### COURT OF APPEALS DECISION DATED AND FILED January 7, 2020

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2018AP2094

- CR Cir. Ct. No. 2015CF1080 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

S TATE OF W ISCONSIN ,

P LAINTIFF - R ESPONDENT ,

V .
K EVIN A. T AYLOR ,

D EFENDANT - A PPELLANT .

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI and PEDRO COLON , Judge s

. Affirmed.

Before Brash, P.J., Kessler and Dugan, JJ.

Per curiam opinions may not be cited in any court of this state as preced ent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).No. 2018AP2094

- CR

2 ¶ 1 PER CURIAM. Kevin A. Taylor appeals a judgment entered after he pled guilty to second

- degree recklessly endangering safety as a repeat offende r and causing soft tissue injury to a police officer while resisting the officer. He also appeals an order denying postconviction relief. 1 He alleges that the circuit court sentenced him based on an improper factor, namely, his challenge to
restitution. He seeks resentencing. We reject his contentions and affirm.

Background

¶ 2 According to the criminal complaint, M .N., a City of Greenfield police officer, was on patrol in a marked squad car early o n the morning of
March 7, 2015. At approximately 2:15 a.m., h e approached a vehicle idling in the parking lot of a closed Greenfield business and made contact with the driver.
M.N. s melled marijuana and directed the driver, subsequently identified as T aylor,
to remain in his vehicle

. Tayl or , however, began opening and closing the driver’s

side door

. M.N. called for backup from additional officers. As events unfolded, Taylor started driving, which “forced [M.N.] to jump into [Taylor’s] vehicle to avoid being run over,” and Taylor then dr ove his vehicle into M.N.’s squad car

. ¶ 3 M.N. struggled with Taylor inside his vehicl e and eventually
arrested him. M.N. sustained a cut to his face and abrasions to his leg and was conveyed to a hospital for treatment. A search of Tayl or’s vehicle incident to the arrest uncovered several grams of cocaine. The State charged Taylor with

1 The Honorable David L. Borowski presided over the original sentencing and entered the judgment of conviction. The Honorable Pedro Colon presided over the postconviction proceedings and entered the order denying postconviction relief.No. 2018AP2094

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3 possession of cocaine, causing soft tissue injury to an officer while resisting the officer, and second

- degree recklessly endangering safety as a repeat offender.

¶ 4 To support the claim that Taylor was a repeat offender, the State alleged that Taylor had a prior conviction for second

- degree recklessly endangering safety, and the State attached to the complaint in the instant matter a
copy of a 2013 criminal complaint f iled in Fond du Lac County

. According to the 2013 complaint, Taylor fled from a traffic officer and led police on a high speed
chase . When he finally stopped his vehicle, an officer approached Taylor’s
vehicle on foot. The officer’s arms were “in the driver’s door” when Taylor accelerated, dragging the officer some distance before the officer eventually fell onto the roadway within inches of the vehicle’s tires. Taylor subsequently
abandoned his vehicle in a snowbank. Whe n police searched the vehicle, they found twenty grams of marijuana.

¶ 5 In March 2016, T aylor decided to resolve the charges in the instant

case with a plea agreement. Pursuant to its terms, he pled guilty to second

- degree recklessly enda ngering safety as a repeat offender and to causing soft tissue damage to an officer while resisting the officer. The State agreed to recommend a global disposition of one and one

- half years of initial confinement and four and

one

- half years of extended su pervision . The State also moved to dismiss and read in the charge of possessing cocaine. The matters proceeded to sentencing.

¶ 6 At the outset of the sentencing hearing, the parties advised the circuit court that Taylor disputed the $1542.10 claimed as restitution for damages to the
Greenfield squad car, and the State presented testimony from the Greenfield assistant police chief to e stablish the reasonableness of the claim. Taylor’s cross

-No. 2018AP2094

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4 examination was brief, focusing on why certain components of the squad car needed to be replaced rather than repaired. 2

¶ 7 Following the assistan t police chief’s testimony, the St ate made the promised sentencing recommendation. In support, t he State emphasized that Taylor’s actions were dangerous and placed an officer at risk. Turning to restitution, the State requested an amount necessary to satisfy M.N.’s medical
costs and the $1542.10 for squad car repairs. 3

¶ 8 Taylor declined to address the circuit court personally, but his defense counsel spoke on his behalf , noting Taylor’s youth, employment history, and efforts toward completing a high school education. De fense counsel also acknowledged that Taylor was on supervision for his conviction in Fond du Lac County when he committed the crimes in this case and conceded that a prison
sentence was warranted. Defense counsel recommended a global sentence of
thirteen or fourteen months of initial confinement and twenty

- four months of extended supervision. As to restitution, defense counsel advised that Taylor disputed the reasonableness of replacing rather than repairing the squad car’s push
bar. Defense counsel ther efore proposed that the restitution award exclude th at $4 7 6 .90 replacement cost.

2 The State asserts in its statement of the case that Taylor’s trial counsel “had no questions” for the assistant police chief. That assertion is inaccurate. We remind counsel of the importance of correctly describing the facts of record.

3 In postconviction proceedings, the circuit court reduced the amount of restitution awarded as compensation for medical costs. Re stitution f or medical costs is not at issue i n this appeal.No. 2018AP2094

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5 ¶ 9 The circuit court began its remarks by finding that the facts in the instant case were “very similar” to those underlying Taylor’s conviction for
reckles sly endangering safety in Fond du Lac County , and the circuit court noted that Taylor was serving a term of community supervision for that “borderline identical” case at the time he committed the inst ant crimes. The circuit court
concluded that Taylor ha d “no respect for authority, no respect ... for police.”

¶ 10 The circuit court next took into account that Taylor failed to comply
with the terms of his bond whil e the instant case was pending, finding that he “once again prov[ed] he has no respect for authority, for officers, for judges, for the courts, or for anyone.” The circuit court characterized Taylor as a “menace” and a “threat , ” and then observed:

[Taylor] sits here shaking his head and rolling his eyes at me as if, “ who cares what the judge says,’ and ‘ [ h ] ow can you say that , J udge?’ He sits here and force s his attorney to bring in an officer from the Department of Greenfield to squabble over $400 in restitution. That is a sure sign of lack of respect f

or authority and lack of ac countability, lack of apology. There’s been no apology in this case, no accountability, no showing of remorse whatsoever.
¶ 11 T he circuit court next found that Taylor had caused “significant damage” to property and that M.N. incurred subst antial medical costs for hospital
treatment and x

- r ays . T he circuit court concluded that Taylor had created “a very , very dangerous situation.”

¶ 12 Turning to mitigating factors, the circuit court gave Taylor credit for pleading guilty a nd acknowledged his “sporadic” work history, which the circuit
court viewed as “somewhat positive.” The circuit court reiterated, however, that Taylor had committed multiple crimes in this case “while he’s on supervision for almost an exactly similar case , another case involving an officer, another caseNo. 2018AP2094

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6 involving recklessly endangering safety, another case involving some version, technical or otherwise, of fleeing and having no respect for authority.”

¶ 13 The circuit court next determined that Taylor “needs to be punished. He needs to be incarcerated,” and the circuit court expressed the hope that Taylor would “mature and stop breaking the law.” The circuit court went on:

Hopefully, the D[epartment] o[f] C[orrections] and his time in cus tody can have some effect on Mr. Taylor, who, again, shows no remorse; if anything , shows disdain as he sits here for the entire process, squabbles over $400 in restitution[,] some of which will be [covered] by the bail

.... But restitution he’ll certainl y have to pay.

F or someone that now is on his second serious felony at the age of [ twenty

- three ] , multiple criminal contacts, multiple criminal conviction s , injures a police officer, shows no remorse whatsoever, which is a negative, squabbles over restitu tion. When you’re go[ing to] have a total restitution in the thousands of dollars he’s worried about $400 and whether or not the push bar for the squad needed to be replaced or ... whether we can just touch it up with paint, preposterous. And it speaks t o Mr. Taylor’s utter lack of character, utter lack of empathy. Utter lack of maturity.
¶ 14 The circuit court then pronounced sentence, imposing an evenly
bifurcated six

- year term of imprisonment for second

- degree reckless endangerment as a repeat offender and a consecutive, evenly bifurcated two

- year term for causing injury to an officer while resisting the officer. The circuit court recognized that it had imposed a longer sent ence than the State recommended but the circuit court found that Taylor “needs more punishment. He needs more time
behind bars .” The circuit court explained:

I’m not go[ing to] let him injure an officer and think it’s a joke, which is where this matter currently stands.... He’s an ut ter danger to the community . He’s running rampant in Greenfield and Fond du Lac and Milwaukee County, terrorizing neighborhoods, potentially, but certainlyNo. 2018AP2094

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7 terrorizing police officers who he has no problem literally running over or running into with squad cars

. If anything , I’ve considered more time than this.
¶ 15 Taylor moved for postconviction relief. As relevant here, he sought resentencing on the ground that he was sentenced “based on an improper factor, namely, his challenge to the S tate’s restitution claim.” The postconviction court denied the motion without a hearing, finding that the sentencing court considered Taylor’s challenge to restitution only “as [that challenge] related to his character
and lack of remorse for his actions

. ” The postconviction court therefore concluded that Taylor was not sentenced on the basis of an improper factor. Taylor appeals.

Discussion

¶ 16 Sentencing rests in the circuit court’s sound discretion. See State v. Gallion , 2004 WI 42, ¶ 17, 270 Wis. 2d 535, 678 N.W.2d 197. A circuit court’s exercise of sentencing discretion must include consideration of three primary factors, specifically, “the gravity of the offense, the character of the defendant, and the need to protect the public.” State v. Ziegler , 2006 WI App 49, ¶23, 289
Wis. 2d 594, 712 N.W.2d 76. A circuit court may also consider a wide range of additional factors, including the defendant’s “remorse, repentance, and cooperativeness.” See Gallion , 270 Wis. 2d 535 , ¶43 & n.11. We afford sentencing decisions “ a strong presumption of reasonableness because the circuit court is best suited to consider the relevant factors and assess the defendant’s demeanor. A defendant can rebut the presumption of reasonableness only by showing a n unreasonable or unjustifiable basis for the sentence in the record.” See State v. Samsa , 2015 WI App 6, ¶8, 359 Wis. 2d 580, 859 N.W.2d 149 (internal citation omitted).No. 2018AP2094

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8 ¶ 17 A defendant who s eeks resentencing on the ground that the circui t court consider ed an improper factor must shoulder the heavy burden of proving by clear and convincing evidence that: (1) the factor was in fact improper; and (2) the circuit court actually relied upon the improper factor

. See State v. Harris , 2010 WI 79, ¶¶31

- 32, 34, 326 Wis. 2d 685, 786 N.W.2d 409

. To prove that a sentencing factor was improper, a defendant must show that it was “totally
irrelevant or immaterial to the type of decision to be made.” See Samsa , 359
Wis. 2d 580, ¶8 (citation omitted). To prove actual reliance, the defendant must show that “ the circuit court paid ‘explicit attention’ to an improper factor, and

... the improper factor formed the ‘ basis for the sentence .’” State v. Williams , 2018 WI 59, ¶52, 381 Wis. 2d 661, 91 2 N.W.2d 373 (citation omitted). On appeal, we independently review the sentencing transcript as a whole and assess the allegedly improper comments in context. See id. We then determine whether the evidence is clear and convincing that the circuit court actually relied upon an improper factor in fashioning the sentence. See Harris , 326 Wis. 2d 685, ¶¶35, 45. Evidence is clear and convincing when the thing to be proved is shown to be

“‘ highly probable or reasonably certain. ’” See id. , ¶35 (citation omitted)

. With the foregoing in mind, we turn to Taylor’s claim.

¶ 18 According to Taylor, “the circuit court’s consideration of [his] restitution challenge constituted an improper factor for sentencing.” His claim is
bottomed o n the principles that a defendant has a right to challenge a restitution request, and a circuit court may not punish a defendant solely for exercising that right. See Williams , 381 Wis. 2d 661, ¶¶49, 5 1 & n.15. The supreme court has made clear, however, that “when the restitution factor is inextricably intertwined with a defendant’s character and lack of remorse, its consideration is proper.” Id. , ¶51. We conclude that the record reflects such proper consideration here.No. 2018AP2094

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9 ¶ 19 The circuit court initially mentioned the challenge to restitution when considering Taylor’s courtroom demeanor. The circuit court noted that Taylor was “shaking his head and rolling his eyes” and construed those actions as showing disdain for the circuit court. Th e circuit court next remarked that Taylor had required his trial counsel to “squabble over $400 in restitution,” and found that such an action also reflected a lack of respect for authority. The circuit court then
added: “[t]here’s been no apology in thi s case, no accountability, no showing of remorse whatsoever.” Thus, as Williams permits, the circuit court directly linked Taylor’s attitude toward the damages he caused with his hostility to authority and
his failure to demonstrate any repentance or regr et for his actions.

¶ 20 Further, the record shows that the circuit court’s later references to
restitution also reflect the circuit court’s view that Taylor’s challenge to restitution illuminated Taylor’s character. The circuit court was a ppalled that although Taylor had “injure[d] a police officer” and had caused substantial property damage, he “worried about $400 and whether or not the push bar for the squad needed to be replaced

... or whether we can just touch it up with paint, preposterous.” The circuit court then found that Ta ylor “again, shows no remorse; if anything, shows disdain ... for the entire process, squabbles over $400 in restitution.” In the circuit court’s view, Tayl or’s priorities, demeanor, and attitude towards the crimes he committed demonstrated an “utter lack of character, utter lack of empathy. Utter lack of maturity.” Cf. State v. Baldwin , 101 Wis. 2d 441, 459, 304 N.W.2d 742 (1981) (internal citation omitted ) (explaining that a sentencing court has an “obligation to consider factors such as the defendant’s demeanor, his need for rehabilitation, and the extent to which the public might be endangered by his being at large. A defendant’s attitude toward the cri me may well be relevant in considering these things.”).No. 2018AP2094

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10 ¶ 21 We are satisfied that the circuit court’s remarks about Taylor’s challenge to restitution reflect that the circuit court drew a reasonable connection between that challenge and Ta ylor’s character . In context, the remarks show that
the circuit court assessed “the restitution factor [ a ] s inextricably intertwined with [Taylor’s] character and lack of remorse.” See Williams , 381 Wis. 2d 661, ¶51.
That assessment rested in the circui t court’s discretion. See id. , ¶50. Taylor

t herefore fails to show that restitution was an improper sentencing factor here.

¶ 22 Moreover, were we to conclude that Taylor’s challenge to restitution was an improper factor in this case

— and w e do not

— we would nonetheless hold that Taylor is not entitled to resentencing. Our independent review of the record
does not reveal clear and c onvincing evidence that the circuit court placed actual reliance on the restitution challenge. Cf. State v. Al exander , 2015 WI 6, ¶26, 360
Wis. 2d 292, 858 N.W.2d 662 (reflecting that a court may give explicit attention to an improper factor without actually relying on it). In other words, it is neither “highly probable” nor “reasonably certain” that the restitution challenge was the basis for Taylor’s sentences. See Harris , 326 Wis. 2d 685, ¶35.

¶ 23 A s in Williams , the circuit court’s remarks reflect that th e sentences chosen were based on the gravity of the offense s , the defendant’s character, and the need to protect the public. See id. , 381 Wis. 2d 661, ¶53

. Of those factors, the circuit court particularly emphasized Taylor’s character, which the circuit court found was poor “at best” for reasons that it thoroughly explained.

¶ 24 The circuit court was profoundly concerned that Taylor had committed crimes in this case that were nearly identical to those he committed in 2013, and that he co mmitted his most recent crimes while serving a term of community supervision for the earlier ones. See State v. Lechner , 217 Wis. 2dNo. 2018AP2094

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11 392, 422, 576 N.W.2d 912 (1998) (past record and history of undesirable behavior patterns are relevant in assessing the de fendant’s character). T he circuit court also
considered Taylor’s insolent behavior in the courtroom , which the circuit court
viewed as signaling contempt for the judicial process. See Samsa , 359 Wis. 2d
580 , ¶8 (reflecting the critical importance of the sentencing court’s opportunity to observe the defendant’s courtroom demeanor). Further, the circuit court stressed that Taylor had not offered any apology or otherwise demonstrated remorse for his
crimes

. While the circuit court interspersed remarks abou t Taylor’s restitution challenge with in the larger discussion, the record shows that the circuit court connected those remarks to its explanations of why it believed Taylor had “ no respect for authority, for officers, for judges, for the courts, or anyone.”

¶ 25 As to the gravity of the offenses and the need to protect the public, the circuit court found that Taylor had triggered a “very very dangerous situation” in this case and that his “bad decision making” created an ongoing risk to those
around him and a likelihood that he would reoffend in the future. The crux of the sentencing decision was ultimately the circuit court’s finding that Taylor was “an utter danger to the community ” because he was “ running rampant ... terrorizing
p olice officers who he has no problem literally running over .” The circuit court explained that it would not “let [Taylor] injure an officer and think it’s a joke

.... He needs time to mature, and ... at some point become a productive member of society.” Accordingly, the circuit court rejected the parties’ sentencing
recommendations as insufficient and instead imposed an aggregate evenly bifurcated eight

- year term of imprisonment.

¶ 26 The totality of the sentencing remarks do not show that the circuit court vindictively increased Taylor’s punishment because Taylor challenged the restitution request. Although the circuit court discussed his challenge, theNo. 2018AP2094

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12 discussion “ bore a reasonable nexus to the relevant factor[s] of [his] lack of

remorse ,” see Williams , 381 Wis. 2d 661, ¶53, and his character, specifically, the attitude towards authority that he exhibited in his crimes and in the courtroom.
The basis for the aggregate term of imprisonment was thus the circuit court’s
assessment of the primary sentencing factors, coupled with Taylor’s courtroom
demeanor and lack of remorse. We are therefore satisfied that the sentence s in this

case w ere based on appropriate sentencing factors. Because Taylor fails to show
that the circuit court increas ed his sentence s solely because he challenged restitution, he fails to establish actual reliance on an improper factor. See id.

¶ 27 The parties end their briefs by discussing whether the circuit court’s reliance on an improper factor at se ntencing constituted harmless error. In light of our conclusion that the circuit court did not err, we need not address this issue. 4 For all the foregoing reasons, we affirm.

By the Court.

— Judgment and order affirmed.
This opinion will not be publish ed. See W IS

. S TAT

. R ULE 809.23(1)(b)5

. (2017

- 18).

4 We are mindful of the circuit court’s many duties at sen tencing, and we have concluded that the circuit court properly fulfilled its duties here. We take this opportunity, however, to remind the circuit court to choose its words with care when imposing sentence to ensure that the defendant fully understand s the reasoning underlying the sentencing decision.