Opinion
Case No. 97-0553.
Opinion Released: April 30, 1998 Opinion Filed: April 30, 1998 This opinion will not be published. See Rule 809.23(1)(b)5., Stats.
APPEAL from an order of the circuit court for Dane County: GEORGE NORTHRUP, Judge. Affirmed.
Eich, C.J., Dykman, P.J., and Roggensack, J.
Osvaldo R. Durruthy appeals from an order denying his motion for sentence modification. We affirm.
Durruthy pled no contest to several crimes, including possession of cocaine with intent to deliver, second offense, and while possessing a dangerous weapon. The underlying crime carried a potential penalty of thirty years in prison. The court sentenced Durruthy to twenty years.
On appeal, Durruthy argues that he should be resentenced due to the holding in State v. Peete , 185 Wis.2d 4, 517 N.W.2d 149 (1994), which required that a nexus be shown between the underlying offense and the possession of the weapon. He argues that such a nexus could not be shown in his case, and therefore the weapon penalty enhancer is inapplicable.
We reject the argument because the sentencing court sentenced Durruthy to less than the maximum amount on the underlying charge, and therefore the enhancer was not used in setting his sentence. See State v. Harris , 119 Wis.2d 612, 350 N.W.2d 633 (1984) (holding that enhancer penalties are not available unless maximum sentence is imposed). Therefore, even if we agreed that the enhancer is inapplicable, there would be no grounds to change his sentence. Furthermore, the sentence on this count is being served concurrently with other sentences which would not be affected by this argument.
By the Court. — Order affirmed.