State v. Taylor

390 Wis.2d 834

939 N.W.2d 883 (Table)

2020 WI App 10

STATE of Wisconsin, Plaintiff-Respondent,

v.Kevin A. TAYLOR, Defendant-Appellant.

Appeal No. 2018AP2094-CR

Court of Appeals of Wisconsin.

DATED AND FILED January 7, 2020

PER CURIAM.

¶1 Kevin A. Taylor appeals a judgment entered after he pled guilty to second-degree recklessly endangering safety as a repeat offender and causing soft tissue injury to a police officer while resisting the officer. He also appeals an order denying postconviction relief.¹ He alleges that the circuit court sentenced him based on an improper factor, namely, his challenge to restitution. He seeks resentencing. We reject his contentions and affirm.

Background

¶2 According to the criminal complaint, M.N., a City of Greenfield police officer, was on patrol in a marked squad car early on the morning of March 7, 2015. At approximately 2:15 a.m., he approached a vehicle idling in the parking lot of a closed Greenfield business and made contact with the driver. M.N. smelled marijuana and directed the driver, subsequently identified as Taylor, to remain in his vehicle. Taylor, however, began opening and closing the driver’s-side door. M.N. called for backup from additional officers. As events unfolded, Taylor started driving, which "forced [M.N.] to jump into [Taylor’s] vehicle to avoid being run over," and Taylor then drove his vehicle into M.N.’s squad car.

¶3 M.N. struggled with Taylor inside his vehicle and eventually arrested him. M.N. sustained a cut to his face and abrasions to his leg and was conveyed to a hospital for treatment. A search of Taylor’s vehicle incident to the arrest uncovered several grams of cocaine. The State charged Taylor with possession of cocaine, causing soft tissue injury to an officer while resisting the officer, and second-degree recklessly endangering safety as a repeat offender.

¶4 To support the claim that Taylor was a repeat offender, the State alleged that Taylor had a prior conviction for second-degree recklessly endangering safety, and the State attached to the complaint in the instant matter a copy of a 2013 criminal complaint filed in Fond du Lac County. According to the 2013 complaint, Taylor fled from a traffic officer and led police on a high speed chase. When he finally stopped his vehicle, an officer approached Taylor’s vehicle on foot. The officer’s arms were "in the driver’s door" when Taylor accelerated, dragging the officer some distance before the officer eventually fell onto the roadway within inches of the vehicle’s tires. Taylor subsequently abandoned his vehicle in a snowbank. When police searched the vehicle, they found twenty grams of marijuana.

¶5 In March 2016, Taylor decided to resolve the charges in the instant case with a plea agreement. Pursuant to its terms, he pled guilty to second-degree recklessly endangering safety as a repeat offender and to causing soft tissue damage to an officer while resisting the officer. The State agreed to recommend a global disposition of one and one-half years of initial confinement and four and one-half years of extended supervision. The State also moved to dismiss and read in the charge of possessing cocaine. The matters proceeded to sentencing.

¶6 At the outset of the sentencing hearing, the parties advised the circuit court that Taylor disputed the $1542.10 claimed as restitution for damages to the Greenfield squad car, and the State presented testimony from the Greenfield assistant police chief to establish the reasonableness of the claim. Taylor’s cross-examination was brief, focusing on why certain components of the squad car needed to be replaced rather than repaired.²

¶7 Following the assistant police chief’s testimony, the State made the promised sentencing recommendation. In support, the State emphasized that Taylor’s actions were dangerous and placed an officer at risk. Turning to restitution, the State requested an amount necessary to satisfy M.N.’s medical costs and the $1542.10 for squad car repairs.³

¶8 Taylor declined to address the circuit court personally, but his defense counsel spoke on his behalf, noting Taylor’s youth, employment history, and efforts toward completing a high school education. Defense counsel also acknowledged that Taylor was on supervision for his conviction in Fond du Lac County when he committed the crimes in this case and conceded that a prison sentence was warranted. Defense counsel recommended a global sentence of thirteen or fourteen months of initial confinement and twenty-four months of extended supervision. As to restitution, defense counsel advised that Taylor disputed the reasonableness of replacing rather than repairing the squad car’s push bar. Defense counsel therefore proposed that the restitution award exclude that $476.90 replacement cost.

¶9 The circuit court began its remarks by finding that the facts in the instant case were "very similar" to those underlying Taylor’s conviction for recklessly endangering safety in Fond du Lac County, and the circuit court noted that Taylor was serving a term of community supervision for that "borderline identical" case at the time he committed the instant crimes. The circuit court concluded that Taylor had "no respect for authority, no respect ... for police."

¶10 The circuit court next took into account that Taylor failed to comply with the terms of his bond while the instant case was pending, finding that he "once again prov[ed] he has no respect for authority, for officers, for judges, for the courts, or for anyone." The circuit court characterized Taylor as a "menace" and a "threat," and then observed:

[Taylor] sits here shaking his head and rolling his eyes at me as if, ‘who cares what the judge says,’ and ‘[h]ow can you say that, Judge?’ He sits here and forces his attorney to bring in an officer from the Department of Greenfield to squabble over $400 in restitution. That is a sure sign of lack of respect for authority and lack of accountability, lack of apology. There’s been no apology in this case, no accountability, no showing of remorse whatsoever.

¶11 The circuit court next found that Taylor had caused "significant damage" to property and that M.N. incurred substantial medical costs for hospital treatment and x-rays. The circuit court concluded that Taylor had created "a very, very dangerous situation."

¶12 Turning to mitigating factors, the circuit court gave Taylor credit for pleading guilty and acknowledged his "sporadic" work history, which the circuit court viewed as "somewhat positive." The circuit court reiterated, however, that Taylor had committed multiple crimes in this case "while he’s on supervision for almost an exactly similar case, another case involving an officer, another case involving recklessly endangering safety, another case involving some version, technical or otherwise, of fleeing and having no respect for authority."

¶13 The circuit court next determined that Taylor "needs to be punished. He needs to be incarcerated," and the circuit court expressed the hope that Taylor would "mature and stop breaking the law." The circuit court went on:

Hopefully, the D[epartment] o[f] C[orrections] and his time in custody can have some effect on Mr. Taylor, who, again, shows no remorse; if anything, shows disdain as he sits here for the entire process, squabbles over $400 in restitution[,] some of which will be [covered] by the bail .... But restitution he'll certainly have to pay.

For someone that now is on his second serious felony at the age of [twenty-three], multiple criminal contacts, multiple criminal convictions, injures a police officer, shows no remorse whatsoever, which is a negative, squabbles over restitution. When you're go[ing to] have a total restitution in the thousands of dollars he’s worried about $400 and whether or not the push bar for the squad needed to be replaced or ... whether we can just touch it up with paint, preposterous. And it speaks to Mr. Taylor’s utter lack of character, utter lack of empathy. Utter lack of maturity.

¶14 The circuit court then pronounced sentence, imposing an evenly bifurcated six-year term of imprisonment for second-degree reckless endangerment as a repeat offender and a consecutive, evenly bifurcated two-year term for causing injury to an officer while resisting the officer. The circuit court recognized that it had imposed a longer sentence than the State recommended but the circuit court found that Taylor "needs more punishment. He needs more time behind bars." The circuit court explained:

I'm not go[ing to] let him injure an officer and think it’s a joke, which is where this matter currently stands.... He’s an utter danger to the community. He’s running rampant in Greenfield and Fond du Lac and Milwaukee County, terrorizing neighborhoods, potentially, but certainly terrorizing police officers who he has no problem literally running over or running into with squad cars. If anything, I've considered more time than this.

¶15 Taylor moved for postconviction relief. As relevant here, he sought resentencing on the ground that he was sentenced "based on an improper factor, namely, his challenge to the State’s restitution claim." The postconviction court denied the motion without a hearing, finding that the sentencing court considered Taylor’s challenge to restitution only "as [that challenge] related to his character and lack of remorse for his actions." The postconviction court therefore concluded that Taylor was not sentenced on the basis of an improper factor. Taylor appeals.

Discussion

¶16 Sentencing rests in the circuit court’s sound discretion. See State v. Gallion , 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. A circuit court’s exercise of sentencing discretion must include consideration of three primary factors, specifically, "the gravity of the offense, the character of the defendant, and the need to protect the public." State v. Ziegler , 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76. A circuit court may also consider a wide range...