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State v. Kuechler10/29/2003
. Bruce J. Kuechler appeals from a judgment of conviction and an order denying a motion for post-conviction relief. Kuechler was convicted of seventh offense operating a motor vehicle while intoxicated (OWI) contrary to Wis. Stat. § 346.63(1)(a) (2001-02). Kuechler argues that the sentencing court erroneously exercised its discretion and violated his constitutional rights by arbitrarily imposing a fine according to a local sentencing guideline and by failing to consider his ability to pay the fine imposed. For the reasons explained below, we affirm in part and reverse in part.
FACTS
. After Kuechler's conviction for a seventh offense OWI, the court sentenced him to a three-year term of confinement and a two-year period of extended supervision; he was also sentenced to pay a fine.
. In the court's sentencing statement, it concluded that a maximum term of confinement was not required but a maximum "overall sentence" was necessary. The court admonished Kuechler, stating:
ou, of all people, should have been in a position to know that if you're going to drink you don't get behind the wheel. And you've had so much experience with drunk driving . You, of all people, should know that....
....
I'm looking at your other criminal record. The fact that you have a lengthy history of OWIs and you have a history of other violent offenses here and other offenses here. And you continue to flagrantly violate the law, despite the fact that you've had all these previous contacts.
The court then summarized the aggravating features of Kuechler's offense:
I think this is an aggravated case considering the BAC; considering the many repeated and recent OWIs; considering your other criminal history; considering the fact that you were driving at this time, one, while you were out on bond for another pending fifth or subsequent OWI offense, and, two, while your license was revoked for an offense from 1999 for which you shouldn't have been driving, for which you were on bond for. Nor should you have been driving for this offense.
Finally, the court explained its reasons for imposing the guidelines:
That suggests to the Court that for me to do anything but what the guidelines call for would be an incredible disregard of the law, the guidelines, what they're meant to do, what they are suggested to do. And I think that would unduly depreciate the seriousness of this offense as well as not adequately protect society.... And I don't-I just-I think that it is-that to do anything but what the guidelines call for would unduly depreciate the risk that [Kuechler's conduct] poses and the seriousness of this offense.
. As mitigating factors, the court noted that Kuechler was cooperative with law enforcement, that he was truly remorseful, that he had "finally gotten to the root" of some of his problems and that he had a good employment history.
. The court concluded that Kuechler should "pay a fine, according to the guidelines, which is $8,852."
. After sentencing, new defense counsel filed a motion for post-conviction relief disputing fine-related issues. The motion argued that imposing a fine solely on the basis of the guidelines was both statutorily and constitutionally impermissible; that even if the use of a guideline is proper, the court used the wrong guideline; and that the court erred in not considering Kuechler's ability to pay the fine. The court denied Kuechler's motion. Kuechler appeals his judgment of conviction and the order denying his post-conviction motion.
DISCUSSION AND LAW
. Sentencing lies within the discretion of the
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