Opinion
No. 2014AP55–CR.
2014-09-9
STATE of Wisconsin, Plaintiff–Respondent, v. Dameon Dimario HIGHSHAW, Defendant–Appellant.
(Record citations omitted.) During the sentencing hearing, the circuit court also heard about Highshaw's mentoring efforts.
Appeal from a judgment and orders of the circuit court for Milwaukee County: Dennis P. Moroney, Judge. Affirmed.
Before CURLEY, P.J., KESSLER and BRENNAN, JJ. ¶ 1 PER CURIAM.
Dameon Dimario Highshaw appeals the judgment of conviction for first-degree recklessly endangering safety, use of a dangerous weapon, as a party to a crime, conspiring to commit bribery of a witness, and conspiring to commit obstruction of justice. See Wis. Stat. §§ 941.30(1), 939.63(1)(b), 939.05, 939.31, 946.61(1)(a), & 946.65(1) (2011–12). Highshaw also appeals the orders denying his postconviction motion for a Machner hearing and for sentence modification. See State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905 (1979). Because Highshaw's trial counsel was not ineffective and because sentence modification is not warranted, we affirm.
All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted. Although the charges in this case date back to 2008, the versions of the statutes in effect at that time are the same as the current versions.
¶ 17 We first address Highshaw's assertion that the circuit court was not fully aware of his federal sentence. The unsealed portion of the sentencing transcript reveals that the State advised the court as to Highshaw's federal sentence when it was detailing his criminal history. Specifically, the prosecutor stated:
Portions of the sentencing hearing transcript were ordered sealed due to the sensitive nature of the testimony offered regarding Highshaw's cooperation with law enforcement.
And then his most recent conviction is in Federal court and that was in 2009 that the case arose, conspiracy to possess with intent to deliver 50 grams or more of cocaine; he was indicted; he pled guilty on April 19th, 2011, and was sentenced to 78 months in Federal prison, and he's serving that now.
It is unclear to this court what additional information Highshaw thinks was needed for the circuit court to be fully aware of the federal sentence.
¶ 18 As to Highshaw's previous cooperation and the changes to his character and lifestyle, the following is set forth in Highshaw's brief:
At the time of sentencing, [Highshaw's trial counsel] informed the Court that Highshaw had been cooperating with the police for over three (3) years and met with law enforcement on several occasions for numerous debriefings. During the debriefings not only did Highshaw discuss his own role with regard to the crimes he was charged for, he also gave information about other Federal defendants, including one who was under indictment at the time.
During the sentencing hearing, [Highshaw's trial counsel] called an FBI Agent to testify regarding Highshaw's cooperation and the quality of information given. The FBI Agent stated on the record that not only did Highshaw provide long and detailed debriefings, he also provided the Bureau with credible information.
During the sentencing hearing, [Highshaw's trial counsel] also called a Milwaukee County Detective to testify. The detective indicated that Highshaw had been very cooperative and very willing to give information. This witness also believed that information given by Highshaw was found to be truthful, and even gave Highshaw a score of ten (10) on a scale from one (1) to (10), with ten (10) being the quality of assistance provided by Highshaw.
(Record citations omitted.) During the sentencing hearing, the circuit court also heard about Highshaw's mentoring efforts.
¶ 19 Again, in light of the forgoing, this court is at a loss as to what exactly Highshaw is arguing as a new factor. This argument fails.
¶ 20 Highshaw goes on to argue that even if we conclude no new factors were presented, the circuit court should have modified his sentence because it is unduly harsh or unconscionable. See id., ¶ 35 n. 8 (A circuit court has the authority to modify a sentence when it determines that the sentence was “unduly harsh or unconscionable.”).
¶ 21 A sentence is unduly harsh if it 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.’ ” State v. Grindemann, 2002 WI App 106, ¶ 31, 255 Wis.2d 632, 648 N.W.2d 507 (citation omitted). “ ‘A sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.’ ” Id. (one set of brackets and citation omitted).
¶ 22 As the State points out, it is not clear what Highshaw finds to be unduly harsh or unconscionable about his sentence; instead, it appears he is dissatisfied with how the court weighed mitigating factors. We reject this argument. See State v. Gallion, 2004 WI 42, ¶ 41, 270 Wis.2d 535, 678 N.W.2d 197 (weight given to sentencing factors is within trial court's discretion). Highshaw's sentence was neither unduly harsh nor was it unconscionable.
Judgment and orders affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5.