Opinion
No. State 170.
Submitted under sec. (Rule) 251.54 April 3, 1974. —
Decided June 4, 1974.
ERROR to review a judgment of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. Affirmed.
The cause was submitted for the plaintiff in error on the brief of John D. Murray and Coffey, Murray Coffey, all of Milwaukee, and for the defendant in error on the brief of Robert W. Warren, attorney general, and Charles R. Larsen, assistant attorney general.
Facts.
The writ of error in this case was issued to review a judgment of conviction and a sentence of five years' imprisonment on a charge of operating a motor vehicle without the owner's consent, contrary to sec. 943.23, Stats. The principal witness for the state, a twenty-two-year-old woman, testified that she had met the defendant in a Milwaukee tavern and agreed to drive him to his home. He told her to drive into a garage located near North 27th and West Brown Streets. She did not do so. She drove away from the area of the garage. The defendant, Jan Lowell Korpela, directed her to stop driving and move over into the passenger seat of the car or he would throw her into the back seat. she testified that she did as directed because she was frightened. She testified that she told defendant she was able to drive, but that he told her he did not want her to see where they were going. Defendant then took the wheel and drove the car a few blocks to a vacant lot where he stopped the car. She testified that he then told her, in profane language, that he was going to commit an act of sexual intercourse. Both the witness and the defendant got out of the car. Either shortly before or shortly after they got out of the car, the witness testified that the defendant stated he was sorry but he would have to kill her. She testified that he then began to choke her and at the same time tried to remove her clothing. She screamed. She heard a woman's voice call out, "What's going on out there?" Thereupon the defendant released the witness, and she ran from the scene. She heard the motor of her car start and saw the car leave the area. The car was later found about nine blocks away, locked with the keys missing.
Originally the defendant was charged with attempted rape and operating an automobile without the owner's consent. Under a plea-bargained agreement, the attempted rape charge was reduced to two misdemeanor charges to which the defendant pleaded guilty. Under the plea-bargained agreement, the defendant pleaded not guilty to the charge of operating an automobile without the owner's consent but waived jury trial on that charge. Following trial to the court, the defendant was found guilty of operating an automobile without the owner's consent and sentenced to five years' imprisonment. The writ of error was issued on June 14, 1973, to review this conviction and sentence.
The writ of error challenges only the finding of guilt and the sentence imposed on the charge of operating a vehicle without the owner's consent.
The plaintiff in error contends that the evidence is insufficient to establish that he operated an automobile without the owner's consent. The challenge to the judgment of conviction on that basis fails. Particularly as to the operating of the automobile involved, following the incident in the vacant lot, the evidence clearly establishes that such operation was without the owner's consent. The plaintiff in error contends that he had an initial permission to operate the vehicle which continued after the stop in the vacant lot. The facts clearly refute such implied continuing permission. He had not only told the complaining witness that he was going to have sexual intercourse with her, but also that he was going to kill her. According to her testimony, he then began to choke her. When her screams were heard by a resident who called out, "What's going on out there?", the plaintiff in error let go of the complaining witness and she ran. She heard the motor of her car start and saw the car drive away. It is true that there is no direct testimony that the plaintiff in error did the driving, but he had the keys to the car and was on the scene. He had stopped choking the complaining witness only after her screams had attracted the attention of a nearby resident. It is an entirely reasonable inference, under the circumstances here, that the plaintiff in error did operate the automobile, using it to escape from the scene, and it is the only reasonable inference that he did so without the consent of the owner. If he had permission to operate the vehicle earlier, and we do not so hold, any such permission did not survive the vacant lot assault. The judgment of conviction on the charge of operating a vehicle without the owner's consent is affirmed.
The plaintiff in error contends that the five-year sentence imposed by the trial court was excessive and represents an abuse of trial court discretion in the sentencing process. (Sec. 943.23, Stats, provides that one who operates a vehicle without the owner's consent may be fined not more than $1,000 or imprisoned not more than five years, or both.)
However, the record here reveals no motion made before the trial court for reduction of sentence on the ground of excessiveness or abuse of discretion. Such motion to reduce sentence must be filed in the trial court within ninety days of sentencing, and ". . . [f]ailure to make such motion bars a defendant from raising an issue as to sentencing within statutory limits except under compelling circumstances. . . ." As a matter of right, review of an alleged abuse of discretion in sentencing is not available on an appeal to this court ". . . where an appropriate motion for reduction of sentence has not been made. . . ." Earlier cases make clear this requirement for an initial motion to the trial court to review a sentence and the consequence that ". . . failure to present a motion at the trial court level to review a sentence bars the defendant from raising a question of impropriety as to sentence except under compelling circumstances. . . ." The statement in one case that ". . . the requirement that a motion be made to the trial court to correct a sentence deemed excessive or imposed with an abuse of discretion is unnecessary to preserve such question for review by this court unless new factors are, in fact, present which the trial court should consider. . . ." must be considered overruled by Stockwell and Gaddis, and is withdrawn. Any motion for review of sentence, based either on claimed excessiveness or abuse of discretion or new factors being present, must be made to the trial court and, unless it is made at the trial court level, in the absence of compelling circumstances, will not be initially reviewed by this court. We find no such compelling circumstances in the case before us, and hold that the right to review of the sentence imposed on the ground of alleged excessiveness and abuse of discretion was lost by the failure to here make a motion for reduction of sentence at the trial court level within ninety days of the sentencing.
Gaddis v. State (1974), 63 Wis.2d 120, 129, 216 N.W.2d 527.
Whitmore v. State (1973), 56 Wis.2d 706, 717, 203 N.W.2d 56.
Farley v. State (1971), 50 Wis.2d 113, 115, 183 N.W.2d 33, quoted and followed in Stockwell v. State (1973), 59 Wis.2d 21, 28, 207 N.W.2d 883. See also: Tatum v. State (1971), 51 Wis.2d 554, 556, 187 N.W.2d 137.
State v. Foellmi (1973), 57 Wis.2d 572, 582, 583, 205 N.W.2d 144.
By the Court. — Judgment affirmed.