State v. Sehrbrock

1

State of Wisconsin, Plaintiff-Respondent, v. Thatcher R. Sehrbrock, Defendant-Appellant.

No. 2022AP2153-CR

Court of Appeals of Wisconsin, District IV

August 8, 2024

Not recommended for publication in the official reports.

APPEAL from a judgment and an order of the circuit court for Dodge County Cir. Ct. No. 2021CF156: JOSEPH G. SCIASCIA, Judge. Affirmed.

Before Kloppenburg, P. J., Nashold, and Taylor, JJ.

NASHOLD, J.

¶1 Thatcher Sehrbrock appeals the sentencing portion of a judgment of conviction for robbery with use of force as a party to a crime, and an order denying his postconviction motion. Specifically, Sehrbrock challenges a condition of probation requiring that an ignition interlock device be installed on any motor vehicle that he owns or operates. He argues that the ignition interlock condition should be vacated because it is unreasonable or, in the alternative, because its duration of seven years is harsh and excessive. We reject Sehrbrock's arguments and affirm.

BACKGROUND

¶2 The criminal complaint alleges that two masked teenagers later identified as Sehrbrock and Avery Bence, entered a Beaver Dam store after midnight. Bence sprayed the store clerk with pepper spray and took several packs of cigarettes after which a struggle ensued. When Bence called for help Sehrbrock threw several canned drinks at the clerk. He and Bence then fled the scene on foot. Bence later told police that the plan was "to steal cigarettes and/or alcohol from a gas station."

¶3 The State charged Sehrbrock with armed robbery as a party to a crime. In exchange for Sehrbrock's no-contest plea, the State amended the charge to robbery with use of force as a party to a crime. This amendment reduced the maximum penalty from 40 years of imprisonment to 15 years. The circuit court accepted Sehrbrock's plea and ordered that a presentence investigation report (PSI) be prepared.

¶4 The PSI was filed prior to sentencing and, as relevant here set forth Sehrbrock's version of the offense, his criminal history, and his history of substance abuse. Sehrbrock informed the PSI writer of the following. Sehrbrock participated in the robbery because he "was drunk and got peer pressured." He "had been drinking heavily prior to committing the offense and he blacked out." Sehrbrock first started drinking at age 12, and by ages 16 and 17, was "drinking approximately 1.75 liter[s] a day for a year straight." As a result, his skin had "turned yellow." Starting at age 14, he used LSD "a lot," and he also used amphetamines, codeine, ecstasy, mushrooms, cocaine, morphine, and nitrite inhalants. After the offense, Sehrbrock sought treatment and stopped drinking alcohol.

¶5 Sehrbrock's mother informed the PSI writer that Sehrbrock's substance abuse started when he was in eighth grade. She reported that at the time of the robbery, Sehrbrock "was drinking straight vodka heavily. Not just that day, but every single day, all day, for months leading up to that incident."

¶6 The PSI notes that Sehrbrock was adjudicated in a juvenile proceeding for resisting an officer when he was 15 years old. Sehrbrock explained to the PSI writer that he "was under the influence when [he] got picked up" for that offense and that he "resisted arrest." The PSI also reflects that Sehrbrock had two prior felony drug convictions, and a pending misdemeanor charge for criminal damage to property (which, by the time of sentencing, had resulted in a conviction). Sehrbrock told the PSI writer that his criminal record was the result of "[a] combination of being around [the] wrong people and poor choices because of alcohol and drug abuse."

¶7 At the sentencing hearing, the prosecutor discussed Sehrbrock's criminal history and, in addition to the offenses noted above, informed the court that Sehrbrock had an additional pending charge for hit and run. The prosecutor also discussed the seriousness of the robbery offense, stating that the central question was whether this was a "prison case" or a "jail case." Although the prosecutor said that "it certainly would not be wrong to order a prison sentence on a charge this serious," she nevertheless recommended a probationary period of six to eight years, with one year of conditional jail time and other conditions. The prosecutor noted the seriousness of the offense, Sehrbrock's "addiction issues," his young age, and the efforts that Sehrbrock had made prior to sentencing to address his substance abuse issues.

¶8 Defense counsel agreed with the PSI writer's sentencing recommendation for a withheld sentence and five years of probation with one year of conditional jail time. Among other things, counsel noted Sehrbrock's "addictions" and his efforts to address them, his young age, and his honesty with the PSI writer.

¶9 Sehrbrock's mother also addressed the circuit court. She said that Sehrbrock "has struggled with drug and alcohol addiction and as such has made some very poor decisions." She asked the court not to send Sehrbrock to prison because it would not "address the actual root of the problem that led him here today." Sehrbrock, who was 17 years old at the time of the offense and 18 years old at the time of sentencing, told the court: "The night at the gas station I made a stupid impulsive decision and I was heavily drinking at that time. Like every day."

¶10 Before imposing its sentence, the circuit court discussed Sehrbrock's criminal history and his extensive abuse of alcohol and drugs. The court also discussed the harms that substance abuse inflicts on individuals and society, societal acceptance of alcohol and drug use, Sehrbrock's young age, and Sehrbrock's support from his family.

¶11 The circuit court stated that Sehrbrock's extensive criminal record indicated that "maybe it's time to do some prison." However, the court accepted the parties' probation recommendation with one year of conditional jail time. The court withheld sentence and placed Sehrbrock on probation for seven years, with conditions that included one year of conditional jail time with work release privileges; no consumption of alcohol or other intoxicants; absolute sobriety; not going to bars, taverns, liquor stores or beer tents; and completion of AODA (Alcohol and Other Drug Abuse) programming as determined by Sehrbrock's probation agent.

¶12 In addition, although it was not requested by either party, the circuit court ordered the condition of probation that is at issue in this appeal: that Sehrbrock have an ignition interlock installed on any vehicle he owns or operates for the duration of his seven-year term of probation. In imposing this condition, the court stated, "Somebody who drinks as much as [Sehrbrock] drinks ought not be on the road unless he's in a car that has ignition interlock." The court also held out the opportunity of discharging Sehrbrock from probation early: "If you're doing really, really well on probation your agent might say he doesn't need seven years, he's good to go and I'll approve that."

¶13 Sehrbrock subsequently filed a postconviction motion requesting removal or modification of the ignition interlock condition. Sehrbrock argued that the condition is unreasonable because it is not individualized to Sehrbrock or to the facts of his offense, and because it does not further his rehabilitation or the protection of the community. Alternatively, Sehrbrock argued that the condition should be removed or reduced because its imposition for the full seven-year probationary period is "harsh and excessive."

¶14 At the hearing on Sehrbrock's postconviction motion, defense counsel argued that Sehrbrock had no history of offenses involving operation of a motor vehicle while intoxicated (OWI) and that the circuit court's conditions requiring that Sehrbrock not consume alcohol and maintain absolute sobriety already addressed Sehrbrock's rehabilitation and the protection of society. Defense counsel also argued that the seven-year period for the ignition interlock is longer than what could statutorily be imposed on a repeat OWI offender. In response, the prosecutor argued that the ignition interlock condition was "reasonable and appropriate," but also said that she was "not convinced" that it needed to be for the full seven years of probation.

¶15 The circuit court denied Sehrbrock's motion. The court noted that alcohol was involved in the offense, that it "is a huge factor in Mr. Sehrbrock's inability to stay out of trouble," and is "directly related to his conduct." The court said that Sehrbrock "got in[to] a car with a bunch of people" and "agreed to go into a store and rob somebody to get alcohol." The court concluded that Sehrbrock's lack of OWIs was not a reason not to order the ignition interlock condition, telling Sehrbrock, "Once you get to the point where you're intoxicated, you have given the keys to your life to the devil. And everybody who is in contact with you is in danger because there's no telling what you're go[ing to] do." The court told Sehrbrock, "[Y]ou and alcohol teamed up and [you] got yourself into a lot of trouble." The court further stated, "I'm not [going to] put the public at risk," that "if there's something I can do to minimize their risk, I'm [going to] do it," and that the ignition interlock "is an easy thing, common sense thing, to do to protect you against yourself."

¶16 The circuit court also noted that Sehrbrock had been disciplined for violating the jail's alcohol and drug rules, saying, "[W]hat that tells me is substance abuse is an issue with Mr. Sehrbrock." Specifically, jail personnel had informed the court that Sehrbrock reported to serve his sentence under the influence of controlled substances and had to be sent to the hospital by ambulance and had on another occasion been caught...