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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.
March 7, 2000
                                                                                                                                                              A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                              petition  to  review  an  adverse  decision  by  the
                                                                                        Cornelia G. Clark
                                                                                                                                                              Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                                        Acting Clerk, Court of Appeals
                                                                                                                                                              RULE 809.62.
                                                                                        of Wisconsin
No.                                                                                     99-2313-CR
STATE OF WISCONSIN                                                                      IN COURT OF APPEALS
                                                                                        DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
GERALD J. CLARK,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and  an order  of  the circuit court for
Milwaukee County:   JEFFREY A. KREMERS, Judge.   Affirmed.
¶1                                                                                      FINE, J.    Gerald J. Clark appeals from a judgment, entered on his
guilty plea, convicting  him of  battery as a  habitual criminal, see  WIS.  STAT.
§§ 940.19(1) & 939.62, and from the trial court’s order denying his motion for
postconviction relief.   The trial court sentenced him to the Wisconsin State Prisons
for a term of incarceration not to exceed three years,  “consecutive to anything




No. 99-2313-CR
else.”    Clark  claims  that  the  trial  court  erroneously  exercised  its  sentencing
discretion.   We disagree and affirm.
¶2                                                                                          Sentencing is vested in the trial court’s discretion, and a defendant
who challenges a sentence has the burden to show that it was unreasonable; it is
presumed that the trial court acted reasonably.   See State v. Lechner, 217 Wis. 2d
392, 418, 576 N.W.2d 912, 925 (1998).   The primary factors to be considered in
imposing sentence are the gravity of the offense, the character of the offender, and
the need for the public’s protection.   See Elias v. State, 93 Wis. 2d 278, 284, 286
N.W.2d 559, 561 (1980).   If the trial court exercises its discretion based on the
appropriate factors, its sentence will not be reversed unless 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.”   Ocanas v. State, 70 Wis. 2d 179, 185, 233
N.W.2d  457,  461  (1975).    Additionally,  WIS.  STAT.                                    §  973.15(2)  permits  a
sentencing court to “impose as many sentences as there are convictions and may
provide that any such sentence be concurrent with or consecutive to any other
sentence imposed at the same time or previously.”
¶3                                                                                          Clark’s  battery  conviction  arises  out  of  a  fight  he  had  with  the
mother of his young child.   The woman was seven months pregnant at the time.
The  criminal  complaint  alleged  that  Clark  was  on  probation,  and  that,  as  a
condition of probation, he had been ordered not to go to the woman’s house.   The
complaint charged that when she reminded him of that, he tore up the probation
papers, punched her in the stomach, grabbed her by her neck, and started to choke
her.   She was able to break free from Clark’s hold, and was saved from further
injury when police officers arrived.
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No. 99-2313-CR
¶4                                                                                        Clark denied that he struck the woman in the stomach, but pled
guilty nevertheless.    The victim told the trial court that Clark walked into her
house and they “got to arguing, [and] he kicked me in my stomach and he started
choking me.”   She also told the trial court that Clark had hit her “like two or three
times” in the past.
¶5                                                                                        The defense lawyer explained to the trial court that Clark had pled
guilty because  “he is sorry for his actions.”   She asserted that Clark got angry
when  the  victim  told  Clark  that  he  couldn’t  see  their  two-year-old  son,  and
admitted that he “did slap her, hit her,” but claimed it was “because he was upset.”
Clark’s lawyer noted that Clark’s probation had been revoked, and that  “he is
facing 18 months.”   The lawyer asked the trial court “to consider that the time run
concurrent with that time, based on the fact that it is the same victim.”1
¶6                                                                                        Clark told the trial court that although he “did hit her,” he did not hit
her in the stomach.   He also contended that he had previously prevented another of
the victim’s boyfriends “from jumping on her.”   When the trial court asked the
victim whether it was true that Clark had not hit her in the stomach, she replied:
“No, that’s not true.”
¶7                                                                                        Clark’s  mother  was  also  in  court,  and  told  the  trial  court  that
although Clark might have  “slapped  ’em” he  “never did me wrong, or sass or
curse me every [sic any?] day of his life,” and that “he always [has] a place to
come stay with me.”
1  This contention is neither logically nor legally sound.
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No. 99-2313-CR
¶8                                                                                         The trial court noted that Clark had two prior battery convictions,
and a conviction for disorderly conduct, and that Clark had torn the probation
papers.   All this indicated to the trial court that “whether it was the level of the
beating that she described or whether you hit her, as you describe, the point is that
you react, you don’t respond and when things don’t go the way you want to, you
take  them into  your  own  hand  ...  and  being  violent  is  the  way  you’ve  been
responding.”   The trial court then explained that it believed the victim’s version of
the  battery,  that  Clark’s  prior  experience  with  probation  supervision              “hasn’t
worked,” and that it was imposing the three-year consecutive sentence “to deter”
Clark and to  “punish” him, explaining that any other sentence  “would unduly
depreciate the seriousness of the offense.”
¶9                                                                                         The thrust of Clark’s argument on appeal is, as expressed in his
brief, that the trial court “ignored a wealth of mitigating factors that constitute both
primary and secondary factors and it omitted to expressly reason on the record the
particular weight assigned to each factor.”   We disagree.   The trial court believed
the victim’s version of the battery, considered both the good things that Clark’s
mother had said about him and Clark’s expressions of remorse, and concluded that
the maximum sentence was required to protect society and the victim from Clark’s
inability to control his temper and to conform his conduct to the law.   Although
Clark argues that the trial court gave too much weight to the seriousness of both
this crime and his prior record, “[t]he weight to be given each factor is within the
discretion of the trial court.”    State v. Wickstrom,  118 Wis.  2d  339,  355,  348
N.W.2d 183, 192 (Ct. App. 1984).   Given the seriousness of Clark’s crime, his
prior  record,  and  his  inability  to  comply  with  the  rules  of  probation,  which
undercut his expressions of courtroom remorse, the trial court’s sentence does not
“shock public sentiment and violate the judgment of reasonable people concerning
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No. 99-2313-CR
what is right and proper under the circumstances.”   See Ocanas, 70 Wis. 2d at
185, 233 N.W.2d at 461.   There is nothing in the record that remotely suggests that
the trial court erroneously exercised its discretion in sentencing Clark to prison for
the  indeterminate  three-year  period.    For  the  same  reason,  Clark’s  additional
argument that the trial court erroneously exercised its discretion in denying his
postconviction motion is also without merit.
By the Court.—Judgment and order affirmed.
                                                                                          This  opinion  will  not  be  published.   See  WIS.  STAT.  RULE
809.23 (1)                                                                                (b)4.
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