State v. Thatcher R. Sehrbrock, 2022AP2153-CR, 8/8/24, District IV (authored); case activity
Sehrbrock, convicted of robbery with use of force as PTAC, appeals the judgment of conviction and order denying his postconviction motion in which he challenged a condition of probation requiring that an ignition interlock device be installed on any motor vehicle that he owns or operates. He argued that the IID condition was unreasonable and its term was harsh and excessive. The COA affirms in a 2-1 decision.
Sehrbrock and his codefendant stole cigarettes from a store, and in the process deployed pepper spray and threw drink cans at the clerk. (¶2). After he pleaded, the court ordered a PSI, which revealed an extensive history of substance abuse, dating back to middle school. (¶¶4-5). Sehrbrock had been drinking heavily for months leading up to the incident and had a juvenile offense that also involved alcohol. (¶5). The circuit court withheld sentence and placed Sehrbrock on probation for seven years with conditions, including that Sehrbrock have an IID installed on any vehicle he owns or operates while on probation.
Sehrbrock filed a postconviction motion, which the circuit court denied. The court stated that it would not lift the ignition interlock condition until Sehrbrock showed the court that he was “successfully dealing with [his] alcohol issue and that there’s some good reasons that we can lift it.” (¶16). On appeal, Sehrbrock argued that the circuit court erroneously exercised its discretion by imposing the IID requirement as a condition of probation.
When a sentencing court places the defendant on probation, “[t]he court may impose any conditions which appear to be reasonable and appropriate.” Wis. Stat. § 973.09(1)(a). A condition need only be “reasonably related” to “the dual goals of supervision”—rehabilitation and public protection. ” State v. B. Miller, 2005 WI App 114, ¶¶11, 13, 283 Wis. 2d 465, 701 N.W.2d 47. (¶19).
With a strong presumption in favor of the circuit court’s reasonableness and exercise of discretion, (¶¶20-21), the COA affirms. At sentencing, the court expressed concern that someone who drank as much as Sehrbrock might be on the road, and knew Sehrbrock had been charged with a hit and run. (¶22). In addition, alcohol was involved in the underlying incident, and Sehrbrock’s AODA issues featured heavily at sentencing. (¶¶23-24).
The COA points out that the circuit court further clarified the link between the condition and the use of alcohol in the underlying crime. (¶25). The COA also finds it significant that “this probation condition was imposed in the context of a case in which both the prosecutor and the circuit court expressed the belief that a prison sentence would have been justified.” (¶26). The legislature grants judges “broad discretion” to set probation conditions because “when a judge allows a convicted individual to escape a prison sentence and enjoy the relative freedom of probation, [the judge] must take reasonable judicial measures to protect society and potential victims from future wrongdoing.” State v. Oakley, 2001 WI 103, ¶12, 245 Wis. 2d 447, 629 N.W.2d 200. It goes on to reject each of Sehrbrock’s arguments. (¶¶29-39).
As to Sehrbrock’s harsh and excessive argument, the COA points out that the law he cites applies to sentences generally, rather than specific conditions. (¶42). Regardless, the court assumes without deciding that it applies here. However, the COA is unpersuaded by Sehrbrock’s arguments regarding costs, and that the length of the condition is more than twice as long as the maximum IID requirement that could be imposed for OWI 3 or higher. (¶¶43-44).
Judge Taylor’s dissent
Taylor dissents, concluding that it was an erroneous exercise of discretion for the circuit court to impose the use of an IID as a condition of probation in this case. (¶47). The dissent focuses on facts more favorable to Sehrbrock. (¶¶48-51).
In the present case, I agree with Sehrbrock that the IID condition was not “reasonable and appropriate” because it was not sufficiently supported by the facts of this case or on reasonably derived inferences. The record amply supports the circuit court’s findings that Sehrbrock had struggled with significant alcohol and substance addiction from a young age, which contributed to Sehrbrock’s criminal conduct. The record is nonexistent, however, when it comes to any history of driving or operating a vehicle while intoxicated. Although Sehrbrock was intoxicated when committing this crime, it is undisputed that Sehrbrock did not drive or operate a vehicle as part of this offense. The record also contains no allegations or evidence that Sehrbrock had previously operated a vehicle while intoxicated or had any prior citations or convictions or any pending charges for committing a vehicular offense while intoxicated. . . . The sentencing hearing transcript suggests that the IID was imposed as an afterthought and was rooted in rhetoric that likened Sehrbrock’s alcohol addiction to “the devil ha[ving] his claws into [Sehrbrock],” rather than in the particular facts of this case or Sehrbrock’s driving history.
(¶55). “There is no similar factual scenario in any Wisconsin appellate case where an IID has been imposed as a condition of probation for a non-vehicular crime, much less when there is no history of the defendant driving or operating a vehicle while intoxicated.” (¶56). Therefore, Taylor would remand for the circuit court to strike the IID probation condition.(¶57).
