In Brown v. State, 52 Wis. 2d 496, 190 N.W.2d 497 (1971), the facts were very similar to those in McCleary: the defendant was charged with forgery and was sentenced to ten years' imprisonment.Summary of this case from State v. Wolfe
No. State 97.
Argued September 15, 1971. —
Decided October 8, 1971.
ERRORS to review a judgment and an order of the circuit court for Milwaukee county: HUGH R. O'CONNELL, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by Alan A. Olshan of Milwaukee.
For the defendant in error the cause was argued by George L. Frederick, assistant attorney general, with whom on the brief were Robert W. Warren, attorney general, William A. Platz, assistant attorney general, and E. Michael McCann, district attorney of Milwaukee county.
On December 21, 1968, the defendant, Gene Edward Brown, uttered a forged check in the amount of $187.23. He was charged with violating sec. 943.38(2), Stats.; the defendant pleaded guilty to the charge. A violation of this subsection may be punished by a fine of not more than $5,000, or by imprisonment for not more than ten years, or by both fine and imprisonment.
The testimony of a police officer established that a man by the name of "Jazz" (called "Jug" by defendant) had approached defendant at a bar and asked him to "lay down" (utter) a check which had been stolen from the N.J. Brown Lumber Company. The proceeds of the check were to be split between "Jazz" and the defendant. Brown endorsed the check, using his own name and address and cashed it at a National Food Store.
Five other forgeries in which the defendant was involved were read into the record. They included the uttering of two checks on March 23, 1969, in the amounts of $133.21 and $103.36. These checks had been stolen from Sound Investment Company. The other three checks had been taken in a burglary of the residence of Hazel V. Riebe in Milwaukee. They were cashed on May 23, 1969, by the defendant, who received the amounts of $25, $76.04 and $78.73 for the various checks.
Defendant testified that he had cashed the checks because he was out of a job and needed money at the time and "seen an easy way out." On cross-examination he denied having anything to do with stealing the checks, or making them out, stating that all he did was to cash them and split the proceeds with the people who had given him the checks. The trial court found defendant guilty and ordered a presentence investigation.
A hearing on sentence was held on January 2, 1970. The trial judge examined the presentence investigation report which revealed defendant had a long record, dating back to October, 1957. Many of the charges were for traffic offenses, drunkenness and other minor violations. The court noted however:
"In looking over the defendant's prior record and ignoring the traffic offenses and even ignoring the city cases, I find myself with a total of about seven offenses. I also find a total of seven appearances, excluding the present offense in court, in various courts in 1969, alone.
"In the portion marked `summary and recommendation' on Page 5, I note the following entry. The defendant has a prior probation record and was formerly on probation to the United States probation department for forgery of a government check [in 1962]. He has been on probation to this department for the offense of sexual intercourse with a child; and while on probation married the girl involved in the offense. They now have five sons, and he claims they're getting along fine."
The presentence investigation report recommended probation. The trial court, considering Brown's prior record, at first expressed its reluctance to release defendant on probation. Both the district attorney and defense counsel suggested that probation might be appropriate if a stiff sentence was imposed and stayed — to "be held over his head" in case of probation violation.
Following these recommendations, the court sentenced the defendant to an indeterminate term of ten years. This sentence was stayed and the defendant was placed on probation for five years, the first year to be served in the Milwaukee county jail under the Huber Law. The judge expressly made abstinence from intoxicating liquors a condition of probation. The defendant stated that he understood and accepted the sentence and the conditions of probation.
On March 11, 1970, a probation revocation hearing was held. The probation officer testified that defendant had returned to the Huber quarters drunk on several occasions and that he had attempted to bring a bag containing wine and liquor into the jail after returning one evening. It was also shown that defendant had been dismissed from his job prior to sentencing and that, instead of going to work, he had gone out looking for a job. Noting that the jailers had been very patient with the defendant, the judge ordered that probation be revoked and that the original sentence of ten years be reinstated.
A hearing was held on August 29, 1970, on defendant's motion for reduction of sentence. At that hearing counsel stressed the fact that the probation was revoked, not for the commission of any crimes, but because defendant had attempted to bring liquor into the jail and had been drunk several times while serving under the Huber Law. The request for modification of sentence was denied.
Writs of error were issued to review the judgment of conviction and the order denying a modification of the sentence.
The sole issue presented for review is whether the imposition of the maximum sentence of ten years was an abuse of discretion under the facts of this case.
This case is similar to McCleary v. State (1971), 49 Wis.2d 263, 182 N.W.2d 512. The crime in both cases was forgery, which the defendant admitted committing. After examining the presentence reports, Circuit Judge HUGH R. O'CONNELL imposed the maximum prison sentence in both cases. The defendant in the instant case argues that the ten-year sentence is excessive, just as McCleary did. However, McCleary's forgery was his first offense — therein lies the difference.
This court stated in McCleary v. State, supra, at page 290:
". . . We wish to make it absolutely clear, however, that a trial judge, in an aggravated case and in the exercise of proper discretion, could impose a maximum ten-year sentence in a forgery case and that such discretion would be sustained by this court."
We think that this case is sufficiently "aggravated" to permit the trial court, in the exercise of its sound discretion, to impose the maximum prison sentence. The defendant committed forgery, not once, but six times within six months. Although the trial judge does not sentence for the read-in charges, they can be considered for sentencing purposes. Embry v. State (1970), 46 Wis.2d 151, 158, 174 N.W.2d 521. In addition, defendant's long record shows a prior forgery and many less serious charges.
". . . These complaints are evidence of a pattern of behavior which, in turn, is an index of the defendant's character, a critical factor in the sentencing. . . ." Waddell v. State (1964), 24 Wis.2d 364, 368, 129 N.W.2d 201.
The reasons the trial judge selected the particular sentence clearly appear in the record, as required by McCleary v. State, supra, at page 281. It is evident that the judge was initially reluctant to grant probation and did so only after imposing a lengthy sentence "to be held over [the defendant's] head" in case of violation of the conditions of probation. These conditions were immediately violated and in a most outrageous manner.
We conclude that under the facts of this case the trial judge did not abuse his discretion in imposing the maximum prison sentence.
By the Court. — Judgment and order affirmed.