 Wis. 2d 118, 698 N.W.2d 823.  The circuit court is in the best position to consider the relevant sentencing factors and demeanor of the defendant.  Id.  We presume the circuit court acted reasonably, and the burden is on the appellant to show that the sentence was unreasonable or unjustifiable.  Id.  A sentence is reviewed for an erroneous exercise of discretion.  Id.  A circuit court erroneously exercises its discretion when it relies on clearly irrelevant or improper factors.  State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197.

¶6        Circuit courts are required to specify the objectives of the sentence on the record, which include but are not limited to:  the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others.  Id., ¶40.  A circuit court should also indicate the factors it relied on in reaching a sentence.  Id., ¶43.  The primary sentencing factors are the gravity of the offense, the character of the defendant, and the need to protect the public.  Davis, 281 Wis. 2d 118, ¶13.

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