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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 28, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                         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.   2003CF2554
Appeal No.                                                                          2004AP2730-CR
STATE OF WISCONSIN                                                                                                                                        IN COURT OF APPEALS
                                                                                                                                                          DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
GERALD O. GREEN,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an order  of  the circuit court for
Milwaukee  County:    ELSA  C.  LAMELAS  and  MEL  FLANAGAN,  Judges.
Affirmed.
Before Wedemeyer, P.J., Fine and Kessler, JJ.
¶1                                                                                  PER  CURIAM.      Gerald  O.  Green  appeals  from  a  judgment  of
conviction entered after he pled guilty to one count of possession with intent to




No.   2004AP2730-CR
deliver cocaine, contrary to WIS. STAT.  § 961.16(2)(b)(1)  (2003-04).1    He also
appeals from an order denying his postconviction motion.   Green alleges that the
trial court should have granted his motion for postconviction relief because the
trial  court  ignored  character  evidence,  neglected  treatment  as  a  sentencing
objective,  and  dismissed  the  contents  of  the  presentence  investigation  report.
Because the trial court did not err in denying the motion, we affirm.
BACKGROUND
¶2                                                                                        On April 29, 2003, Green was convicted of one count of possession
with intent to deliver cocaine, a Class F felony, which carries a maximum term of
imprisonment of twelve years and six months.   The complaint alleges that Green
sold drugs to an undercover police officer in a Milwaukee area tavern after a
contact directed the officer to Green.   Green had thirty-one corner cuts of cocaine
on him at the time of the arrest.
¶3                                                                                        Pursuant to the plea agreement, the State recommended two years of
confinement  and  two  years  of  extended  supervision.    The  presentence  writer
recommended a total sentence of six to eight years, including three to four years of
confinement followed by three to four years of extended supervision.   Defense
counsel advocated for probation with twelve months of conditional jail time.   The
trial court imposed a sentence of six years of imprisonment, including two years of
initial confinement followed by four  years  of  extended supervision.    Another
charge was dismissed.
1  All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise
noted.
2




No.   2004AP2730-CR
¶4                                                                                         On October 1, 2004, Green filed a motion for postconviction relief,
alleging that the trial court failed to follow sentencing guidelines.   On October 6,
2004, the trial court denied the motion for postconviction relief, ruling that the
record  reflects  that  the  sentencing  court  properly  considered  mitigating
circumstances  and  sufficiently  explained  its  reasons  for  not  modifying  the
sentence.   Green now appeals.
DISCUSSION
¶5                                                                                         Green contends that the trial court should have granted his motion
for postconviction relief because mitigating factors support a shorter sentence and
the court omitted drug and alcohol treatment as a sentencing objective.   The State
contends that the escalating gravity of Green’s offenses, his character challenges,
and the court’s assessment of Green’s treatment needs warrant the sentence the
trial court imposed on Green.    We conclude that the trial court did not err in
denying Green’s motion for postconviction relief.
¶6                                                                                         The standard of review for sentencing and postconviction relief is
whether the trial court properly exercised its discretion.    When the exercise of
discretion  has  been  demonstrated,  the  trial  court’s  sentencing  decision  is
“‘generally afforded  a  strong presumption  of  reasonability because  the  circuit
court is best suited to consider the relevant factors and demeanor of the convicted
defendant.’”   State v. Gallion, 2004 WI 42, ¶18, 270 Wis. 2d 535, 678 N.W.2d
197 (citation omitted).
¶7                                                                                         A trial court must base its sentence on the minimum amount of
custody or confinement which is consistent with three primary sentencing factors:
(1) the gravity of the offense; (2) the character of the defendant; and (3) the need
to protect the public.   Id., ¶¶23, 59-61.   The weight given each of these factors lies
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No.   2004AP2730-CR
within the trial court’s discretion, and the court may base the sentence on any or
all of them.   See State v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183 (Ct.
App. 1984); see also Gallion, 270 Wis. 2d 535, ¶62.   The trial court must also, “by
reference to the relevant facts and factors, explain how the sentence’s component
parts promote the sentencing objectives.”   Gallion, 270 Wis. 2d 535, ¶46.
¶8                                                                                        Green’s sentence was not excessive, given the gravity of the offense.
The trial court said to Green “that what you were up to was absolutely no good
and a serious violation of the law.”   The trial court noted his criminal history and
said, “[i]nstead of it getting better, instead of the severity of your crimes going
down, as we expect from people as they age, you’re going in the other direction.”
Green  maintains  that  despite  his  criminal  history,  he  had  no  prior  prison
experience.    Yet, even the presentence report stated that:                              “[Green] displays a
blatant disregard for the law and will most likely continue to engage in criminal
activities if he is not shown that his behavior is not and will not be tolerated in the
community.”
¶9                                                                                        The trial court also considered Green’s character when it imposed
the sentence.   He had a criminal record and the severity of his crimes increased
with time.   Green, however, points out the positive aspects of his character, such
as his temporary employment, his child support payments, and his cooperation
with court authorities, which he alleges the trial court overlooked.   While the trial
court may consider other factors, we do not find Green’s argument sufficient to
justify reducing Green’s sentence.
¶10    The trial court also addressed the need to protect the public, stating
that the community should be free of the kind of risk that Green’s actions present,
and  that  confinement  was  necessary  to  protect  the  public  from  further  such
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No.   2004AP2730-CR
criminal  activity.    After  considering  the  three  primary factors,  the  trial  court
imposed a sentence well below the potential maximum sentence.   In addition, the
trial court found Green eligible for the earned release program.   We are satisfied
from our review of the sentencing transcript that the trial court considered the
primary factors in imposing the sentence, and properly exercised its discretion.
State v. Smith, 207 Wis. 2d 258, 282, 558 N.W.2d 379 (1997).
¶11    We are further not persuaded by Green’s argument that the trial
court’s sentence violated the dictates of Gallion by failing to afford enough weight
to mitigating factors and Green’s drug treatment needs.   Gallion did not change
the  principle  that  the  trial  court  has  the  discretion  to  emphasize  any  of  the
sentencing factors as long as it considers all the pertinent factors.   See State v.
Stenzel,  2004 WI App  181,  ¶9,  276 Wis.  2d  224,  688 N.W.2d  20.    Here, the
sentencing transcript reflects that the trial court considered all the pertinent factors,
including  the  mitigating  factors  of  Green’s  remorse  and  treatment  needs.    In
response to this consideration, the trial court ordered Green eligible for the earned
release program.    Accordingly, there is no erroneous exercise of discretion or
violation of Gallion in this record.
¶12    We further are not persuaded by Green’s contention that the trial
court should have given more weight to the presentence investigation report’s
discussion  of  Green’s  treatment  needs.    The  trial  court  is  not  bound  by  the
recommendations  found  in  the  presentence  investigation  report.    See  State v.
Bizzle, 222 Wis. 2d 100, 105-06 n.2, 585 N.W.2d 899 (Ct. App. 1998).   Further, as
the State points out, Green’s reliance on the presentence investigation discussion is
self-defeating because other parts of the report recommended a stiffer sentence
and reflected poorly on Green’s character.    A sentencing court always has an
independent  duty  to  look  beyond  the  recommendation  of  the  parties  and  to
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No.   2004AP2730-CR
consider all relevant factors.   Smith, 207 Wis. 2d at 281-82.   The record reflects
that the trial court complied with this directive.
¶13    We also reject Green’s argument that the trial court should have sent
him to the challenge incarceration program.   The trial court considered the factors
pertinent  to  both  the  challenge  incarceration  program  and  the  earned  release
program.   It determined, based on Green’s treatment needs and age, that the latter
would be the better program for him.   The trial court’s decision was reasonable
based on the pertinent facts, and demonstrates a process of appropriate reasoning;
accordingly, it does not constitute an erroneous exercise of discretion.
¶14    Finally, Green argues that his sentence was excessive.   We cannot
agree.                                                                                   “A sentence well within the limits of the maximum sentence is not so
disproportionate to the offense committed as to shock the public sentiment and
violate the judgment of reasonable people concerning what is right and proper
under the circumstances.”   State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411
(Ct. App. 1983).   Here, the trial court imposed a sentence similar to what the State
recommended.   It was a sentence well below the maximum potential sentence that
Green faced.   Given the nature and gravity of Green’s offense, his criminal history
and character issues, there is no basis for us to conclude that the sentence imposed
constituted an excessive sentence.   It was not so disproportionate to the offense so
as to be shocking to reasonable people.   Based on the foregoing, we affirm the trial
court.
By the Court.—Judgment and order affirmed.
                                                                                         This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                (b)5.
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