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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                       This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 8, 2009
A party may file with the Supreme Court a
David R. Schanker                                                                                                                                      petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                              Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                       and RULE 809.62.
                                                                                                                                                       Cir. Ct. No.   2005CF6531
Appeal No.                                                                            2009AP375-CR
STATE OF WISCONSIN                                                                                                                                     IN COURT OF APPEALS
                                                                                                                                                       DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DARRELL MARQUIS BROWN,
DEFENDANT-APPELLANT.
APPEAL from orders of the circuit court for Milwaukee County:
DANIEL L. KONKOL, Judge.   Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1                                                                                    PER CURIAM.      Darrell M. Brown appeals from a reconfinement
order entered after the revocation of  extended supervision and from an order
denying his motion for postconviction relief.   Brown argues that the circuit court
erroneously exercised its discretion by failing to consider his background and




No.   2009AP375-CR
other mitigating circumstances, and by using a preconceived sentencing formula to
determine the term of reconfinement.    Further, he argues that the circuit court
erred by not clarifying the basis of its ruling upon challenge by postconviction
motion.   We conclude that the circuit court properly exercised its discretion by
considering  the  relevant  sentencing  factors  when  determining  the  length  of
reconfinement, and that it was not required to restate its reasoning in its order
denying the motion for postconviction relief.   Therefore, we affirm the orders of
the circuit court.
¶2                                                                                        On November 16, 2005, Brown entered a school and took a purse
that belonged to a teacher.    Upon finding two different car keys in the purse,
Brown located the teacher’s car in the school parking lot and took it without her
consent.   Brown subsequently picked up his friend, and they both went to the
teacher’s  house.    When  they  arrived  at  the  teacher’s  house,  they  discovered
someone was home, but they nevertheless took the teacher’s minivan from the
residence.
¶3                                                                                        On January 13, 2006, Brown pled guilty to two counts of operating a
vehicle without the owner’s consent contrary to WIS. STAT. § 943.23(2) (2005-
06).1   The circuit court imposed a sentence on each count of one year of initial
confinement and two years of extended supervision, to be served consecutively.
In November 2007, Brown was released on extended supervision.
¶4                                                                                        After Brown was released, a series of events occurred that led to his
sentencing after revocation.   Less than a month after being released, he allegedly
1  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.
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No.   2009AP375-CR
took bikes from a residential area.    Less than a month after the bike incident,
Brown was in custody again for being on the property of an elementary school
without a chaperone, which was in violation of the rules of his release.   He was
given an alternative to revocation and was released back into the community in
February 2008.   Less than a month after being released, Brown went into a church
and stole speakers and a microphone stand.   The police caught him and placed him
in a squad car.   Brown got out of the squad car and fled.   He was later found in a
garage and taken into custody.
¶5                                                                                       Brown waived the hearing on revocation and proceeded to a hearing
on reconfinement.   There were four years, two days available for reconfinement.
The Department of Corrections (DOC) recommended fourteen months and twelve
days;  Brown  concurred  with  this  recommendation.    The  State  recommended
eighteen months.   The circuit court ordered twenty-four months of reconfinement,
which was the same length of time Brown had served on initial confinement.
¶6                                                                                       Brown  filed  a  motion  for  postconviction  relief  challenging  the
court’s exercise of discretion in selecting the term of reconfinement.   Specifically,
Brown argued that the court did not properly consider his character, background
and mitigating factors because it erroneously applied a preconceived sentencing
formula that ignored the appropriate sentencing factors.   The circuit court denied
the motion, concluding that it had properly considered and applied the appropriate
sentencing factors during the reconfinement hearing.   This appeal follows.
DISCUSSION
¶7                                                                                       This case is before us on a reconfinement order following revocation
of Brown’s extended supervision; the original judgment of conviction and the
revocation decision are therefore not at issue.   See State v. Drake, 184 Wis. 2d
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No.   2009AP375-CR
396,                                                                                      399-400,                                                                        515  N.W.2d                                                  923   (Ct.  App.   1994);  see  also  WIS.  STAT.
§ 302.113(9)(g) (review of revocation only available through certiorari).   Rather,
we consider whether the circuit court erroneously exercised its discretion when it
ordered Brown reconfined for twenty-four months.   See State v. Brown, 2006 WI
131, ¶20, 298 Wis. 2d 37, 725 N.W.2d 262 (“A reconfinement hearing is certainly
akin  to  a  sentencing  hearing  and,  therefore,  both  are  reviewed  on  appeal  to
determine if there has been an erroneous exercise of discretion.”).
¶8                                                                                        On  appeal,  we  will  not  reverse  the  sentence  as  long  as  the
reconfinement court considered the appropriate factors and imposed a sentence
that was within the statutory limits, unless the sentence imposed “is so excessive
and unusual and so disproportionate to the offense committed as to shock public
sentiment.”2     Id.,                                                                     ¶22                                                                             (citation  and  two  sets  of  quotation  marks  omitted).
Appropriate sentencing factors to consider in making the reconfinement decision
include the nature and severity of the original offense, the defendant’s institutional
conduct record, the amount of incarceration necessary to protect the public from
the risk of further criminal activity and the nature of the violation of terms and
conditions  during  extended  supervision.    Id.,                                        ¶34.    The  original  sentencing
transcript is also an important source of information that can be considered.   See
id.,                                                                                      ¶38.    When pronouncing sentence,  “it is appropriate for a circuit court to
identify the general objectives of greatest importance, and describe the factors and
circumstances relevant to those objectives.”   Id., ¶39.   The amount of explanation
necessary will vary from case to case; not all factors need be discussed on the
record.  See id., ¶¶37, 39.
2  On appeal, Brown presents no argument that the period of reconfinement imposed
shocks the public sentiment.
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No.   2009AP375-CR
¶9                                                                                       Brown argues that the circuit court did not properly exercise its
discretion  during  the  sentencing after  revocation because  it failed to consider
Brown’s background  and  mitigating factors,  such as the  circumstances of  his
upbringing  and  the  current  support  of  his  family,  and  because  it  applied  a
preconceived sentencing formula when determining the term of reconfinement.
We are not persuaded.
¶10    As Brown acknowledges, the circuit court “spoke on the record at
some length concerning the documents it had received and the arguments it had
heard, the legal standards for its decision, the facts as it understood them, and
some of the inferences it drew from those facts.”   We reject Brown’s assertion that
the circuit court failed to consider mitigating factors and his background; the
record indicates the circuit court considered all the relevant information provided,
including the court memo prepared by the DOC, the court file and the transcript of
the original sentencing hearing.   The circuit court was not obligated to examine
each factor on the record, including the circumstances of Brown’s upbringing and
the current support of his family.    See id.,  ¶37  (The circuit court must apply
relevant factors and “provide, on the record, a reasoned basis for a reconfinement
decision.   These factors are not a mandatory checklist, and we do not hold that a
circuit court must examine each factor on the record in every case.”).
¶11    Next, we consider Brown’s assertion that the circuit court employed
a preconceived sentencing formula and failed to take into account the specific
circumstances of his case.   See State v. Ogden, 199 Wis. 2d 566, 571, 544 N.W.2d
574 (1996) (“[O]ne ‘unreasonable and unjustifiable basis’ for a sentence is a trial
judge’s employment of a preconceived policy of sentencing that is  ‘closed to
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No.   2009AP375-CR
individual mitigating factors.’”)  (citation omitted).    Specifically, Brown asserts
that  after  the  circuit  court  considered  the  appropriate  sentencing  factors,3  the
circuit  court                                                                                         “reverted  to  a  simple  formula  to  determine  the  length  of
reconfinement.”   Brown takes issue with the following statement by the circuit
court:
[Brown is] going to need to change [his ways].   The first
two years of initial confinement didn’t do the trick.   I think
at                                                                                                     this                                                                   point[,]   although    I    have    heard    the
recommendation[s] for less than that, I think he has to do
that  all  over  again  so  he  understands  this  is  something
serious, he’s got to stop the criminal conduct.   That still
will  leave  him  even  more  opportunity  for  extended
supervision but knowing over time if he’s going to do this
[criminal activity] he’s going to go back for  [the] same
amount of time.
¶12    We are unconvinced that this statement is evidence that the circuit
court was applying a preconceived policy of making all defendants repeat the time
already served if their extended supervision was revoked.   The circuit court did not
say it had a policy of always imposing the same amount of time on reconfinement
that was served on initial confinement, and it did not ignore Brown’s particular
circumstances in order to entertain general predispositions.    Rather, the circuit
court carefully considered the appropriate sentencing factors and gave a reasoned
3   For instance, the circuit court noted the nature and severity of the original offense by
stating that  this  offense was                                                                        “far  more  serious  than  most  of  the  take  and drive  offenses,
particularly the kind where someone just comes across a car on the street.”   It also examined
Brown’s violations of the terms and conditions of extended supervision.    The circuit court
referred to Brown’s conduct as “kind of the ultimate failure on extended supervision” because he
continually failed to comply with what was required of him and committed new offenses.   It also
noted that Brown did not have any employment, but acknowledged that Brown had tested
negative for drug use.   Lastly, the circuit court considered the original sentencing transcript and
noted the original sentencing court’s concern for the protection of the public.   Subsequently, the
circuit court stated that Brown had only been out a short period of time and had shown he was not
going to comply with supervision, so the community needed to be protected from him.
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No.   2009AP375-CR
and reasonable explanation for the reconfinement sentence.    See  McCleary v.
State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971).   We conclude the circuit
court did not erroneously exercise its discretion.
¶13    Brown also takes issue with the fact that the circuit court did not
explain its deviation from the recommendations made by the DOC (with which
Brown concurred).   We disagree that such an explanation was necessary.   The
circuit  court  owes  no  deference  to  the  DOC  when  determining  the  term  for
reconfinement.                                                                           See  Brown,   298  Wis.   2d   37,   ¶¶24-25   (“[T]he  DOC’s
recommendation may be helpful and should be considered by a circuit court, but
the  court is not required  to follow  the  DOC’s sentencing recommendation in
making a reconfinement decision” and the circuit court is not required to explain
its reasons for not following the recommendation “as long as proper sentencing
discretion is exercised.”).
¶14    Finally, Brown argues that the circuit court’s two-sentence written
order denying his postconviction motion was insufficient.   He argues that the trial
court “should have taken the additional opportunity to explain its sentence upon
postconviction challenge.”   While it is true that a circuit court has an additional
opportunity to explain its sentence when challenged by postconviction motion, see
State v. Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct. App. 1994), it is not
required to do so.   Here, the circuit court concluded that its original sentencing on
revocation was a proper exercise of discretion; it was not required to restate its
reasons for imposing the sentence.
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No.   2009AP375-CR
By the Court.—Orders affirmed.
                                 This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                        (b)5.
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