State v. Elijah D. Keene

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 20, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP2075-CR Cir. Ct. No. 2019CF1610

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ELIJAH D. KEENE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: STEPHANIE ROTHSTEIN, Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP2075-CR

¶1 PER CURIAM. Elijah D. Keene appeals a judgment convicting him
of three counts of repeated sexual assault of a child (different victims). He also
appeals an order denying his motion for postconviction relief. Keene argues that
the circuit court erroneously exercised its sentencing discretion when it imposed an
aggregate prison term of eighteen years of initial confinement and ten years of
extended supervision. We affirm.

¶2 Sentencing decisions are committed to the circuit court’s discretion.
State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. A circuit
court properly exercises its discretion when its decision shows a process of
reasoning that is based on the facts of record and proper legal standards. Id., ¶19.
“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.” McCleary v. State, 49
Wis. 2d 263, 276, 182 N.W.2d 512 (1971) (citation omitted).

¶3 Keene contends that the circuit court erroneously exercised its
sentencing discretion for two reasons. First, Keene contends that the circuit court
did not adequately explain why the sentence was the minimum amount of time
necessary to effectuate the goals of its sentence. Second, Keene contends that the
circuit court incorrectly believed that a longer term of imprisonment would allow
him to receive more treatment. We reject both of these arguments.

¶4 Turning first to Keene’s argument that the circuit court did not
adequately explain why twenty-eight years of imprisonment was necessary to
achieve its sentencing goals, Gallion explains that “the exercise of discretion does
not lend itself to mathematical precision.” Id., 270 Wis. 2d 535, ¶49. As such, the
circuit court is not required “to provide an explanation for the precise number of

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No. 2021AP2075-CR

years chosen.” State v. Taylor, 2006 WI 22, ¶30, 289 Wis. 2d 34, 710 N.W.2d 466.
Here, the court considered a host of factors in imposing its sentence, including the
need for punishment, specific deterrence, and the protection of the victims. The
circuit court also addressed mitigating factors that applied in this case. The circuit
court’s lengthy sentencing decision is replete with its observations about the case
and sets forth its detailed rational for imposing a lengthy period of incarceration.
Therefore, we reject this argument.

¶5 We turn next to Keene’s contention that the circuit court erroneously
exercised its sentencing discretion because it stated that a lengthy sentence would
allow Keene to receive necessary treatment and counseling. The circuit court
explained:

[A] lengthy period of initial confinement needs to be
imposed, Mr. Keene, so that you can engage in the kind of
intensive treatment that you need so that any mental health
needs of yours can be addressed and treated and so that you
can have treatment and counseling on how to have a healthy
relationship with another person and how to live an
emotionally and physically healthy life on your release.

Keene contends that this was an erroneous exercise of discretion because there is no
directly proportional relationship between the length of confinement imposed and
the amount of treatment he will receive. Rather, the Department of Corrections
(DOC) limits the number of hours of sexual treatment to four thousand hours over
two years regardless of the length of the sentence.

¶6 The sentencing decision shows that the circuit court considered
Keene’s need for treatment as only one in a series of factors that influenced the
sentence it imposed, in accord with the mandate of Gallion and McCleary. The
circuit court stated that Keene’s lengthy term of incarceration would allow him to
engage in needed treatment and counseling, but the circuit court did not state it chose

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No. 2021AP2075-CR

the length of the sentence based solely on its desire to maximize the amount of
treatment that Keene received. It is well established that supervision of the custody
of prisoners is vested by statute in the DOC, and therefore a circuit court may not
order the DOC to provide specific treatment. See WIS. STAT. § 301.03(2) (2021-
22); see also State v. Lynch, 105 Wis. 2d 164, 168, 312 N.W.2d 871 (Ct. App.
1981). Based on our review of the circuit court’s sentencing decision, we conclude
that the circuit court did not erroneously exercise its sentencing discretion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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