Abuse of Discretion – Sentencing

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Angela L. Staten

Case No.: 2018AP1506-CR

Officials: Kessler, P.J., Brennan and Brash, JJ.

Focus: Abuse of Discretion – Sentencing

Angela L. Staten appeals from a judgment of conviction and an order denying her postconviction motion for sentencing relief. She seeks a new sentencing hearing. Staten and two codefendants—her sisters Sharon and Tawanda—were charged in connection with a tax fraud scheme carried out over a period of three years that cost the State of Wisconsin $234,390. Pursuant to a plea agreement, Staten pleaded guilty to one felony count of theft by false representation and four felony counts of identity theft, each with a felony repeater enhancer. Thirty-five additional felony counts were dismissed and read in. She was the first of the three codefendants sentenced. She seeks resentencing on two grounds: first, that her sentence was unduly harsh because it is longer than the sentences the trial court later imposed on her codefendants; and second, that the trial court erroneously exercised its discretion by failing to articulate a basis for imposing prison time rather than probation on counts four and five.

We conclude that Staten is not entitled to resentencing because she has not met her burden to show that the trial court “based its determination upon factors not proper in or irrelevant to sentencing, or was influenced by motives inconsistent with impartiality.” See Jung v. State, 32 Wis. 2d 541, 548, 145 N.W.2d 684 (1966). As to her first claim, although the codefendants all participated in the same scheme, they were not similarly situated for sentencing purposes: Staten’s codefendants had fewer prior convictions, fewer open cases, pled guilty to fewer counts, had fewer dismissed counts read in, and had only misdemeanor repeater enhancers rather than felony repeater enhancers. Staten has therefore not met her burden to show that the disparity made her sentence unduly harsh.

As to her second claim of error, it is Staten’s burden to show that in imposing prison terms rather than probation on two counts, the trial court “fail[ed] to state the relevant and material factors that influenced its decision, relie[d] on immaterial factors, or [gave] too much weight to one factor in the face of other contravening factors.” See State v. Steele, 2001 WI App 160, ¶10, 246 Wis. 2d 744, 632 N.W.2d 112. The record shows that the trial court stated briefly but clearly “the relevant and material factors that influenced its decision,” see id., namely that probation on count four was not proper because the court did not think Staten would benefit from probation “because of the consecutive sentences as to the [extended supervision],” and probation on count five was not appropriate because “she’s on [extended supervision]” and “she’ll have a sufficient amount of [extended supervision] time.” We therefore affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.