author: JON E WILCOX, J. ANN WALSH BRADLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Germaine M. Taylor, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 2004AP1092-CR.

      Oral argument November 16, 2005.

      Decided March 8, 2006.

    2006 WI 22
    (Also reported in 710 N.W.2d 466.)

      For the defendant-appellant-petitioner there were briefs and oral argument by Martha K. Askins, assistant state public defender.
    For the plaintiff-respondent the cause was argued by Gregory M. Weber, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   JON E WILCOX, J.

¶ 1. The defendant, Ger-maine M. Taylor (Taylor), seeks review of an unpublished decision of the court of appeals, which affirmed Taylor's judgment of conviction for second-degree sexual assault of a child and an order of the Racine County Circuit Court, Allan B. Torhorst, Judge, deny-ifig his motion for postconviction relief.

¶ 2. Taylor contends the circuit court did not properly explain its reasoning behind the sentence imposed and the sentence itself is unduly harsh and excessive and should therefore be vacated. We disagree and conclude that under our well-established standards for reviewing the circuit court's exercise of its sentencing discretion, and in light of the individual facts and circumstances of this case, the circuit court exercised proper discretion in its sentence and in its refusal to modify that sentence. Accordingly, we affirm the court of appeals.

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¶ 3. On April 29, 2002, the State filed a criminal complaint charging Taylor with second-degree sexual assault of a child, under Wis. Stat. § 948.02(2) (1999-2000). The complaint alleged that on or about September 2001, Taylor unlawfully and feloniously had sexual intercourse with the victim, S.R., who had not attained the age of sixteen years. The complaint arose when an employee of the Racine County Human Services Department informed the Racine Police Department that S.R. became pregnant by engaging in non-forced sexual intercourse with Taylor. S.R. indicated that she had sexual intercourse with Taylor on two occasions in 2001.

¶ 4. Taylor met S.R. while he was living at the Transitional Living Apartment in Racine on probation for a previous conviction of second-degree sexual assault of a child. S.R. and a friend were visiting another resident of the facility, Maurice Smith (Smith). On a later date, the four met at Smith's sister's house and got into a vehicle. S.R. reported that she did not know where they were going, but they ended up in Green Bay at Smith's cousin's house. S.R. stated that she had sexual intercourse with Taylor after consuming wine and liquor. The two had sex again at Taylor's aunt's house. Taylor stated he believed S.R. was eighteen.

¶ 5. Second-degree sexual assault of a child was classified as a Class BC felony when the criminal complaint was filed. Wis. Stat. § 948.02(2). This offense subjected Taylor to a fine not to exceed $10,000 or imprisonment not to exceed 30 years, or both. Wis. Stat. § 939.50(3)(be). Additionally, Taylor was charged as a repeater under Wis. Stat. § 939.62, which increased his maximum imprisonment exposure to not more than 40 years, due to a previous conviction of second-degree sexual assault of a child.

¶ 6. This previous conviction arose from an incident in February or March 1999 when Taylor had sexual intercourse with the victim, K.A.H., who had not obtained the age of sixteen years. This complaint, filed on October 21, 1999, arose when an employee of the Racine County Human Services Department informed the Racine Police Department that K.A.H. was pregnant and she had indicated that Taylor was the father. When Taylor was questioned by the police, he stated the following: (1) he was one of six boys having sex with the victim; (2) he and K.A.H. had engaged in consensual sexual intercourse with protection on two occasions at K.A.H.'s home a few days apart in early 1999; and (3) he was not the father of the child.

¶ 7. Taylor entered a guilty plea on April 28, 2000, and the Racine County Circuit Court, Judge Emily Mueller presiding, entered judgment of conviction against Taylor on July 5, 2000. Judge Mueller withheld sentencing and Taylor was placed on a two-year period of probation. Sixty days of conditional jail time was given as a condition of probation; however, this time was stayed. Furthermore, he was ordered to have no sexual contact with anyone under the age of eighteen as a condition of his probation.

¶ 8. While on probation, Taylor's probation agent discovered that Taylor impregnated a seventeen-year-old girl, B.K., in September 2000. At the time, Taylor told his agent that he did not believe he was in violation of his probation because he thought he was only prohibited from having sex with individuals who were sixteen years or younger. Taylor was placed in custody, and he served the 60-day sentence that had been initially stayed by the court.

¶ 9. In October 2001, Taylor failed to report to his probation agent and was in absconder status until he was taken into custody on June 19, 2002. Taylor was charged on this date with resisting or obstructing an officer under Wis. Stat. § 946.41(1).

¶ 10. During the period of time that he was gone from supervision, Taylor assaulted B.K. and damaged her motor vehicle. This assault led to a charge of criminal damage to property under Wis. Stat. § 943.01(1) filed on March 22, 2002.

¶ 11. Taylor's probation was revoked on August 9, 2002, for these and other probation violations, and he returned to court before Judge Mueller on September 3, 2002, for sentencing after revocation. Judge Mueller sentenced Taylor to an indeterminate five-year sentence.

¶ 12. In the current case, an information was filed on July 3, 2002. Taylor also waived his right to a preliminary hearing, and pled not guilty in open court before a court commissioner on the same date. On October 25, 2002, before Judge Allan B. Torhorst, Taylor changed his plea. Pursuant to a plea agreement, Taylor pleaded guilty to second-degree sexual assault of a child without the repeater enhancer. Additionally, the misdemeanor charges of criminal damage to property and resisting or obstructing an officer were dismissed but would be read-in for dispositional purposes at the time of sentencing. For the State's part, it recommended prison, but stood silent as to the amount of prison time. The court also ordered a presentence investigation report (PSI).

¶ 13. On April 29, 2003, the court entered judgment of conviction and sentenced Taylor to a bifurcated sentence of 18 years, with 12 years of initial confinement and 6 years of extended supervision, consecutive to the 5-year sentence imposed by Judge Mueller. As part of the PSI, the Department of Corrections (DOC) recommended a sentence of 12 years with 6 years of initial confinement and 6 years of extended supervision, to be served consecutive to Judge Mueller's sentence.

¶ 14. Taylor filed a motion for postconviction relief on December 10, 2003, requesting that the court order resentencing for two reasons: (1) the court misunderstood the presentence recommendation; and (2) the sentence was unduly harsh. After a hearing on March 18, 2004, the court denied the motion in a written decision and order filed April 8, 2004. The court concluded it had merely misspoken when it indicated the DOC recommendation, but such misstatement was immaterial to the court's conclusions and ultimate sentence. After reviewing the sentencing transcript, the court continued to believe that "Taylor is an absolute and legitimate threat to the community by his failure to comply with Wisconsin's law prohibiting sexual assault." In sum, the circuit court concluded it imposed an appropriate and necessary sentence on Taylor given the facts and circumstances of the case.

¶ 15. Taylor appealed, and the court of appeals affirmed. The court stated in conclusion: "We are persuaded that, given Taylor's penchant for sexually assaulting young girls and his belligerent display at sentencing, the sentence imposed here would neither shock public sentiment nor violate the judgment of reasonable people." State v. Taylor, No. 2004AP1092-CR, unpublished order, at 4 (Wis. Ct. App. Dec. 29, 2004).

¶ 16. Taylor then filed a petition for review in this court, and we granted review only as to the second issue presented, namely: Is a sentence of 12 years of initial confinement and 6 years extended supervision excessive for this nineteen-year-old defendant who had non-forced sexual intercourse with a fifteen-year-old girl? We conclude that under the totality of the facts and circumstances of this case, the sentence is not excessive, and we affirm the court of appeals.

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¶ 17. The standards governing appellate review of an imposed sentence are well settled. A circuit court exercises its discretion at sentencing, and appellate review is limited to determining if the court's discretion was erroneously exercised. State v. Gallion, 2004 WI 42, ¶ 17, 270 Wis. 2d 535, 678 N.W.2d 197; see also McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971) ("It is thus clear that sentencing is a discretionary judicial act and is reviewable by this court in the same manner that all discretionary acts are to be reviewed."). "Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning. This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards." Id. at 277.

¶ 18. "The sentencing decisions of the circuit court are generally afforded a strong presumption of reasonability because the circuit court is best suited to consider the relevant factors and demeanor of the convicted defendant." State v. Borrell, 167 Wis. 2d 749, 781-82, 482 N.W.2d 883 (1992) (citing State v. Harris, 119 Wis. 2d 612, 622, 350 N.W.2d 633 (1984)). "Therefore, the convicted defendant must show some unreasonable or unjustified basis in the record for the sentence imposed." Borrell, 167 Wis. 2d at 782 (citing Harris, 119 Wis. 2d at 622-23). "Appellate judges should not substitute their preference for a sentence merely because, had they been in the trial judge's position, they would have meted out a different sentence." McCleary, 49 Wis. 2d at 281.

¶ 19. Furthermore, "[a] trial judge clearly has discretion in determining the length of a sentence within the permissible range set by statute." Hanson v. State, 48 Wis. 2d 203, 207, 179 N.W.2d 909 (1970). "An abuse of this discretion will be found only where the sentence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975) (citing Mallon v. State, 49 Wis. 2d 185, 181 N.W.2d 364 (1970); Buckner v. State, 56 Wis. 2d 539, 202 N.W.2d 406 (1972); McCleary, 49 Wis. 2d 263).

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¶ 20. Taylor challenges his sentence on two interrelated grounds. First, he argues that although the circuit court gave reasons for its sentence, it did not explain why 12 years of initial confinement was necessary to fulfill the goals of the sentence. In other words, Taylor contends the circuit court failed to adequately explain why it deviated from the sentence recommended in the PSI or how it reached the length of sentencing that it ultimately settled on. Second, Taylor argues that his sentence is excessive on its face when viewed in context of the three primary factors a court must consider at sentencing as articulated in McCleary, 49 Wis. 2d at 276." 'The sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.'" Id. (quoting Standards Relating to Sentencing Alternatives and Procedures, American Bar Association Project on Minimum Standards for Criminal Justice, Approved Draft, 1968, § 2.2, at 14). See also State v. Spears, 227 Wis. 2d 495, 507, 596 N.W.2d 375 (1999); State v. Carter, 208 Wis. 2d 142, 156, 560 N.W.2d 256 (1997); State v. Echols, 175 Wis. 2d 653, 682, 499 N.W.2d 631 (1993).

A.

¶ 21. We begin with the statements made by the circuit court at Taylor's sentencing hearing and in its postconviction order to determine if the record reflects that the court exercised its discretion on a "rational and explainable basis." McCleary, 49 Wis. 2d at 276. As stated by the McCleary court:

[W]e are obliged to search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained. It is not only our duty not to interfere with the discretion of the trial judge, but it is, in addition, our duty to affirm the sentence on appeal if from the facts of record it is sustainable as a proper discretionary act.

Id. at 282. From our examination of the facts on record, and the court's articulated reasoning in the sentencing transcript and the postconviction order, we are satisfied that the circuit court properly exercised its sentencing discretion and the sentence imposed was the product of an appropriate process of reasoning.

¶ 22. The court first noted that the information contained in the PSI weighed heavily on its mind: "What drives my decision in this case ... is the information I've received on not only this presentence, but also the presentence that was attached to it that Judge Mueller used in her sentence." These PSIs fully detailed the "illegal criminal sexual activity with at least three victims." In the court's view and the PSI writer's view, these repeated violations occurred because Taylor believed he had "some type of insular shelter [] concerning the laws under which he's been convicted." The court farther explained: "Mr. Cacciotti [the PSI writer] just nailed it when he said, when I read it, he doesn't realize the havoc he has created in the lives of three young women, three children, no father, no responsibilities, and he's out there essentially saying give me another pass."

¶ 23. The court was cognizant that the sexual acts Taylor was involved in were physically nonviolent, but in the court's view:

To embrace the argument that these are consensual sexual acts just simply does not recognize not only our law, but also my belief that there are people in our society that need protection. They need protection because they cannot simply, for reasons that the legislature believes in, and as adopted, consent to do certain things.

¶ 24. Indeed, the court listed the facts involved in this case which suggested (1) Taylor did not show any concern for the laws applicable to him or any desire to change his behavior while on probation or after a 60-day period of incarceration; and (2) although the sexual intercourse was non-forced, it does not follow that it was "consensual."

Mr. Taylor, what is particularly of concern to me is how this case came about. You're on supervision from Judge Mueller. You're, in fact, in a transitional living center; that's when the initial meetings took place. And after contacts are made, you and a friend take the young women not anyplace locally, not that that makes much difference where they were taken, but you go to Green Bay. There's liquor involved, young women admit they drank liquor. And what happens is you're saying: I thought they were — or, I thought the victim I'm involved with was 18. The same law that protects this victim is a law that requires you as an adult in this situation to make inquiry.
This man goes out with a 15-year old when he's on supervision and his excuse is it was consensual, or his excuse is I didn't know she was 15. These facts are incredulous with his record.
THE DEFENDANT: Man, I've got five years to think about this.
THE COURT: You're going to have more time to think about it, Mr. Taylor, because you should have thought about that when Judge Mueller told you probably about the same thing on the second — on the first go around. You have done nothing to alter your criminal behavior and approach to these young women, absolutely nothing.

¶ 25. The sentencing transcript also reveals that the court was concerned about protecting the public from Taylor's "unmitigated sexually abusive behavior towards underage women[.]" The court stated:

This isn't the way it goes, Mr. Taylor. You are responsible right from the get-go. If you think I'm going to turn you lose [sic] on society with your attitude, you are sorely mistaken.
It's not going to happen on my watch, Mr. Taylor. I want you out of this community. I want you to understand this type of crime, as I've indicated, is one of the most serious short of homicide, batteries or something where you beat somebody up. Then to waltz in here today and try to convince me that this was all consensual is beyond belief. I view this as a crime where confinement is necessary to protect the public. Our law tries to protect these young women. It has forever.
Court's findings and belief, as I indicated, confinement is necessary to protect our society and public from further criminal activity. It would unduly depreciate the seriousness of this offense if any sentence of probation were imposed.
I'm sure you're remorseful, but I'm sure your remorse will be short-lived if I put you on the street and this situation presents itself again.

¶ 26. The comments of the court in its decision concerning Taylor's postconviction motion further convince us that the circuit court did not erroneously exercise its discretion. The court clarified that it had misstated, not misunderstood, the recommendations of the PSI, when it stated on the record at the sentencing hearing that the DOC was recommending 18 and one-half years, as opposed to the 12 years actually recommended. Additionally, the court concluded that its sentence was not unduly harsh given the circumstances and facts of the case. The decision reads in pertinent part as follows:

The Court's sentencing rationale began on page 13 of the sentencing transcript and concludes at page 20. This decision will not reiterate the Court's conclusions but rather incorporate those conclusions as this Court continues to believe that Taylor is an absolute and legitimate threat to the community by his failure to comply with Wisconsin's law prohibiting sexual assault. The Court's observation that Taylor committed the sexual assault which is the subject of the charges in this case occurred while he was on supervision for similar charges and the Court's observation that Taylor has and continues to believe that sexual assault is appropriate regardless of the age of the victim becomes clear upon reading the sentencing transcript and Taylor's colloquy with the Court during the sentencing.
Taylor's professed concern about his children is not supported by the facts. The presentence clearly establishes that Taylor's prior criminal acts and past failure to support his children notwithstanding his claim that his children now need him. He fails to pay support and he fails to develop real relationships with his children but for and at his convenience.
The Court concludes it did misspeak when it stated the recommendations of the Department of Corrections but also concludes that the misstatement was immaterial to the Court's conclusions and ultimate sentence.
The Court is mindful that Taylor will be incarcerated for a significant time; however, the incarceration in the instant case is reflective of Taylor's absolute violation of the law; a violation while on probation for charges of an identical nature. Taylor fails to conform to the law, fails to conform and obey the rules of supervision, and repeatedly has placed multiple victims at risk because of his behavior.
The Court concludes that, notwithstanding its statement, it has imposed an appropriate and necessary sentence upon Taylor and denies Taylor's application to be resentenced.

¶ 27. All told, the record before us demonstrates that the circuit court exercised individualized discretion on behalf of the sentence chosen for Taylor. That is, the court fixed a sentence that took into account the following: (1) Taylor's history of sexual assault; (2) his failure to recognize or accept the serious criminal nature of his conduct; (3) the read-in charges concerning the criminal damage to property and resisting or obstructing an officer; (4) the court's belief that unless Taylor was made to serve a substantial term of confinement, the public would not be protected from his ongoing criminal conduct; and (5) the court's belief that a long term of initial confinement was necessary to rehabilitate Taylor, as both probation and 60 days of confinement had not adequately impressed upon Taylor the seriousness of his conduct.

¶ 28. In terms of the length of his sentence, Taylor argues that there appeared to be no "starting point" for the court of some very low period of confinement, or even the period of confinement recommended by the PSI writer. We cannot agree. At the sentencing hearing, the court clearly began its assessment of the appropriate sentence for Taylor with the PSI and the information and recommendations contained therein: "What drives my decision in this case... is the information I've received on not only this presen-tence, but also the presentence that was attached to it that Judge Mueller used in her sentence."

¶ 29. As stated by this court, "[t]he [PSI] is designed to assist the sentencing court in determining the appropriate sentence for that defendant and the public. Rational and consistent sentencing decisions cannot be achieved without a reliable information base. The [PSI] is supposed to provide the sentencing court with that information base." State v. Crowell, 149 Wis. 2d 859, 868, 440 N.W.2d 352 (1989) (citations omitted). We believe it is clear from the sentencing transcript that the circuit court properly used the PSI as its information base or starting point for the appropriate sentence to impose.

¶ 30. Granted, the circuit court did not explicitly state why, in its discretion, it added six more years of initial confinement onto the PSI recommendation. However, McCleary does not require a sentencing court to provide an explanation for the precise number of years chosen. McCleary mandates that the court's sentencing discretion be exercised on a "rational and explainable basis[,]" and such discretion "must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards." McCleary, 49 Wis. 2d at 276-77. Again, we believe the court properly exercised its discretion and provided a rational and explainable basis on the record for why it began with the recommendation posed in the PSI and why, in the court's view, a longer initial incarceration period was necessary to promote its sentencing objectives. In other words, the trial court reasoned that based on Taylor's repeated sexual assaults and his failure to amend his behavior in light of previous probation and incarceration, a longer sentence, but well-within the general range of the PSI recommendation and the limits of the maximum sentence, was necessary to best protect the public and rehabilitate the defendant. Given our " 'strong policy against interference with the discretion of the trial court in passing sentence[,]'" McCleary, 49 Wis. 2d at 276 (quoting State v. Tuttle, 21 Wis. 2d 147, 150, 124 N.W.2d 9 (1963)), we cannot say, as a matter of law, that the circuit court erroneously exercised its discretion.

B.

¶ 31. Taylor also argues that the length of his sentence is excessive when considered in light of the nature of the offense, the character of the offender, and the protection of the public. We disagree and conclude that Taylor's term of initial confinement was fully justified by the facts and circumstances of this case, and was not "so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Ocanas, 70 Wis. 2d at 185; accord State v. Setagord, 211 Wis. 2d 397, 416 n.9, 565 N.W.2d 506 (1997); State v. Sarabia, 118 Wis. 2d 655, 673, 348 N.W.2d 527 (1984); Murphy v. State, 75 Wis. 2d 522, 531, 249 N.W.2d 779 (1977); State v. Killory, 73 Wis. 2d 400, 408, 243 N.W.2d 475 (1976); State v. Schreiber, 2002 WI App 75, ¶ 7, 251 Wis. 2d 690, 642 N.W.2d 621.

¶ 32. First, Taylor contends that his term of confinement is excessive in light of the following circumstances surrounding the nature of the offense: (1) S.R. was three months shy of her sixteenth birthday, and if the two had intercourse when S.R. was sixteen, he would have been guilty of a misdemeanor and not a felony; (2) S.R. did not view herself as a victim; (3) although his conduct was unlawful, it was not unusual, as teenagers engage in sexual intercourse all the time; (4) the age difference between himself and S.R. was a little over three years; and (5) many sexual assault cases involving the same conduct are not prosecuted.

¶ 33. Second, Taylor argues his sentence is excessive when considering his character: (1) Taylor was an immature high school student when he committed the second charged sexual assault; (2) his sexual assaults were nonviolent; and (3) the Sex Offender Assessment that had been prepared while he was initially incarcerated did not recommend sex offender treatment during Taylor's confinement.

¶ 34. Finally, Taylor asserts the sentence imposed by the circuit court is excessive when considering the need to protect the public. That is, the sentence was not limited to the least amount of confinement necessary to protect the public.

¶ 35. Although we recognize the accuracy of many of Taylor's assertions, we are not persuaded that in light of all the facts and circumstances of this case, the circuit court erroneously exercised its discretion under the formidable Ocanas standard.

¶ 36. Admittedly, statutory rape cases are highly charged and "do not lend themselves to a simplistic application of the law." See Sandy Nowack, A Community Prosecution Approach to Statutory Rape: Wisconsin's Pilot Policy Project, 50 DePaul L. Rev. 865, 867 (2001). "These cases become magnifying glasses, exposing with particular clarity any lack of harmony that exists in a community's cultural values, beliefs about parenting and teens, and attitudes about female sexuality." Id.; see also Gary W Harper, Contextual Factors that Perpetuate Statutory Rape: The Influence of Gender Roles, Sexual Socialization and Sociocultural Factors, 50 DePaul L. Rev. 897 (2001) ("Childhood and adolescent sexuality are complex phenomena that are impacted by a host of cultural, developmental, environmental, and familial factors."). This is especially true in sexual assault cases where the age difference between the defendant and the victim is not great.

Unsurprisingly, people react to the notion of statutory rape with some skepticism and ambivalence. After all, statutory rape laws ostensibly render the act of "consensual" sexual contact a crime. It seems that many people hear statutory rape and roll their eyes, thinking about the futility of trying to regulate the hormonal urgings of those caught in the throes of puberty. Virtually no one endorses statutory rape laws without some hesitation or qualification. At the same time, however, virtually no one recommends abolishing the crime of statutory rape outright. In spite of the rosy recollections, it seems obvious that young people are vulnerable to abuse and exploitation in their sexual encounters, and that the law must play some role in regulating and protecting against that abuse.

Michelle Oberman, Girls in the Master's House: Of Protection, Patriarchy and the Potential for Using the Master's Tools to Reconfigure Statutory Rape Law, 50 DePaul L. Rev. 799, 799-800 (2001) [hereinafter Ober-man I]. Exactly what role the law should play in dealing with the sexual encounters of young people is certainly a matter open to debate. This debate is important, but it should remain in the public arena and with thelegis-lative branch. Until the people of this state determine otherwise, Taylor's actions were criminal, and under the facts and circumstances of this case, the circuit court was well within its discretion in imposing the stiff sentence it did.

¶ 37. Furthermore, it is no secret that many teenagers are sexually active in today's society. We also do not disagree with the assertion that many state prosecutors have adopted a lenient attitude towards enforcing statutory rape laws. See Nowack, supra, at 873-74 ("In reality, non-coerced sexual contact between two adolescents is not typically charged without some aggravating factor.").

¶ 38. Despite these realities, the circuit court did not view Taylor's sexual assault of S.R. as an act of consensual sexual experimentation between two teenagers with "the hormonal urgings of those caught in the throes of puberty." Oberman I, supra, at 800. In the court's view, Taylor's crime was consistent with a pattern of sexual assaults that inflicted significant harm on three young women, three children, and society as a whole. Indeed, the PSI belies Taylor's claim that S.R. did not view herself as a victim, as she stated the following: "I think he should be punished. I believe he will continue to do this.... He told me that I was to blame for getting him in trouble. He told me that he would go to jail because of this. I believe he should be placed in prison for what he has done." Under the totality of the facts and circumstances of this case, we cannot disagree with the court's assessment of the seriousness of Taylor's repeated offenses.

¶ 39. As detailed in the PSI, Taylor was charged, convicted, and subsequently placed on a reasonable period of probation for similar behavior once before. Taylor, however, refused to alter his conduct in any meaningful manner during this probationary period. While on probation, Taylor impregnated a seventeen-year-old girl despite the court's order that he refrain from engaging in sexual intercourse with anyone under the age of eighteen. Taylor also violated other conditions set by the court by failing to: (1) attend Adult Basic Education Programming and maintain verifiable employment; (2) abide by the rules of his Transitional Living Placement and follow the procedures of the Electronic Monitoring Program; and (3) attend an Intensive Outpatient Programming for Alcohol Drug Abuse orientation appointment. It was during this run of probation violations that Taylor first had sexual contact with the victim of the present action. Taylor eventually stopped reporting to his probation officer and was in absconder status for at least eight months until he was taken into custody for the charges that brought about this action. While he was gone from supervision, Taylor reported that he used drugs and consumed alcohol. He also battered the seventeen-year-old subject of his earlier probation violation, B.K. She informed the PSI writer that an angry and drunk Taylor arrived at her house and proceeded to damage her car and beat her up. All told, the record is replete with examples of the serial nature of Taylor's conduct, and his utter lack of rehabilitation, all of which demonstrate that Taylor's sentence was not so excessive as to shock public sentiment.

¶ 40. The serial nature of Taylor's conduct clearly demonstrated to the circuit court he was not a naive high school student caught up in innocent sexual experimentation. Taylor's behavior is alarmingly repetitive and his own statement in the PSI report demonstrates he has not taken anything to heart. As the circuit court recognized, it is incredible that after being convicted once for the same offense, and after spending time in prison for having sex with a seventeen-year-old, Taylor explained: "I really didn't think about [S.R.'s age]. I thought she was eighteen." Furthermore, Taylor's belligerent display at the sentencing hearing further demonstrated to the court his utter lack of judgment and concern for the seriousness of his actions.

¶ 41. The circuit court was also unimpressed by the fact that Taylor's sexual assaults were "non-forced" because Wisconsin's statutory scheme makes it clear that a child lacks the legal capacity to consent to sexual intercourse, just as children lack the ability to form contracts or buy liquor. This contention is not without reason. "Investigators studying adolescent sexuality have identified a multiplicity of factors beyond sexual desire and love that lead teenagers to consent to sex. Among these are fear, confusion, coercion, peer pressure, and a desire for male attention." Michelle Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 Buff. L. Rev. 703, 709 (2000); see also Oberman I, supra, at 813 (It is "clearly true that there is considerable opportunity for coercion in sexual encounters between peers. As the Michael M. ease[] powerfully demonstrates, this coercion may be so commonplace, and so deeply scripted into contemporary norms of sexual interaction, that it is all but invisible."). In other words, there can be an imbalance of power in the sexual encounters between young teenage girls and young adult men. It is apparent that the facts of this case persuaded the circuit court that such an imbalance of power likely occurred here as S.R. was taken to Green Bay without knowing where she was going, was served alcohol before engaging in sexual intercourse with Taylor, and, according to S.R., Taylor apparently tried to persuade her not to cooperate with the prosecution.

¶ 42. These facts also led the circuit court to reasonably conclude that Taylor would continue his course of detrimental sexual behavior unless he was incarcerated for a lengthy period of time. As the PSI amply demonstrated, Taylor was not rehabilitated or deterred by his prior criminal conviction, his term of probation, or his initial period of incarceration. He was simply unwilling to conform his conduct to the law, and there was nothing that led the court to believe that his behavior would change in the future. Indeed, the court concluded that Taylor had made the determination that the laws of the State of Wisconsin do not apply to him. In the court's view, an extended period of incarceration was necessary to protect young girls from Taylor's sexual behavior and his disregard for the rule of law.

¶ 43. We believe the court clearly considered the nature of the offense, the character of the defendant, and the protection of the public. Taylor recognizes the court's legitimate concern about protecting the public, but he essentially contends the court relied too heavily on this factor and gave too little weight to the other primary factors and the specific considerations described above. We do not dispute the relative weight given by the trial court to its concerns about the safety of the public. As we have recognized, however, "[g]iving consideration to various relevant factors does involve a weighing and balancing operation, but the weight to be given a particular factor in a particular case is for the trial court, not this court, to determine." Cunningham v. State, 76 Wis. 2d 277, 282, 251 N.W.2d 65 (1977); accord Schreiber, 251 Wis. 2d 690, ¶ 8. Furthermore, "a sentence can be imposed which considers all relevant factors but which is based primarily on the gravity of the crime or the need to protect society." Cunningham, 76 Wis. 2d at 283.

¶ 44. As such, in light of all the facts and circumstances before the circuit court at sentencing, we find no basis for holding that, as a matter of law, the sentence imposed is excessive, as it is not so unusual, or disproportionate as to shock public sentiment.

IV

¶ 45. In sum, Taylor's sentence, while certainly strict, is not excessive. "Indeed, the fact that this court might have reacted differently under the facts and circumstances of a particular case is, itself, insufficient to warrant a determination that the trial court abused its discretion^ given our] strong policy against interference with the discretion of the trial court." Ocanas, 70 Wis. 2d at 188 (citing Tuttle, 21 Wis. 2d 147; Voigt v. State, 61 Wis. 2d 17, 211 N.W.2d 445 (1973)).

¶ 46. We conclude that under our well-established standards for reviewing the circuit court's exercise of its sentencing discretion, and in light of the individual facts and circumstances of this case, the circuit court exercised proper discretion in its sentence and in its refusal to modify that sentence. Accordingly, we affirm the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

ANN WALSH BRADLEY, J.

¶ 47. {concurring). I join the opinion of the majority. As the author of State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, I write separately to highlight that the case before the court today is a pr e-Gallion case. Additionally, I write to emphasize certain components of the basic sentencing framework set forth in Gallion.

¶ 48. The majority correctly notes "because Taylor was sentenced a little less than a year before we released Gallion, its holding does not apply to this case." Majority op., ¶ 17, n.9. Instead, the majority appropriately employs pr e-Gallion cases in its analysis.

¶ 49. Of course, many of the pr e-Gallion cases cited by the majority form the framework of the Gallion analysis. In Gallion, we reexamined the process of reasoning which demonstrates the proper exercise of sentencing discretion and noted that appellate courts are required to "more closely scrutinize the record to ensure that 'discretion was in fact exercised....'" Gallion, 270 Wis. 2d 535, ¶ 4 (quoting State v. McCleary, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971)). We determined that the exercise of sentencing discretion "must be set forth on the record." Gallion, 270 Wis. 2d 535, ¶ 8.

¶ 50. In the wake of truth-in-sentencing legislation, we perceived a difference between the sentencing landscape prior to Gallion and that which existed at the time that Gallion was decided. See id., ¶ 28. Under the old, indeterminate sentencing system, all three branches of government played a role in establishing the sentence served. Id. Now, the executive branch role has been diminished with the abolition of the parole board. Id., ¶¶ 28, 33. The role of the legislative branch is limited to setting the parameters of the penalty. Id., ¶ 28. Thus, the responsibility of the judicial branch, in ensuring fair sentences, has significantly increased. Id.

¶ 51. Previously, judges were thought to have inadequate information to determine the actual date on which a prisoner should be released. Id., ¶ 32. Instead, the prison officials and the parole board who had sustained contact with the prisoner were thought to be in a better position to determine if the rehabilitation efforts were successful and when the prisoner could be safely released. Id. Now, in large part, the release date is determined up front, at the time of sentencing. Id., ¶ 34.

¶ 52. In light of these changes, we reaffirmed in Gallion the sentencing standards set forth in McCleary and reexamined the manner in which those standards were to be applied. We noted a "regrettable disconnect" between the McCleary principles as-stated and those principles as-applied. Id., ¶ 26. Ultimately we concluded that "[w]hat has previously been satisfied with implied rationale must now be set forth on the record." Id., ¶ 38.

¶ 53. In reaffirming the McCleary standards and reexamining the manner in which those standards were to be applied, we set forth the basic framework for sentencing and emphasized the need for the court to set forth its rationale on the record. I highlight here certain components of that discussion:

• Courts must specify the objectives of the sentence. Id., ¶ 41.
• Courts are to describe the facts and sentencing factors relevant to those objectives, and explain why the sentence imposed advances the specified objectives. Id., ¶ 42.
• In each case, the sentence imposed shall " 'call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.'" Id., ¶ 44 (quoting McCleary, 49 Wis. 2d at 276).
• Courts are to consider probation as the first alternative. Probation should be the disposition unless:confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or it would unduly depreciate the seriousness of the offense. Gallion, 270 Wis. 2d 535, ¶ 44.

¶ 54. The requirement of an on-the-record explanation will serve to fulfill the McCleary directive that discretion be exercised on a "rational and explainable basis." Id., ¶ 39 (quoting McCleary, 49 Wis. 2d at 276). Merely uttering the facts involved, invoking sentencing factors, and pronouncing a sentence is not a sufficient demonstration of the proper exercise of discretion. Quoting McCleary, the Gallion court recounted that: "Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning." Id., ¶ 3 (quoting McCleary, 49 Wis. 2d at 277). Courts must reference the relevant facts and factors, and explain on the record the linkage between the sentence given and the sentencing objectives.

¶ 55. The McCleary court aptly described the importance of the on-the-record explanation. Thus, I end where the Gallion court began:

In all Anglo-American jurisprudence a principal obligation of the judge is to explain the reasons for his actions. His decisions will not be understood by the people and cannot be reviewed by the appellate courts unless the reasons for decisions can be examined. It is thus apparent that requisite to a prima facie valid sentence is a statement by the trial judge detailing his reasons for selecting the particular sentence imposed.

Gallion, 270 Wis. 2d 535, ¶ 1 (quoting McCleary, 49 Wis. 2d at 280-81).

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       At the time of the sexual assault, Taylor was nineteen years old, and S.R. was fifteen years old. Taylor states in his brief that he was eighteen years old, but this statement is belied by the dates cited in the criminal complaint and other documents in the record, and by statements of Taylor's counsel at the sentencing hearing.

       On July 26, 2002, the Wisconsin Legislature enacted 2001 Wisconsin Act 109, which amended Wis. Stat. § 948.02(2) from a Class BC felony to a Class C felony. The act also amended the classification of felonies under Wis. Stat. § 939.50. Under the new statutory scheme, the penalty for a Class C felony is a fine not to exceed $100,000 or imprisonment not to exceed 40 years, or both. Wis. Stat. § 939.50(3)(c) (2003-04). The BC felony classification was repealed. The act did not take effect until February 1, 2003.

       At the time of the sexual assault, Taylor was sixteen years old, and K.A.H. was fourteen years old.

       According to the presentence investigation report (PSI) prepared prior to sentencing in Taylor's first sexual assault conviction, Taylor explained the situation differently to the Department of Corrections (DOC) agent. He stated that he and the victim had been dating from June 1998 through April 1999, and they began a sexual relationship in October 1998.

       The initial PSI was prepared on December 27, 2002, and later amended on March 7, 2003, after defense counsel requested that Taylor's family be contacted in preparation of the report, as opposed to relying on a PSI relating to Taylor's first conviction for second-degree sexual assault of a child.

       At the sentencing hearing, the court stated the DOC recommended eighteen and one-half years, as opposed to the correct recommendation of twelve years.

       According to the sentencing transcript, Taylor repeatedly argued with the court, at one point stating, "Fuck this shit." Once sentenced, Taylor stated, "I'll be back, bitch-ass punk." The court had the record reflect that the deputies took Taylor out of the courtroom after this latter outburst.

       Taylor argues that "this court should no longer search the record for evidence to support the trial court's sentence." We recently reaffirmed the standards of McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971). See State v. Gallion, 2004 WI 42, ¶ 76, 270 Wis. 2d 535, 678 N.W.2d 197 (quoting McCleary, 49 Wis. 2d at 277) ("Although we do not change the appellate standard of review, appellate courts are required to more closely scrutinize the record to ensure that 'discretion was in fact exercised and the basis of that exercise of discretion is set forth.'"). We note that because Taylor was sentenced a little less than a year before we released Gallion, its holding does not apply to this case. See id. ("[W]e reaffirm the standards of McCleary and require the application to be stated on the record for future cases.").
      Because our analysis resolves the question presented for review, we decline to review State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507, as being unnecessary to this opinion.

       Beyond these three primary factors, the sentencing court, within its discretion, may also consider the following factors:
      "(1) Past record of criminal offenses; (2) history of undesirable behavioral pattern; (3) the defendant's personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant's culpability; (7) defendant's demeanor at trial; (8) defendant's age, educational background and employment record; (9) defendant's remorse, repentance and cooperativeness; (10) defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention."

        State v. Harris, 119 Wis. 2d 612, 623-24, 350 N.W.2d 633 (1984) (quoting Harris v. State, 75 Wis. 2d 513, 519-20, 250 N.W.2d 7 (1977).

       Although the reported numbers vary, one source indicates that over 50 percent of adolescents are sexually active. Michelle Oberman, Girls in the Master's House: Of Protection, Patriarchy and the Potential for Using the Master's Tools to Reconfigure Statutory Rape Law, 50 DePaul L. Rev. 799, 809 (2001).

       This violation arose during Taylor's first encounter with S.R. at Smith's transitional living apartment, when a site check monitor stopped by and noted two 40-ounce bottles of beer in Smith's apartment.

       She further reported that Taylor brought her around $400 during the four months after he learned she was pregnant, but after they broke up, she has received nothing.

        Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981).

       "The legislature set the maximum penalty and the manner of its enforcement; the courts imposed an indeterminate term; and the executive branch, through the parole board, determined how much of that term was going to be served." State v. Gallion, 2004 WI 42, ¶ 28, 270 Wis. 2d 535, 678 N.W.2d 197.

       Early release options are restricted. See, e.g., Wis. Stat. § 973.195 (2003-04).


source: Caselaw Access Project

author: BROWN, J. ANDERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jeremy D. Russ, Defendant-Appellant.

    Court of Appeals

      Nos. 2004AP2869-CR, 2004AP2870-CR.

      Submitted on briefs September 29, 2005.

    Decided December 21, 2005.

    2006 WI App 9
    (Also reported in 709 N.W.2d 483.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Christopher G. Wren, assistant attorney general.
    Before Brown, Nettesheim and Anderson, JJ.

       Petition to review denied 3-15-06.

   BROWN, J.

¶ 1. This case concerns a deaf person, Jeremy D. Russ, who was shackled during his plea and sentencing hearing and claims that his restraints substantially impeded his ability to communicate by sign language. But such a bare allegation is not borne out by the record. Despite an invitation by the court to let it know if any communication problems ensued, he never expressed any difficulty. Moreover, at the post-conviction hearing, he never called his interpreters to the stand, never called his trial attorney, and did not take the stand himself. Rather, he merely called an expert in sign language to testify that, generally speaking, shackles can inhibit sign language communication. That will not do. Russ had the burden to show that he in fact was unable to communicate, not that he theoretically might have had such difficulty. The burden is on him, not the State, to prove a communication lapse. He has failed to meet his burden. We affirm on this issue as well as on a sentencing discretion issue.

2. This case has a long procedural history that need not be rehashed in this opinion. Suffice it to say, Russ had earlier been found to be incompetent due to being developmentally disabled. However, following a later contested competency hearing, he was found to be competent. Pursuant to a plea bargain, Russ agreed to plead guilty to one count of second-degree sexual assault and one count of lewd and lascivious exposure resulting from two separate complaints. Other counts were dismissed and read in.

¶ 3. At the plea hearing, Russ' counsel requested the court to order Russ' handcuffs removed so that he could sign and communicate if he had questions. The court denied the request, stating that based on its observations from prior hearings, Russ communicates adequately with his hands even while shackled. The court did say it would reconsider the issue, however, if it became apparent during the course of the hearing that Russ could not communicate effectively. Russ had two interpreters at the hearing, and through the interpreters the court engaged Russ in a plea colloquy. The court accepted the pleas, observing that Russ' responses through the interpreters were "proper and intelligent responses to each of my questions" and again opined that based on the court's observations at this hearing and others, Russ could sign appropriately.

¶ 4. Following a break, the court proceeded directly to sentencing. Defense counsel renewed her request to have Russ' handcuffs removed, and the court again denied that request. The court sentenced Russ to fifteen years' imprisonment on the sexual assault charge and further ordered that it be served consecutive to a Milwaukee county conviction that he was then serving. The court imposed an additional nine-month consecutive sentence for the lewd and lascivious conviction, along with a restitution order of $160 to the victim of that charge. Russ subsequently filed for postconviction relief, asserting that the use of handcuffs impeded his ability to communicate to such a degree that it prevented him from being effectively present at the proceedings, denied him the right to assistance of counsel, and denied him due process. He also claimed that the sentence was too harsh.

¶ 5. The court ultimately denied the motion in all respects. The court opined that it had taken proper account of Russ' background, including his deafness and mental status. It discounted the expert's testimony as purely theoretical in that her testimony had not demonstrated any link between her theoretical assertions and the actual facts of Russ' case. Russ appeals both issues. We will address the communication claim first and the sentencing discretion issue second.

USE OF SHACKLES ON A DEAF DEFENDANT

¶ 6. Russ asserts violations of three different rights: (1) his right to due process; (2) his right to be meaningfully present at the proceeding; and (3) his right to the assistance of counsel. A common theme he raises on all three grounds is the fact that he was handcuffed at the plea hearing and sentencing. He claims that because the court refused to remove his restraints, he was effectively rendered unable to communicate with his attorney and the interpreters in the courtroom. We are essentially left with the factual issue of whether his shackles did in fact hinder his ability to communicate at the plea and sentencing hearing. We note that Russ seems to argue that the State bears the burden of proof on this issue. He states, "Jeremy Russ should have no more obligation to prove he could not actually adequately communicate than a hearing and speaking person should have to prove that by wiring his jaws shut or gagging him, he could not adequately communicate."

¶ 7. Which party bears the burden of proof presents a question of law for our de novo review. Long v. Ardestani, 2001 WI App 46, ¶ 36, 241 Wis. 2d 498, 624 N.W.2d 405. Whether a party has met its burden also presents a question of law that we review independently. State v. Brown, 2005 WI 29, ¶ 37, 279 Wis. 2d 102, 693 N.W.2d 715. We consider several factors in allocating this burden, including, (1) the natural tendency to place the burden of proof on the party seeking to change the status quo; (2) special policy considerations, such as those disfavoring particular defenses; (3) convenience; (4) fairness; and (5) the judicial estimate of probabilities. See State v. Armstrong, 223 Wis. 2d 331, 349 n.21, 588 N.W.2d 606 (1999), modified, 225 Wis. 2d 121, 591 N.W.2d 604 (Nos. 97-0925-CR and 97-0926-CR). Three of these factors predominate here, and they weigh heavily toward imposing the burden on Russ. First, it is Russ who seeks to challenge the status quo by asking for resentencing. Second, convenience and fairness warrant assigning the burden to Russ. "A doctrine often repeated by the courts is that where the facts with regard to an issue lie peculiarly in the knowledge of a party, that party has the burden of proving the issue." See State v. McFarren, 62 Wis. 2d 492, 500, 215 N.W.2d 459 (1974) (citation omitted). This doctrine holds particularly true where the opposing party would have to prove a negative and where the fact to be proven relates personally to the accused. Id. at 500-01. Whether Russ attempted unsuccessfully to communicate with his counsel, his interpreters, or the court, relates personally to Russ and lies within his peculiar knowledge. Moreover, the State would have to prove a negative if we required it to show that Russ was never hindered in communicating with anyone. Cf. Cooper v. State, 565 N.W.2d 27, 29-31, 34 (Minn. Ct. App. 1997) (affirming conviction of a deaf defendant who claimed ineffective assistance of trial counsel for failure to use an interpreter at two-thirds of their pretrial meetings; noting that the defendant did not claim that he failed to impart any piece of information to his attorney).

¶ 8. State v. Yang, 201 Wis. 2d 725, 549 N.W.2d 769 (Ct. App. 1996), supports our conclusion. In Yang, the appellant contended that the trial court erred when it failed to make a determination that he had a language difficulty that hindered his ability to communicate with his attorney, to understand the proceedings, and to testify in English, such that he needed an interpreter. Id. at 728. In affirming the conviction, we placed particular emphasis on the testimony at the postconviction hearing: "Neither Yang's postconviction testimony nor that of trial counsel persuades us that the trial court's implicit finding that Yang could reasonably make himself understood in English is clearly erroneous." Id. at 739. We also noted that, "[t]he details he provided of his inability to communicate in English are few." Id. at 737-38.

¶ 9. We hold that Russ has failed to meet his burden. He called a single witness to testify at the October 19 postconviction hearing, and she was the sole witness to testify for either party. This witness was a deaf woman who used American Sign Language as her native language and taught college courses on ASL. She explained that four factors, namely, palm orientation, handshape, location, and movement, were critical to effectively communicating through sign language. She placed particular emphasis on location of the hands. "For example," she explained, "the signs for boy and girl respectively must each occur on the head. You cannot, for example, use the sign for boy and place it at chest level. It would not be understood." Signing space for ASL users, according to this witness, includes the space "roughly between the pelvis and the top of the head, and then a few feet out from the signer's body." She opined that communication would be limited and difficult if a deaf person who used sign language were handcuffed and that in her experience, conversations with people in handcuffs were very stilted and frustrated: "I saw people going through great lengths to try to deliver a message that was always never completely free and good and accurate communication — but always had some level of difficulty." She further opined that trying to communicate with someone whose first language is not ASL would be "almost impossible." When asked whether she could give an opinion as to whether Russ had been able to sign adequately while shackled during the plea and sentencing hearing, however, she responded that she could not because she had not been there.

¶ 10. As the trial court observed, the expert's testimony — the only evidence presented at the postcon-viction hearing — was purely theoretical. It established that Russ could have had a very difficult time communicating information to others in the courtroom. Russ, however, must prove that he was actually prevented from effectively communicating. Russ presented no evidence that the shackles hindered him from imparting any particular piece of information or from directing questions to anybody in the courtroom. Neither his trial counsel nor the interpreters took the stand to attest to their inability at any point during sentencing to understand Russ; nor did Russ give any testimony of his own. Moreover, despite the court's invitation to let it know if the restraints prevented Russ from communicating adequately, Russ never notified the court of any such difficulty either personally or through counsel.

¶ 11. Russ contends that although the State "defends the trial court's conclusion that Russ' arguments are nothing but 'theory'. . . the Supreme Court was not troubled by 'theory' in its just released decision about the shackling of a defendant during the sentencing phase of a capital murder trial. Deck v. Missouri, [544 U.S. 622, 125 S. Ct. 2007 (2005)]." Russ' reliance on Deck is misplaced. Although the court did comment that shackles could interfere with the right to communicate with counsel, see id. at 2013, this observation was dicta and not the reason the court vacated the sentence. Rather, the court was primarily concerned with the prejudicial effect of shackles. See id. at 2014. Deck involved the use of shackles in the presence of a jury in the sentencing phase of a capital murder case. See id. at 2009-10. Here there was no jury that the use of shackles could have prejudiced.

¶ 12. We wish to emphasize that we base our holding solely on Russ' failure to meet his burden of proof, not on the trial court's assessment of Russ' ability to communicate based on its personal observations in the courtroom. Although we considered such evidence relevant to our decision in Yang, see Yang, 201 Wis. 2d at 739, in that case the trial court heard Yang speak in English, a language the court understood. Nothing in the record indicates that the court here understood Russ' sign language. All communication was filtered through interpreters. Thus, however appropriate and intelligent his responses may have seemed, the court had no way of knowing whether they were, in fact, responses to what the court actually said. Anything could have been lost in the translation, and the court was in no position to discern where any disconnect may have occurred.

ALLEGATION OF MISUSE OF SENTENCING DISCRETION

¶ 13. Russ also asserts that the court erroneously exercised its discretion in imposing sentence. He complains that it imposed a harsh sentence and did not adequately explain its reasons for the sentence, as required by State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197. We disagree.

¶ 14. This court observes a strong policy of deferring to the sentencing discretion of a trial court, presuming the sentence to be reasonable unless the defendant can demonstrate from the record that the court acted unreasonably. State v. Mosley, 201 Wis. 2d 36, 43, 547 N.W.2d 806 (Ct. App. 1996). The sentencing court must address three primary sentencing factors, namely, the nature of the offense, the offender's character, and the need to protect the public, and may also consider any other relevant factors. See State v. Harris, 119 Wis. 2d 612, 623-24, 350 N.W.2d 633 (1984). The sentencing court has the discretion to balance the various factors as it sees fit. State v. Jones, 151 Wis. 2d 488, 495, 444 N.W.2d 760 (Ct. App. 1989). The court must, however, explain the reasons for the particular sentence it imposes, providing a "rational and explainable basis" therefor. Gallion, 270 Wis. 2d 535, ¶¶ 39, 76 (citations omitted). The "rational and explainable basis" requirement allows this court to ensure that discretion was in fact exercised. See id., ¶ 76.

¶ 15. In explaining its rationale for these sentences, the court noted that the offenses were dangerous, violent offenses. Russ had grabbed two different women in a park and fondled them while they struggled to get free. These incidents occurred within days of each other. Moreover, it considered that Russ' illegal behavior in the cases before the court spanned from a period of 1996 through at least September of 2001. The court found several factors particularly important. First, it mentioned the nature of the offenses and described the first of the assaults. It analyzed that incident as follows: "That's not a haphazard or an incidental contact. It's using force. It's using violence to maintain control of a woman. Similar type conduct is described in Count Two which occurred also at Frame Park." It then went on to recount the second incident and concluded, "That, too, is a violent, assaultive contact with a stranger in a park. It's not an incidental contact. It clearly wasn't meant to be a mistaken approach in an attempt to be friendly. It's assaultive. It's dangerous. It reflects poorly upon your character, two incidents within several days." Commenting further on Russ' character and the community's need for protection, the court observed Russ' impulsiveness.

From everything that the Court knows about you, you're impulsive. You're not able to control your emotions, unable to control your desires.
You deal with yourself, what your own needs are without regard to what is in the community, what community norms are ....
Clearly, the community needs to be protected from you. It needs to be protected from the assaultive nature, from your inability to take care of yourself and to beha[ve]. Just to operate as a civil person in a park, to operate civilly, and within the norms of society of any place that you happen to be.

¶ 16. The court also expressed concern for Russ' rehabilitation but noted that any such rehabilitation was primarily Russ' responsibility and would have to occur in a controlled setting. "Society can do its part to rehabilitate you and give you the opportunities to make changes," the court explained, "But while that's happening, society has to know that you're not on the streets. You're not in a position to be assaultive and to conduct yourself violently toward others .... It's clear that you are unable to function in society without having severe controls which are only available within an incarcerated setting." In discussing Russ' impulsive nature, the court noted that it was taking into account Russ' background, which it had read in the various psychological reports it had received and which included "deprivations [Russ] may have suffered earlier in life." The court explained that it made the sentences consecutive for several reasons, including protection of the community, the nature of the offenses, and the fact that each offense was separate:

I've made each of these sentences consecutive, first, because they are separate offenses. They are separate incidents, separate dangerous incidents, for which there must be separate punishment. A concurrent sentence on any of these matters diminishes the seriousness of what's occurred and diminishes the protection the public will have from your future conduct.

¶ 17. Contrary to Russ' claim that nowhere in the record did the court explain why a sentence of fifteen years would promote its goal of rehabilitation while protecting the public, the court did explain its rationale. It clearly stated that concurrent sentences would unduly diminish the seriousness of the offenses as well as public protection. We also reject Russ' implicit argument that a sentencing court must explain with mathematical precision why it chose the specific number of years. The court did not have to explain why twelve years would not do and why fifteen would. As we recently indicated in State v. Fisher, 2005 WI App 175, ¶¶ 21-22, 285 Wis. 2d 433, 702 N.W.2d 56, defendants are not entitled to this degree of specificity. Indeed, we noted that even in Gallion the supreme court had upheld a sentence in which the sentencing judge had not specifically explained how the factors before the court translated into a specific number of years. See Fisher, 702 N.W.2d 56, 21-22; Gallion, 270 Wis. 2d 535, ¶¶ 53-55. We affirm on this issue.

By the Court. — Judgments and order affirmed.

ANDERSON, J.

¶ 18. (concurring). I fully agree with the majority opinion. I write separately to register some added concerns about the practice of routinely shackling or otherwise physically restraining defendants when they appear before a judge or jury.

¶ 19. Before fleshing out these concerns, I wish to stress my understanding of the reasons behind Wauke-sha county's policy of routinely shackling defendants. The violent courtroom incidents that have taken place in Waukesha county, elsewhere in the State, and across the country have served as reminders that trial judges often will need to take some sort of action to protect the jury, the courtroom personnel, the spectators, the defendants and the judges themselves. See Lisa Sink, Fight costs Amaro bid for parole, Milwaukee J. Sentinel, August 15, 2000, available at http://www.jsonline.com/ news/wauk/aug00/parolel6081500a.asp (discussing "[o]ne of Waukesha County's most notorious criminals," Filemon Amaro Jr., who shot and killed two sheriffs deputies while appearing before Judge Neal Nettesheim in 1978); Gina Barton, Ex-Deputy shot by defendant sues, Milwaukee J. Sentinel, April 18, 2005, available at http://www.jsonline.com/news/metro/apr05/319429.asp (exploring 2002 incident where the defendant, after being convicted of homicide and armed robbery, leapt into the jury box and gained control of a security officer's gun before being fatally shot by a police detective); Tom Kertscher, Judge calls for talks on whether guns should be banned in court, Milwaukee J. Sentinel, May 29, 2002, available at http://www.jsonline.com/ news/metro/may02/47183.asp (citing several instances of courtroom violence in Milwaukee area history); Atlanta courthouse killer hunted, March 11, 2005, available at http://www.jsonline.com/news/nat/mar05/ 308964.asp (discussing a March 2005 incident at an Atlanta courthouse where a rape suspect overpowered a sheriffs deputy and used her gun to kill a judge, a court reporter and a second sheriffs deputy). Bearing in mind the tragedy that can result if judges do not have the ability to protect themselves and their courtrooms, see Deck v. Missouri, 125 S. Ct. 2007, 2014 (2005), I turn to the problems that accompany the decision to physically restrain defendants on a routine basis.

¶ 20. Courts have recognized the danger to a criminal defendant in being required to appear before a jury in physical restraints. See id. at 2012-13 (discussing "judicial hostility to shackling"). In particular, courts have found that the appearance of the defendant in restraints would prejudice the jury, causing jurors to believe that the person was dangerous thereby impairing the presumption of innocence. See Illinois v. Allen, 397 U.S. 337, 344 (1970); United States v. Zuber, 118 F.3d 101, 103 (2d Cir. 1997); Duckett v. Godinez, 67 F.3d 734, 747 (9th Cir. 1995).

¶ 21. Thus, in order to comport with due process, courts have held that the presiding judge must engage in a two-step process before approving the use of physical restraints on a defendant in a jury trial. See Zuber, 118 F.3d at 103; Duckett, 67 F.3d at 748. First, a presiding judge must perform an independent evaluation of the need to restrain the party for purposes of maintaining security and order in the courtroom. See Zuber, 118 F.3d at 103; Duckett, 67 F.3d at 748. This independent evaluation may require an evidentiary hearing. See Zuber, 118 F.3d at 103. Second, where restraints are deemed necessary, the presiding judge must take steps to limit their prejudicial effect, including a consideration of less restrictive alternatives. See id.; Duckett, 67 F.3d at 748; Spain v. Rushen, 883 F.2d 712, 721 (9th Cir. 1989). Some courts have held that these requirements apply with equal force in the context of jury sentencing — that is, where juries perform the task of imposing or recommending a particular sentence. See Zuber, 118 F.3d at 103; Duckett, 67 F.3d at 746-47. See also Deck, 125 S. Ct. at 2014-15 (holding "courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding"). Courts, however, have declined to extend the rule requiring an independent, judicial evaluation of the need to restrain a party in court to the context of nonjury sentencing proceedings. See Zuber, 118 F.3d at 104. This is in part because juror bias constitutes the paramount concern justifying these requirements and we traditionally assume that trial judges, unlike juries, are not prejudiced by impermissible factors. See id.

¶ 22. However, the possibility that jurors will be prejudiced by the presence of physical restraints is not the sole rationale for placing strict limitations on their use in court. Courts have offered numerous reasons for holding that defendants should be in physical restraints only in extraordinary cases. They include:

(1) Physical restraints may cause jury prejudice, reversing the presumption of innocence;
(2) Shackles may impair the defendant's mental faculties;
(3) Physical restraints may impede the communication between the defendant and his [or her] lawyer;
(4) Shackles may detract from the dignity and decorum of the judicial proceedings; and
(5) Physical restraints may be painful to the defendant.

Spain, 883 F.2d at 721 (citation omitted). These concerns, with the exception of the first, are all potentially present when a defendant appears in court before a trial judge. This is especially true in a case such as the one before us here where a defendant is physically or mentally handicapped.

¶ 23. In light of these additional concerns, I suggest that physically restraining a defendant regardless of whether he or she is appearing before a judge or a jury should be the exception, saved only for extraordinary cases, rather than the rule. See Allen, 397 U.S. at 344 (shackles should only be used as a "last resort"). I encourage trial judges to exercise discretion in ordering a defendant to be physically restrained not only during a trial, but also during plea taking and sentencing. In the exercise of their discretion, judges should assess the extent of the limitations that would be present if restraints were applied, taking into consideration all of the potential problems listed above, and then weigh the benefits and burdens of restraining against other possible less restrictive alternatives. See Spain, 883 F.2d at 721. An approach such as this, where the particularities of each individual case are assessed, strikes the proper balance between maintaining the safety and security of those in the courtroom and upholding the defendant's constitutional rights.


author: HIGGINBOTHAM, J.

text:
    Jennifer Switzer, Petitioner-Appellant, v. Jonathan C. Switzer, Respondent-Respondent.
    Court of Appeals

      No. 2004AP2943.

      Submitted on briefs June 14, 2005.

      Decided December 22, 2005.

    2006 WI App 10
    (Also reported in 709 N.W.2d 871.)

      On behalf of the petitioner-appellant, the cause was submitted on the brief of Christopher J. McKinny of Legal Action of Wisconsin, Inc., Oshkosh.
    No brief was filed on behalf of the respondent-respondent.
    Before Lundsten, EJ., Vergeront and Higginbotham, JJ.
   HIGGINBOTHAM, J.

¶ 1. Jennifer Switzer appeals an order denying her motion for reconsideration of an order denying her request for an extension of a domestic abuse injunction entered against her estranged husband, Jonathan C. Switzer. Jonathan failed to file a responsive brief. For the reasons we discuss in this opinion, we reverse and remand for the circuit court to extend the injunction entered against Jonathan for a period consistent with Jennifer's request in her motion for reconsideration.

BACKGROUND

¶ 2. Because the chronology of events is important to the resolution of this case, we set them out in length. On February 3, 2004, Jennifer filed a petition for a domestic abuse temporary restraining order and injunction, pursuant to Wis. Stat. § 813.12 (2003-04), seeking protection from her husband. In her petition, Jennifer stated under oath she was "in imminent danger of physical harm" and attached a two-page statement of facts referencing numerous past acts of abuse perpetrated by Jonathan against her and the couple's minor children. She requested the standard remedies under the domestic abuse statute, including an injunction. However, Jennifer did not indicate on the petition the period of time she wished to have the injunction in effect. The circuit court issued an order granting Jennifer's request for a temporary restraining order and scheduled a hearing on the petition for an injunction.

¶ 3. The circuit court held the injunction hearing on February 13, 2004; both Jennifer and Jonathan appeared by phone, pro se. Jonathan admitted engaging in acts of domestic abuse against Jennifer and both parties expressed a desire to divorce. The circuit court spent a great deal of time discussing its preference that the parties obtain a restraining order pursuant to a divorce rather than through a domestic abuse injunction. The circuit court orally granted the domestic abuse injunction; a written order was filed later that day.

¶ 4. Because Jennifer appeared telephonically at the injunction hearing, she did not immediately receive a copy of the order. When she eventually received a copy, it contained two provisions never discussed at the February 13, 2004 hearing: the injunction was to be effective until "2/13/2008 or 90 days if no divorce is filed" and the surrender-of-firearms provision in a standard injunction order form was crossed out. Jennifer did not appeal this order.

¶ 5. On May 13, 2004, Jennifer filed a written request with the circuit court to extend her domestic abuse injunction for an additional sixty days to allow her more time to file for divorce. Once again, on a standard form, the circuit court granted her request that same day and her injunction was extended until July 11, 2004. The standard Order Extending Injunction form provided that "[t]he original terms of the injunction remain in full force and effect" and that "[t]he petitioner shall notify the respondent of this extension." Copies of the extension order were sent to both Jennifer and Jonathan.

¶ 6. Jennifer continued to experience problems with filing her divorce papers and eventually sought representation from Legal Action of Wisconsin, Inc. In early July 2004, Legal Action agreed to represent Jennifer. In a letter to the circuit court dated July 9, 2004, Jennifer's attorney, Christopher McKinny, asked that the domestic abuse injunction be extended for the full four-year period (until February 13, 2008) due to continuing safety concerns for Jennifer and her children.

¶ 7. On July 29, 2004, Jennifer moved for reconsideration of the circuit court's denial of her request for an extension of the injunction. As grounds for this motion, Jennifer alleged that:

a. The extension is necessary for the protection of the victim. According to § [813.12(4)(c)2.], Wis. Stats., "[w]hen an injunction granted for less than 4 years expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect him or her."
b. The petitioner's original request was for a four[-] year restraining order. According to § [813.12(3)(aj)], Wis. Stats., "[t]he judge or circuit court commissioner may grant only the remedies requested ...."
c. While § [813.12(4)(a)2.], Wis. Stats, generally requires the petitioner to notify and serve upon the respondent the injunction "petition and notice of the time for hearing on the issuance of the injunction," § [813.12(4)(c)4.], Wis. Stats, states that "[n]otice need not be given to the respondent before extending an injunction under subd. 2. The petitioner shall notify the respondent after the court extends an injunction under subd. 2." This is exactly the situation in the case at hand.
d. The petitioner has taken the steps to initiate a divorce proceeding against the respondent in Marquette county. This office will be representing her in that action.

A hearing on the motion for reconsideration was held on August 16, 2004.

¶ 8. On August 24, 2004, the circuit court sent a letter to Jennifer's attorney saying

You persist in filing ex-parte requests in this matter. Your July 9, 2004 letter was not copied to the other party; it made no request for a hearing and no notice was provided to respondent.
Now, your motions have been filed, after the injunction expired. The Court has lost personal jurisdiction over the person of Jonathan Switzer.
Your draft order is being returned and will not be accepted ex-parte.

Following Jennifer's request for a final order denying her motion for reconsideration, the court entered a written order on September 23, 2004, dismissing the action and dissolving the injunctio^i; the court also denied Jennifer's motion, thereby denying her July 9, 2004 request for an extension of her domestic abuse injunction. The circuit court concluded that it lost personal jurisdiction over Jonathan because the first order extending the injunction had expired prior to "any further extension [being] duly moved . . . Jennifer filed a notice of appeal on November 5, 2004.

DISCUSSION

¶ 9. Jennifer argues the circuit court erred in the following ways: (1) by limiting the injunction to ninety days if she did not file for divorce within ninety days of issuing the injunction; (2) by failing to include in the injunction order a surrender-of-firearms provision as required by Wis. Stat. § 813.12(4m)(a)2.; and (3) by denying her request for an extension of the domestic abuse injunction because, under § 813.12(4)(c)2., the court shall, upon the petitioner's request, extend a domestic abuse injunction up to four years from the date of issuing the injunction, even after the injunction has expired.

¶ 10. We conclude that because Jennifer failed to timely appeal the February 13, 2004 injunction order, we lack jurisdiction to consider whether the circuit court erred by limiting the injunction to ninety days if Jennifer did not file for divorce within ninety days of issuing the injunction. We also conclude that because Jennifer failed to timely appeal the May 13, 2004 order extending the injunction, which incorporated by reference all terms and conditions imposed in the original injunction, including the deletion of the firearms prohibition provision, we lack jurisdiction to consider that issue. However, because Wis. Stat. § 813.12(4)(c)2. requires a circuit court to extend an injunction if a petitioner states an extension is necessary for her or his protection and if the first injunction was granted for less than four years and has expired, we conclude the circuit court erred by denying Jennifer's motion for reconsideration.

Standard of Review

¶ 11. All the issues before us involve the interpretation of Wis. Stat. § 813.12, Wisconsin's domestic abuse restraining order and injunction statute. Issues of statutory interpretation are questions of law subject to our de novo review. Hayen v. Hayen, 2000 WI App 29, ¶ 6, 232 Wis. 2d 447, 606 N.W.2d 606. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. In construing a statute we are to give deference to the policy choices made by the legislature in enacting the law. See id. To that end, if the statutory language is plain and unambiguous we apply the statute by giving it its usual and common meaning. Id., ¶ 45. We begin by considering Jennifer's third argument that the circuit court erred by denying her July 9, 2004, request to extend the domestic abuse injunction.

Jennifer's Request to Extend the Domestic Abuse Injunction After Expiration of that Injunction

¶ 12. Jennifer argues the circuit court erred by denying her July 9, 2004, request for an extension of the domestic abuse injunction. She contends the circuit court wrongly concluded it had no authority to grant an extension after the injunction expired. We agree.

¶ 13. We address Jennifer's contention by first reviewing Wis. Stat. § 813.12(4)(c)2., which states "When an injunction granted for less than 4 years expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect him or her. This extension shall remain in effect until 4 years after the date the court first entered the injunction." Jennifer asserts that under the clear and unambiguous language of § 813.12(4)(c)2., the circuit court was required to extend the injunction, even after it expired. We conclude the only reasonable interpretation of § 813.12(4)(c)2. supports Jennifer's contention.

¶ 14. To better understand what Wis. Stat. § 813.12(4) (c)2. requires of a circuit court, we itemize its elemental parts: (1) When an injunction granted for less than four years expires; (2) the court shall extend the injunction if (3) the petitioner states that an extension is necessary to protect him or her. In addition, upon the petitioner's request, a circuit court shall extend an injunction for no more than four years after the date the court first entered the injunction. Wis. Stat. § 813.12(4)(c)2. Put another way, if the initial injunction was for less than four years, but expired, and a petitioner states that an extension is necessary to protect him or her, the court shall extend the injunction for up to four years from the date the injunction was first granted.

¶ 15. The plain language of the statute expresses the legislature's intent to cloak victims of domestic abuse with substantial protection by creating "procedural mechanisms ... to alleviate the inherent problem of preventing further abuse .. .." Schramek v. Bohren, 145 Wis. 2d 695, 711, 429 N.W.2d 501 (Ct. App. 1988). One of these mechanisms is the option of obtaining an injunction for up to four years at an initial injunction hearing. See Wis. Stat. § 813.12(4)(c)1. However, in those instances when a victim, for whatever reason, decides at the injunction hearing to forego the full four years, under this statutory framework a victim may return to court and obtain an extension for up to the remaining four years. See Wis. Stat. § 813.12(4)(c)2. This is so even where the injunction has expired. This statutory scheme affords victims flexibility by tailoring the initial injunction to fit their own unique circumstances at the time; the degree of risk he or she perceives at the initial injunction hearing may not warrant a four-year injunction. On the other hand, should those circumstances change such that longer protection is required, victims may, by simply requesting in a letter or other writing, obtain an injunction for up to the duration they were initially entitled to receive.

¶ 16. There is a second reason why our construction of Wis. Stat. § 813.12(4) (c)2. is the only reasonable one. There is no requirement in § 813.12(4)(c)2. that the request must be made before an injunction for less than four years expires. The statute says "When an injunction ... expires . . . ." Thus, § 813.12(4)(c)2. clearly and unambiguously requires the circuit court to grant a request to extend an injunction granted for less than four years, assuming all other requirements are met, even when the request is submitted after the injunction expires.

¶ 17. Applying our analysis of Wis. Stat. § 813.12(4)(c)2. to this case, we see that the circuit court entered the initial injunction on February 13, 2004. The injunction was effective until "2/13/2008 or 90 days if no divorce is filed ...." In other words, unless Jennifer filed for divorce within ninety days of the injunction order, the injunction would expire. Setting aside for the moment the erroneous nature of this order (the circuit court lacked the authority to make the four-year injunction conditional on Jennifer filing a divorce action within ninety days of the injunction order, see Hayen, 232 Wis. 2d 447, ¶ 19), this injunction was granted for less than four years. Thus, should Jennifer request an extension under § 813.12(4)(c)2., the circuit court would be required to grant the extension for any duration up to four years from the date the injunction was first granted; here, the injunction could be extended to February 13, 2008.

¶ 18. On May 13, 2004, Jennifer did request an extension, but only for another sixty days to allow her time to file a divorce action before the injunction expired. She again did not file for divorce. Then, in a letter from her attorney dated July 9, 2004, Jennifer requested another extension for the full four years, until February 13, 2008.

¶ 19. According to our analysis of Wis. Stat. § 813.12(4)(c)2. the circuit court was required to grant Jennifer's July 9, 2004, extension request. The initial injunction was granted on February 13, 2004; the July 9, 2004, request was made well within the four-year period as required by statute and was for a period not exceeding four years, the same amount of time Jennifer would have been automatically entitled to had she so requested at the February 13 hearing. In addition, Jennifer informed the court in the July 9, 2004 letter that the extension was necessary for her protection. Finally, assuming that Jennifer's extension request was received by the circuit court after the first extension expired on July 11, 2004, the circuit court was still required under § 813.12(4)(c)2. to grant the extension.

¶ 20. However, the circuit court denied Jennifer's request to extend the injunction because, in its view, it no longer had personal jurisdiction over Jonathan because the request was made after the injunction expired. But in applying Wis. Stat. § 813.12(4)(c)2. to these facts, we perceive no reason why the expiration of the injunction caused the circuit court to lose personal jurisdiction over Jonathan. In our view, it is not a question of whether the court had personal jurisdiction over Jonathan, but whether the circuit court had the statutory authority to grant the extension after it expired. Because we conclude a circuit court is required under § 813.12(4)(c)2. to extend an injunction under the proper circumstances, even after it has expired, it follows that a court has the authority to grant an extension request after the injunction has expired.

The Duration of the Domestic Abuse Injunction

¶ 21. Jennifer makes two arguments in support of her contention that the circuit court improperly limited the duration of her domestic abuse injunction to "2/13/2008 or 90 days if no divorce is filed...." First, she contends that under Wis. Stat. § 813.12(4)(aj) the circuit court is required to grant the remedies requested by the petitioner and that under § 813.12(4)(c)l., the court is required to grant an injunction for the period of time requested by the petitioner, up to four years. According to Jennifer, she believed she requested a four-year injunction when she filed her injunction petition. Second, Jennifer contends that by effectively forcing her to seek injunctive relief in a divorce proceeding under Wis. Stat. ch. 767, the circuit court erred by mixing "divorce relief with remedies designed specifically to end abuse . . . ." Hayen, 232 Wis. 2d 447, ¶19 (citation omitted). Although we agree there is merit to both contentions, we conclude that because Jennifer failed to timely appeal this issue, we have no jurisdiction to address it.

¶ 22. The circuit court granted the first injunction on February 13, 2004. Jennifer was required to appeal any objections to that order within ninety days of the order. See Wis. Stat. §§ 808.04(1) and 809.10(l)(e). Jennifer did not. The notice of appeal filed on November 5, 2004, related to the circuit court's denial of her motion for reconsideration, entered on September 23, 2004. Consequently, we cannot consider the objection Jennifer makes here.

Striking the Surrender-of-Firearms Provision in the Injunction Order

¶ 23. Jennifer next argues the circuit court erred by crossing out the surrender-of-firearms provision in the standard form on which the injunction order was written. Under Wrs. Stat. § 813.12(4m)(a)2. a domestic abuse injunction shall contain a provision requiring the domestic abuser to surrender his or her firearms, in the absence of two exceptions not applicable here. We cannot, however, address Jennifer's argument because she failed to timely appeal the circuit court's May 13, 2004 order granting her request to extend the injunction for sixty days.

¶ 24. Before we explain why we have no jurisdiction to decide this question, we first determine which order Jennifer should have timely appealed. The first injunction was entered on February 13, 2004; on that standard form the surrender-of-firearms provision was crossed out. On May 13, 2004, the circuit court extended the February 13 injunction for sixty days; the order was also issued on a standard form that contained other provisions, which incorporated by reference all terms and conditions of the first injunction order, including the crossed-out surrender-of-firearms provision. Because the May 13 order also included by reference the crossed-out surrender-of-firearms provision from the February 13 order, we conclude Jennifer was required to file a notice of appeal within ninety days of May 13, 2004, indicating her objection to the striking of that provision.

¶ 25. However, Jennifer filed her notice of appeal on November 5, 2004. According to Wis. Stat. §§ 808.04(1) and 809.10(l)(e), Jennifer was required to file a notice of appeal of the circuit court's May 13, 2004 order within ninety days of the order. Because Jennifer failed to file a notice of appeal within that time period, we lack jurisdiction to consider the question presented here.

By the Court. — Order reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Jennifer's attorney, McKinny, asserts that he called the county courthouse on July 27, 2004, to inquire about the status of Jennifer's request to extend the domestic abuse injunction. He also asserts that during that phone call he was told that because the request for an extension was filed "ex parte," the circuit court refused to acknowledge it. Although this assertion is not part of the record, we note this assertion to place the chronology of events in proper context.

       Jennifer also contends the circuit court erred by rejecting her July 9, 2004 request to extend the injunction on the basis that Jonathan failed to receive notice of her request and because no hearing was held. We observe that the circuit court did not include these grounds in its September 23, 2004 final order denying Jennifer's motion for reconsideration. However, we note that Wis. Stat. § 813.12(4)(c)4. expressly states "[n]o-tice need not be given to the respondent before extending an injunction under subd. 2. The petitioner shall notify the respondent after the court extends an injunction under subd. 2." (Emphasis added.) Thus, according to the clear and unambiguous text of this section, a petitioner is not required to provide the respondent any notice that an extension of an injunction is being sought; the only notice the respondent is entitled to receive under this section shall be provided after the court extends the injunction.

       WISCONSIN Stat. § 813.12(4)(c)l. provides:

        An injunction under this subsection is effective according to its terms, for the period of time that the petitioner requests, but not more than 4 years. An injunction granted under this subsection is not voided if the petitioner allows or initiates contact with the respondent or by the admittance of the respondent into a dwelling that the injunction directs him or her to avoid.
      (Emphasis added.)

       A circuit court obtains personal jurisdiction over a respondent in a Wis. Stat. § 813.12 proceeding when an action is commenced and a respondent is served pursuant to § 813.12(2).

       Wisconsin Stat. § 813.12(4) (aj) provides:
      In determining whether to issue an injunction, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested by the petitioner. The judge or family [circuit] court commissioner may not dismiss or deny granting an injunction because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.
      (Emphasis added.)

       Although we do not decide this issue, we direct the circuit court's attention to Wis. Stat. §§ 813.12(4)(aj) and (4)(c)l, which provide, respectively, that a circuit court "may grant only the remedies requested by the petitioner" and that "[a]n injunction ... is effective according to its terms, for the period of time that the petitioner requests, but not more than 4 years." In other words, the circuit court shall grant the remedies requested by a petitioner under Wis. Stat. § 813.12, including an injunction for no longer than four years. Occasionally, petitioners will forget to specify how long they wish for the injunction to be in effect. In that instance, we recommend the circuit court establish the time period of the injunction by asking the petitioners at the injunction hearing how long they desire it.
      We also note that under Hayen v. Hayen, 2000 WI App 29, ¶19, 232 Wis. 2d 447, 606 N.W.2d 606, we said "the determinations made and the relief granted under § 813.12 ... are separate and distinct from determinations and relief under ch. 767...." In other words, a circuit court shall avoid mixing "divorce relief with remedies designed specifically to end abuse . ..." Id. (citation omitted).

       Wisconsin Stat. § 808.04(1) states in pertinent part:

        Initiating an appeal. An appeal to the court of appeals must be initiated within 45 days of entry of a final judgment or order appealed from if written notice of the entry of a final judgment or order is given within 21 days of the final judgment or order as provided in s. 806.06(5), or within 90 days of entry if notice is not given....
      (Emphasis added.)

       Wisconsin Stat. § 809.10(l)(e) provides: "Time for filing. The notice of appeal must be filed within the time specified by law. The filing of a timely notice of appeal is necessary to give the court jurisdiction over the appeal."

       Wisconsin Stat. § 813.12(4m) provides, in relevant part:
      Notice of restriction on firearm possession; surrender of firearms. (a) An injunction issued under sub. (4) shall do all of the following:
      1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29.

        2. Except as provided in par. (ag), require the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29(4).
      (ag) If the respondent is a peace officer, an injunction issued under sub. (4) may not require the respondent to surrender a firearm that he or she is required, as a condition of employment, to possess whether or not he or she is on duty.
      (Emphasis added.)