### COURT OF APPEALS DECISION DATED AND FILED August 8, 2024

S amuel A. Christensen 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. 2022AP2153

- CR Cir. Ct. No. 2021CF156 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
T HATCHER R. S EHRBROCK ,
D EFENDANT - A PPELLANT .

APPEAL from a judgment and an order of the circuit court for Dodge County: JOSEPH G. SCIASCIA , Judge. Affirmed

.

Before Kloppenburg, P.J., Nashold, and Taylor, JJ.

¶ 1 NASHOLD , J

. Thatcher Sehrbrock appeals the sentencing portion
of a judgment of conviction for robbery with use of force as a party to a crime , and an order denying his postconviction motion. Specifically, Seh r brock challenges a condition of probation requiring that a n ignition interlock device be installed onNo. 2022AP2153

- CR

2 any motor vehicle that he own s or operate s . He argues that the ignition interlock
condition should be vacated because it is unreasonable or, in the alternative, because its duration of seven years is harsh and excessive. We reject Seh r brock’s arguments and affirm

.
BACKGROUND

¶ 2 The criminal complaint alleges that t wo masked teenagers , later
identified as Seh r brock and Avery Bence, entered a Beaver Dam store after
mid night. Bence sprayed the st ore clerk with pepper spray and took several packs of cigarettes, after which a struggle ensued. When Bence called for help,
Sehrbrock threw several canned drinks at the clerk. He and Benc e then fled the
scene on foot. Bence later told police that the p lan was “to steal cigarettes and/o r alcohol from a gas station.”

¶ 3 The State charged Sehrbrock with armed robbery as a party t o a crime. In exchange for Sehrbrock’s no

- contest plea, the State amended the charge to robbery with use of f

orce as a party to a crime. This amendment reduced the maximum penalty from 40 years of imprisonment to 15 years

. T he circuit court accepted Seh r

brock’s plea and ordered that a presentence investiga tion report (PSI) be prepared.

¶ 4 The PSI was filed prior to sentencing and, as relevant here , set forth Sehrbrock’s version of the offense, his criminal history, and his history of
substance abuse. Sehrbrock informed the PSI writer of the following

. Sehrbrock participated in t he robbery b ec ause he “was drunk and got peer pressured.” He “had been drinking heavily prior to committing the offense and he blacked out.”
Seh r brock first started drinking at age 12 , and by ages 16 and 17, was “drinking approximately 1.75 liter[s] a day for a year s traight.” As a result, his skin hadNo. 2022AP2153

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3 “turned yellow.” Starting at age 14, he used LSD “a lot,” and he also used amphetamines, codeine, ecstasy, mushrooms , cocaine, morphine, and nitrite
inhalants. After the offense, Sehrbrock sought treatment and stopped drinking
alcohol.

¶ 5 Sehrbrock’s mother informed the PSI writer that Seh r brock’s substance abuse started when he was in eighth grade. She reported that at the time of the robbery, Seh r

brock “was drinking straight vodka heavily. Not just that day, but every single day, all day, for months leading up to that incident.”

¶ 6 The PSI notes that Sehrbrock was adjudicated in a juvenile proceeding for resisting an officer whe n he was 15 years old. Sehrbrock explained to the PSI writer that he “was under the influence when [he] got picked up” for that offense and that he “resisted arrest.” The PSI also reflects that Seh r brock had two prior felony drug convictions, and a pendi ng misdemeanor charge for criminal damage to property ( which , by the time of sentencing, had resulted in a
conviction )

. Seh r brock told the PSI writer that his criminal record was the result of “[a] combination of being around [the] wrong people and poor c hoices because of alcohol and drug abuse.”

¶ 7 A t the sentencing hearing , the prosecutor discussed Seh r brock’s criminal history and , in addition to the offenses noted above, informed the court
that Seh r brock had an additional pending charge for hit and run. The prosecutor
also discussed the seriousness of the robbery offense, stating that the central question was whether this was a “prison case” or a “jail case.” Although the
p r o s ecutor said that “it certainly would not be wrong to o rder a prison sentence on a charge this serious,” she nevertheless recommended a probationary period of six to eight years, with one year of conditional jail time and other conditions. TheNo. 2022AP2153

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4 prosecutor noted the seriousness of the offense, Sehrbrock ’s “addi c t ion issues , ” his
yo u ng age, and the efforts that Sehrbrock had made prior to sentencing to address
his substance abuse issues.

¶ 8 Defense counsel agreed with the PSI writer’s sentencing
recommendation for a withhe ld sentence and five ye ars of probation with one year of conditional jail time . Among other things, counsel noted Sehrbrock’s “addictions” and his efforts to address them, his young age, and his honesty with
the PSI writer

. ¶ 9 Sehrbrock’s mother also addresse d the circuit court. She said that Sehrbrock “has struggled with drug and alcohol addiction and as such has made some very poor decisions.” She asked the court not to send Seh r brock to prison because it would not “address the actual root of the problem t hat led him here today.” Sehrbrock, who was 17 years old at the time of the offense and 18 years old at the time of sentencing, told the court: “The night at the gas station I made a stupid impulsive decision and I was heavily drinking at that time. Lik e every day.”

¶ 10 Before imposing its sentence, t he circuit court discussed Seh r brock’s criminal history and his extensive abuse of alcohol and d rugs

. The court also
discussed the harms that substance abuse inflicts on individuals and society , societal acceptance of alcohol and drug use, Seh r brock’s young age, and
Seh r brock ’s support from his family

. ¶ 11 T he circuit court stated that Sehrbrock’s extensive criminal record indicated that “maybe it’s ti me to do some prison

. ” However , the court accepted
the parties’ probation recommendation with one year of conditional jail time . The

court withh eld sentence and plac ed S e h r brock on probation for seven years , withNo. 2022AP2153

- CR

5 conditions that includ ed one year of conditional jail time with work release privile ges ; no consumption of alcohol or other intoxica n t s ; absolute sobriety ; no t going to bars, taverns, liquor stores or beer tents; and completion of AODA ( Alcohol and Other Drug Abuse ) programming as de termined by Seh r brock’s probation agent.

¶ 12 In addition, although it w as not requested by either party, the circuit

court ordered the condition of probation that is at issue in this appeal: that
Sehrbrock have an ignition interlock inst alled on any vehicle he owns or operates
for the duration of his seven

- year term of probation

. In imposing this condition, the court stated, “ S omebody who drinks as much as [Sehrbrock] drinks ought not be on the road unless he’s in a car that has ignition interlock.” The court also held out the opportunity of discharg ing Sehrbrock from probation early: “If you’re doing really, really well on probati on your agent might say he doesn ’t need seven years, he’s good to go and I’ll approve that.”

¶ 13 Sehrbrock subsequently filed a postconviction motion requesting
removal or modification of t he ignition interlock condition

. Sehrbrock argued that
th e condition is unreasonable because it i s not i n di v id uali z ed to Sehrbrock or to the fac ts of his offense , and because it does not further his rehabilitation or the protection of the community

. Altern a tively, Sehrbrock argued that the condition
sho u ld be removed or reduced because its impos ition for the full seven

- ye ar probationary period is “ harsh and excessive. ”

¶ 14 At the hearing on Seh r brock’s postconviction motio n , d efense
counsel argued that Seh r brock had no history of offenses involving operati on of a motor vehicle while intoxicated (OWI) and that the circuit court’s c onditions requiring that Seh r brock not consume alcohol and maintain absolute sobrietyNo. 2022AP2153

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6 already address ed Seh r brock’s rehabilitation and the protection of society.
D efense counsel also argued that t he seven

- year period for the ignition interlock is longer than what could statutorily be imposed on a repeat OWI offender

. In response, t he prosecutor argued that the ignition interlock condition was “reasonable and appropriate,” but also said that she was “not convinced” that it
needed to be for the f

ull seven years of probation

. ¶ 15 T he circuit court denied Seh r brock’s motion. T he court noted that
alcohol was involved in the offense , that it “is a huge factor in Mr. Sehrbrock’s inability to stay out of trouble,” and is “ directly rel ated to his conduct. ” The court
said that Sehrbrock “got in [ to ] a car with a bunch of people” and “agreed to go into a store and rob somebody to get alcohol.” T he court concluded that
Sehrbrock ’s lack of OWIs was not a reason not to order the ignition interlock
condition , telling Sehrbrock , “ On ce you get to the point where you’re intoxicated, you have given the keys to your life to the devil. And everybody who is in contact with you is in danger because there’s no tel ling what you’re go [ ing to ] do.” T he

court told Sehrbrock, “[Y]ou and alcohol teamed up and [you] got yourself into a lot of trouble.” The court further stated, “I’m not [going to] put the public at risk,” that “if there’s something I can do to minimize their risk, I’m [going to] do it,” and that the ignition interlock “is an easy thing, common sense thing, to do to protect you against yourself.”

¶ 16 T he circuit court also noted that Sehrbrock had been disciplined for violating the jail’s al cohol and drug rules, saying, “ [ W ] hat that tells me is
substance abuse is an issue with Mr. Sehrbrock.” Specifically, jail personnel had informed the court that Sehrbrock reported to serve his sentence under the
influence of controlled substances and had to be sent to the hospital by ambulance
and had on another occa sion been caught with drugs. T he court stated that itNo. 2022AP2153

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7 would not lift the ignition interlock condition until Sehrbrock showed the court that he was “ succes s fu l ly dealing with [his] alcohol issue and that there’s some good reasons that we can lift it. ” The court said that if Seh r brock return ed to court with some proof that the condition i s no longer necessary and is an unreasonable burden, the court would “ gladly consider lifting it. ” The court told Sehrb rock, “[Y]ou’re [going to] have to show me that you’re dealing with this. And so far you h aven’t been able to do it.”

¶ 17 This appeal follows.

DISCUSSION

¶ 18 Sehrbrock argues that the circuit court erroneously exercised its
discretion by imposing the ignition interlock requirement as a condition of probation . Specifically, he argues that the condition is not reasonable or appropriate , and , i n the alternative, that the condition’s duration is harsh and
excessive. We address , and reject, these arguments in turn.
Reasonable and Appropriate

¶ 19 A sentencing court’s authority to impose conditions on a term of probation is derived from statute. See State v . Sepulveda , 119 Wis. 2d 546, 554, 350 N.W.2d 96 (1984). When a sentencing court place s the defendant on probation, “[t]he court may impose any conditions which appear to be reasonable and appropriate.” W IS

. S TAT

. § 973.09(1)(a) (2021

- 22)

. 1 “‘ Sentencing courts have wide discretion’” in impos ing conditions of probation , State v. King , 2020

1 All references to the Wisconsin Statutes are to the 2021

- 22 version.No. 2022AP2153

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8 WI App 66, ¶2 0 , 394 Wis. 2d 431, 950 N.W.2d 891 (quoted source omitted) , and

“ s uch discretion is subject only to a standard of reasonableness and appropriateness , ” State v. B. Miller , 2005 WI App 114, ¶11, 283 Wis. 2d 465 , 701
N.W.2d 47

. A condition meets that standard if it is “reasonably related” to “ the dual goals of supervision”

— rehabilitation and public protection

. B. Miller , 283
Wis. 2d 465, ¶

¶11, 13.

¶ 20 “When a defendant seeks to have conditions of his or her supervision changed, the defendant bears the burden of showing cause for the modification.” King , 394 Wis. 2d 431, ¶24; see also State v. Hays , 173 Wis. 2d 439, 448, 496 N.W.2d 645 (Ct. App. 1992) (stating that the proponent bears the burden “to establish by a clear preponderance of the evidence that there is cause to modify the terms and conditions of [supervision]”). We “ ‘ review such conditions under the

erroneous exercise of discretion standard .’” King , 394 Wis. 2d 431 , ¶25 (quoted source omitted). This court must “look for reasons to sustain a circuit court ’s
discretion a ry d ecision. ” State v. Muth , 2020 WI 65, ¶14, 392 Wis. 2d 578, 945
N.W.2d 645. “The [circui t] court is presumed to have acted reasonably in sentencing.” State v. Le d ford , 114 Wis. 2d 562, 566, 339 N.W.2d 361 (Ct. App. 1983). A circuit court’s “[ d ] iscretion contemplates a process of reasoning which must depend on facts that are of record or that are reasonably derived by inference
from the record. ” State v. Handley , 173 Wis. 2d 838, 842

- 43, 496 N.W.2d 725, 727 (Ct. App. 1993)

. ¶ 21 Sehrbrock argues that the ignition interlock condition is not reasonably related to his rehabili tation or the protection of the public and instead “reflects only the circuit court’s idiosyncrasies.” See State v. Oakley , 2001 WI 103, ¶13 , 245 Wis. 2d 447, 629 N.W.2d 200 (“[J]udges should not abuse their discretion by imposing probation conditions ... t hat reflect only their ownNo. 2022AP2153

- CR

9 idiosyncrasies” but instead “should use their discretion in setting probation conditions to further the objective of rehabilitation and protect society and potential vi ctims from future wrongdoing.”), opinion clarified on denial of
reconsideration , 2001 WI 123, 248 Wis. 2d 654, 635 N.W.2d 760

. 2 We reject
Sehrbrock ’s arguments.

2 As part of his argument that the ignition interlock condition is unreasonable, Sehrbrock appears to advance arguments regarding sentencing generally versus conditions of probation specifically. For example, he relies on State v. Alexander , 2015 WI 6, ¶2 2, 360 Wis. 2d 292, 858 N.W.2d 662 , for its conclusion that, in sentencing a defendant, “[t]he circuit court’s proper exercise of discretion includes individualizing the sentence ‘to the defendant based on the facts of the case.’” ( Q uoted source omitted

. ) He then focuses on the ignition interlock condition specifically, arguing that the condition is not individualized to him or his offense. As Sehrbrock acknowledges , the specific standard applicable to a condition of probation is whether the condition is reasonably related to the defendant’s rehabilitation and the protection of the public. As noted above, this is a discretionary decision and a court’s discretion “contemplates a process of reasoning which must depend on facts that are of record or that ar e reasonably derived by inference from the record. ” State v. Handley , 173 Wis. 2d 838, 842

- 43, 496 N.W.2d 725 (Ct. App. 1993) . To the extent that Sehrbrock means to separately argue that the court’s exercise of discretion is not individualized to Sehrbro ck or not supported by the facts of record, we reject that argument based on the same facts of record that support our “reasonably related” conclusion, discussed in the text of our opinion. Citing State v. Gallion , 2001 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197 , Sehrbrock also appears to suggest that the circuit court failed to provide an adequate explanation for the ignition interlock condition. See Gallion , 270 Wis. 2d 535, ¶ ¶ 4 , 39 (judges are “required to provide a ‘rational and explainable basis’ for the sentence.” (quoted source omitted) ). It is unclear whether Sehrbrock intends to advance this as a separate argument. We note, for example, that the limited discussion on this point appears under the sub heading, “The condition requiring an [ignition inte rlock] is not reasonably related to Mr. Sehrbrock’s rehabilitation or conviction.” This sub heading does not include a suggestion that the court failed to provide an adequate explanation for sentencing; rather, the heading appears to inaccurately recite th e standard related to a condition of probation: namely, that the condition be reasonably related to rehabilitation and protection of the public. See State v. B. Miller , 2005 WI App 114, ¶13, 283 Wis. 2d 465 , 701 N.W.2d 47 . To the extent that Sehrbrock i ntends to argue that the court did not provide an adequate explanation , we reject that argument . As our discussion in the text of our opinion demonstrates, the court provided an adequate explanation for the ignition interlock condition

. Moreover, even if the court had not provided an adequate explanation, this court must “look for reasons to sustain a circuit court’s discretionary decision.” State v. Muth , 2020 WI 65, ¶14, 392 Wis. 2d 578, 945 N.W.2d 645

.No. 2022AP2153

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10 ¶ 22 I n imposing th e ignition interlock condition, t he circuit court stated , “S omebody who drinks as much as [Sehrbrock] drinks ought not be on the road unless he’s in a car that has ignition interlock.” At the time it imposed th e condition , the court had been informed that Sehrbrock had a pending hit and run charge in another county. The court was therefore aware of the p ossibility that Sehrbrock had access to a vehicle, had operated a vehicle in the past, and had done
so in an unlawful manner. See Elias v. State , 93 Wis. 2d 278, 284, 286 N.W.2d 559 (1980) (sentencing court may consider “pending charges for which there ha s been no conviction”).

¶ 23 The circuit court also had before it information that alcohol and
intoxication were involved in the robbery offense for which Sehrbrock was being
sentenced and that S e h r brock had an extensive history of alcohol and other
substance abuse

. This includes that Seh r brock committed the robbery in this

case

—his third felony by the age of 17

— while “heavily drinking” to the point of a “black out , ” that he had gone to the store in a vehicle with others for the pur pose of steal ing alcohol , and that during the year prio r to the robbery, while he was 16 and 17 years old, he had been dri nking a pproximately 1.75 liter s of hard liquor every day. Alcohol not only played a role in the robbery offense but in past
offenses as well. As noted, according to the PSI, Sehrbrock was adjudicated in a juvenile proceeding for resisting an officer when he was 15 years old. Sehrbrock explained to the PSI writer that he “was under the influence when [he] got picked up” for that offense , and that his criminal record was a result of “[a] combination of being around [the] wrong people and poor choices because of alcohol and drug abuse.”

¶ 24 The circuit court was well aware of the role of substance abuse in
Sehrbrock ’ s criminal history and of the need to protect the public fromNo. 2022AP2153

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11 Sehrbrock’s conduct

. T he court began its sentencing remarks by telling
Sehrbrock ’s family members who were present in the courtroom that “ this member of your family is in a lot of trouble and h e needs your support. ” The court
then noted that Sehrbrock had first consumed alcohol at the age of 12, first tried acid and LSD at the age of 12 and marijuana at age 13, and first used cocaine at age 15. The court discussed Seh r brock’s need for treatmen t, the seriousness of
Seh r brock’s offense, and Seh r brock’s character and rehabilitative needs, noting that he’s a “young man” with “a lot of good qualities,” who had “people here coming to support him which tells me that someplace in there [,] if you dig th rough enough drugs and alcohol [,] you’ll find a good person.”

¶ 25 The circuit court’s remarks at the postconviction hearing ma d e the
link between Seh r

brock’s use of alcohol and the offense even more explicit . As noted, the court told Seh rb rock , “[Y]ou and alcohol teamed up and [you] got yourself into a lot of trouble.” The court stated that Sehrbrock’s use of alcohol “is a huge factor in Mr. Sehrbrock’s inability to stay out of trouble,” and is “directly related to his conduct.” The cou rt noted that Sehrbrock “got in [ to ] a car with a bunch of people” and “agreed to go into a store and rob somebody to get alcohol.”
The court also linked the ignition interlock condition to Sehrbrock ’s rehabilitation and the protection of the public by sta ting that the court was unwilling to expose the public to the risk of having Sehrbrock on the road with out a n ignition interlock
and that this condition would also protect Sehrbrock from himself.

¶ 26 S ignifican t ly, t h is 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

. Rather than impos ing a prison sentence, however, the court withheld sentence and granted the parties’ request for probation , telling Sehrbrock that he was “getting the ben efit of the fact that you’ reNo. 2022AP2153

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12 a young person

. ” The court then imposed conditions, including the ignition interlock condition, designed to rehabilitate Sehrbrock while protect ing the public

. ¶ 27 T he 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 .” Oakley , 245 Wis. 2d 447, ¶12

. Although a circuit court must first consider probation as an option, State v. Gallion , 2004 WI 42 , ¶25, 270 Wis. 2d
535 , 678 N.W.2d 197 , “[p]robation is not a matter of right to a defendant, but instead is a privilege , ” State v. Heyn , 155 Wis. 2d 621, 627, 456 N.W.2d 157 (1990). 3 Our supreme court “recognize[s] that convicted felons may have trouble conforming their future con duct to the law,” and therefore “uphold[s] the power of a judge to tailor individualized probation conditions per W IS

. S TAT

. § 973.09(1)(a).” Oakley , 245 Wis. 2d 447 , ¶13.

¶ 28 Based on our review of t he record , we conclude that the ignit ion interlock condition is “reasonably related” to Sehrbrock ’s rehabilitation and the protection of the public . This is particularly so given the circuit court’s broad discretion in fashioning conditions of probation, the presumption that the court’s sentence is reasonable, and our obligation to loo k for reasons in the record to sustain the court’s probation condition. Sehrbrock’s specifi c arguments to the contrary are unpersuasive.

3 We note that g ranting sentencing courts substa ntial discretion in fashioning conditions of probation is also consistent with the goal of promoting probation as an alternative to a prison sentence.No. 2022AP2153

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13 ¶ 29 Sehrbrock argues that although he had been drinking alcohol at the time of the offense, he was not driving the vehicle that brought him to the gas station and he has no history of OWI

- relate d offenses. To the extent that Sehrbrock means to suggest that the ignition interlock condition is unreasonable as a matter of law because it is being imposed for a non

- OWI

- related offense or to a person without an OWI

- related history, he cites no authori ty to support such a suggestion. 4

¶ 30 T o the extent that Sehrbrock means to argue that a condition of probation must directly relate to the crime for which a defendant is sentenced, he
fails to cite authority for this premise, either from this jurisdiction or any other. Indeed, this court has rejected this argument and uph e ld conditions of probation not directly related to the offense for which the defendant is convicted if the
conditions are ot herwise valid. For example, in State v. Beiersdorf , 208 Wis. 2d 492, 503 n.9, 561 N.W.2d 749 (Ct. App. 1997), we concluded that a “condition of probation need not directly relate to [the] crime for which [a] defendant [was] placed on probation where [the] defendant needs to be rehabilitated from related conduct.”

¶ 31 We reached the same conclusion in State v. E. Miller , 175 Wis. 2d 204, 208

- 09, 499 N.W.2d 215 (Ct. App. 1993)

. There, the defendant was convicted of burglary and theft. Id. at 207. The defendant, who had been convicted in recent years for harassing telephone calls to women, challenged a

4 We note that although Sehrbrock refers to the ignition interlock statute, W IS

. S TAT

. § 343.301, in arguing that the seven

- year duration of the condition is harsh and excessive (which we discuss later in this opinion), he does not argue that under this statute, an ignition interlock may only be imposed for the OWI

- related offenses expressly enumerated in that statute.No. 2022AP2153

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14 condition of his probation in the burglary and theft c ase that prohibited him from telephoning any woman without the permission of his proba tion officer. Id. at 207

- 08. We concluded that although the defendant’s past criminal conduct of making sexually explicit telephone calls to women was unrelated to the offenses for which he was convicted, the defendant needed to be r ehabilitated from tha t conduct. Id. at 209

- 10. Because the condition was rationally related to the
defendant ’ s need for rehabilitation, it was “reasonable and appropriate” as required by the probation statute , W IS

. S TAT

. § 973.09. E. Miller , 175 Wis. 2d at 210 ; s ee also Oakley , 245 Wis. 2d 447, ¶1 (court properly exercised its discretion
in impos ing a condition of probation that prohibit ed a father of nine , who had intentionally refused to pay child support , from having another child until he could show that he could support that child and his current chi ldren).

¶ 32 We have reached the same conclusion in the context of extended supervision

. See State v. Koenig , 2003 WI App 12, ¶7 n.3, 259 W is. 2d 833, 656 N.W.2d 499 (“For purposes of revie w ... authority relating to the propriety of conditions of probation is applicable to conditions of extended supervision.”)

. For example, in B. Miller , 283 Wis. 2d 465, we reject ed an argument by a defendant
who was convicted of OWI that the circuit court lacked authority to order him to fulfill his child support obligations in an unrelated paternity action from over 10
years ago as a condition of extended supervision in the OWI case . We noted that
the circuit court’s broad discretion in ordering conditions of extended supervision “is subject only to a standard of reasonableness and appropriateness ,” which in turn is “ determined by how well it serves the dual goals of supervision:
rehabilitation of the defendant and the protection o f a state or community interest

. ” Id. , ¶11; s ee also State v. Rowan , 2012 WI 60 , ¶ ¶7, 10, 18, 25 , 341 Wis. 2d 281 , 814 N.W.2d 854 (rejecting defendant’s challenge to a condition of extendedNo. 2022AP2153

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15 supervision imposed for battery con viction that permitt ed defenda nt’s person, residence , and vehicle to be subject to search for a fir e a r m at any time without probable cause or reasonable suspicion ).

¶ 33 Sehrbrock concedes that “a condition of probation need not be directly re lated to the crime for which the defendant was convicted

. ” However, relying on E. Miller , 175 Wis. 2d 204, and Rowan , 341 Wis. 2d 281 , he argues that if the condition is not directly related to the crime of conviction, it mus t address a specifi c area of past criminality in which the defendant was recently
involved. Our review of the se case s does not reveal such a requirement , and we rej e ct Sehrbrock’s argument on that basis

. ¶ 34 Sehrbrock also argues that the ignition interlock conditi on was based solely on the circuit court’s “idiosyncrasies” or “eccentricities

. ” Specifically,
Sehrbrock notes t he court’s references to the societal harms of alcohol and drug

use and the court’s comparison of addiction to the “devil.” Sehrbrock asserts that
the court had “strong opinions about alcohol and other substances which led to” its imposition of the condition . He further asserts that the court imposed the condition “because, in its view, the fact that Mr. Sehrbrock was intoxicated at the
time of the offense mean t that he had ‘surrendered [his] decision making to the
dev il’ and there is no telling what he will do. ” Th ese assertion s overstate the
connection between the court’s comments and its imposition of the condition, and ignore the context in which the court’s comments were made.

¶ 35 T he circuit court made these co mments in the context of a case in which, due to Seh r

brock’s offense, his criminal history , his pending hit and run charge, and his substance abuse issues, there was risk involved in placing
Seh r brock on probation as requested

. As the State argues, “Consistent with [theNo. 2022AP2153

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16 court’s] responsibility to protect the community from a felon it was leaving out of prison, it used a tool at its disposal to keep him from driving [w hile intoxicated] and endangering others.” The court also referenced its experience as the “drug

court judge ” and how difficult it can be for individuals with substance abuse issues to stay sober

. For example, the court describe d watching people “go to in patient
and

... hold their breath for a y e ar in dru g court and walk out of there with a certificate and get arrested two days later for dealing.” It is within this context that

t he court analogized addiction to being “up ag a inst th e most powerful de v il in the world.” We agree with the State that, in context, the court’s statements reflect the court’s “understandable frustration at the heartbreak of addiction, and its
understandable attempt to impress on an 18

- year

- old defendant how high the stakes are.” Sehrbrock has not shown that the condition was based on the court’s idiosyncrasies rather than on the dual goals of probation: Sehrbrock’s rehabilitation and protection of the public.

¶ 36 Seh r brock also argues tha t the condition was u nne cessary because
the circuit court had before it at sentencing information that Sehrbrock w a s no longer consuming alc o hol and because the court’s other conditions , such as absolute sobriety and substance abuse treatment , “already off er protection of the community and facilitate Mr. Sehrbrock’s rehabilitation .” In support, he cites
Sta te v. Stewar

t , 2006 WI App 67, 291 Wis. 2d 480, 713 N.W.2d 165, in which
this court concluded that a probation condition that banished a defendant from a township in order to protect several n e ighbors he had victimized was
unconstitu t ionally overbroad. In addressing whether the aims of the condition could be accomplished in a way that was not unduly restrictive of the defendant’s liberties, we observed t hat “the no [

- ] contact condition of his probation andNo. 2022AP2153

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17 supervision, a more narrowly drawn restriction on [ the defendant], already offers protection to his v ictims and facilitates his rehabi li tat i on.” Id. , ¶16.

¶ 37 Stewart is not on point as it involves a n overbreadth challenge , which analyz es whether the condition “is broader than necessary to accomplish [its] purposes.” See id

. Sehrbrock points to no language in Stewar t that suggests that a condition of probation is not “reasonably related” to the goals of rehabilitation and protection of the public if other conditions are imposed that
address the same purpose . Moreover, i n seeking to advance Sehrbrock ’s rehabilitation and the protec tion of the public, the circuit court in this case was not required to accept the proposition that Sehrbrock would c ontinue to abstain from
alcohol

. ¶ 38 Sehrbrock also argues that the ignition interlock condition could be counterproductive , rather than conducive, to his rehabilitation and to public protection . He states that the high cost of installing, maintaining , and removing the ignition interlock (which he asserts is approximately $7,483) could prevent him from having it installed or maintained and therefore “could prevent [ him ] from obtaining and maintaining employment, or attending treatment, thus impeding his rehabilitation, contrary to the community interest.” However,
Sehrbrock fails to cite any facts from the record showing that there is any likelihood that employment or treatment would be prevented as a result of the condition. He likewise fails to cite any auth ority for the proposition that when a court places a defendant on probation, it may not impose a condition that requir es a substantial expenditure.

¶ 39 In sum , we conclude that Se hr brock has not met his burden of establishing that the ignition interlock condition was not “reasonably related” toNo. 2022AP2153

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18 Sehrbrock’s rehabilitation or the protection of the public, or that it otherwise
constituted an erroneous exercise of discretion. 5

Harsh and Excessive

¶ 40 Relying on the case law quoted below, Seh r brock argues that if we conclude that the ignition interlock condition is reasonably related to the dual goals o f probation, we should nevertheless vacate the condition because its imposition for seven years is unduly harsh and excessive. In making this argument, Sehrbrock notes that at the post convi c tion hearing the prosecutor expressed support for reducing the length of the requirement.

¶ 41 “When a defendant argues that his or her sentence is excessive or unduly harsh, a court may find an erroneous exercise of sentencing discr etion ‘only where the sentence 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. G rindemann , 2002 WI App 106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507 (quoting Ocanas v. State , 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975)). We review the circuit court’s determination that its sentence was not unduly harsh for
an erroneous exercise of discretion

. State v. Giebel , 198 Wis. 2d 207, 220, 541 N.W.2d 815 (Ct. App. 1995).

5 Sehrbrock states that the circuit court’s rationale for imposing the condition “could be applied to any defendant who committed a crime while under the influence, or who has a history of alcohol abuse.” However, our inquir y on appeal is to determine whether Sehrbrock has met his burden of establishing an erroneous exercise of the court’s discretion under the specific facts of this case. As explained at length above, he has not.No. 2022AP2153

- CR

19 ¶ 42 As a preliminary matter, we observe that the case law on which Sehrbrock relies addresses sentences generally, not conditions of probation specifically . Seh r brock does not argue that his sentence , as a whole , is harsh and excessive, only that one particular condition is. S e h r brock cites no case law in which our courts have applied the “harsh and excessive” framework to a single condition of probation , nor does he explain why such a framework applies. As stated, the standard for reviewing whether a circuit court properly exercised its
discretion in imposing a condition of probation is whether the condition reasonably relate s to the defendant’s rehabilit ation and to the protection of the public. However, bec ause the State does not specifically argue that the harsh and
excessive framework may not apply to a condition of probation, we assume without deciding that it does , and we reject Seh r brock’s arguments under that
framework

. ¶ 43 In support of this argument, S e h r brock again relies on the cost of installing, maintaining and removing the ignition interlock, which he argues could prevent him from having the fina n cial means to live in dependen t ly, obtain an d
maintain employment , or attend treatment. Again, S e h r brock points to no facts of
record to indi c a t e any likelihood of such outcomes . Accordingly, he has not met
his burde n of establishing that the condition “ ‘ is so excessive and u nusual 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.’” Grindemann , 255 Wis. 2d 632, ¶31 (quoted source omitted).

¶ 44 Sehrbrock also argues that the seven

- year requirement is “more than twice as long as the maximum [ignition interlock ] requirement that could be imposed on a defendant convicted of operating while intoxicated third offense or above.” He ar gues that because he does not have a history of OWI offenses andNo. 2022AP2153

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20 was not driving at the time of the offense, “ordering him to have an [ignition interlock] for longer than someone who has put the community at risk by drinking and driving on multiple occasio ns is harsh and excessive. ” We cannot conclude
under the specific facts of this case

— including Sehrbrock’s significant criminal history , his substance abuse issues , his pending hit and run charge , the role that alcohol played in this offense and at least one prior offense, and the circuit court ’s acknowledge ment that a prison sentence would have been warranted

— that the probation condition “shock [s] public sentiment” because it is longer than the
maximum required in a third

- or

- above OWI offense.

¶ 45 Finally, we stress the circuit court’s stated willingness to remove the
condition if Sehrbrock showed that he was successfully addressing his alcohol
abuse issues. Although the court reasonably conclud ed at the postconviction hearing that Sehrbrock had not shown that removal of the condition was appropriate at that time, Sehrbrock is not precluded from making such a showing
in the future.

CONCLUSION

¶ 46 For the reasons stated, Sehrbrock has failed to establish that the
circuit court erroneously exercised its discretion in ordering an ignition interlock as a condition of Sehrbrock’s probation. Accordingly, we affirm the judgment of conviction and the order denying Sehrbrock’s motion for s entence modification

.

By the Court.

— Judgment and order affirmed

. Not recommended for publication in the official reports.No. 2022AP2153

- CR(D)

¶ 47 TAYLOR, J. ( dissenting ). I conclude that under the facts of this case, it was an erroneous exercise of discretion for the circuit court to require the use of an ignition interlock device (IID) as a condition of probation.

¶ 48 Sehrbrock pled guilty to robbery with use of force as a party to a crime when, at seventeen years old, he and another teenager stole several packs of cigarettes from a gas station convenience store one early morning in
November 2020. In the process of committing this crime, Sehrbrock’s co

defendant sprayed the store clerk with pepper spray and Sehrbrock threw several canned beverages at the clerk before they fled on foot. Sehrbrock reported being highly intoxicated at the time of the of fense. As detailed in the presentence investigation (PSI), Sehrbrock admitted to drinking alcohol heavily when he was sixteen and seventeen years old as well as using controlled substances from a
young age.
¶ 49 At the time of sentencing, S ehrbrock was almost nineteen years old, he had voluntarily completed inpatient alcohol treatment, and he was in counseling with an alcohol and drug addiction therapist which Sehrbrock had initiated several months following this offense. There is nothing i n the record at sentencing or in the postconviction proceedings that Sehrbrock ever drove or operated a vehicle while intoxicated. His criminal history consisted of three 2020 incidents when Sehrbrock was sixteen years old: two felony convictions for pos session with intent to deliver less than 200 grams of THC as party to a crime and a misdemeanor criminal damage to property conviction which appears to haveNo. 2022AP2153

- CR(D)

2 involved damaging his own television. Sehrbrock also had a juvenile adjudication for resisting or obstructing an officer when he was fifteen years old.

¶ 50 At sentencing on this case, both of the parties and the Department of Corrections recommended that the circuit court withhold sentence and place Sehrbrock on a period of probation. The parties recommended a term of probation ranging from five to eight years, with one year of conditional jail time as well as
other conditions as set forth in the PSI. The circuit court withheld sentence and placed Sehrbrock on seven years of probation, incorporating the probation conditions that had been recommended by the parties and in the PSI, which included one year of jail, maintaining absolute sobriety and p articipat ing and complet ing all programming recommended by the Department of Corrections,
i ncluding a cognitive

- based program

. 1

¶ 51 At the conclusion of the sentencing hearing, the circuit court questioned “[h]ow about ignition interlock? Somebody who drinks as much as he drinks ought not be on the road unless he’s in a car that has ignition interlock.” The court stated that “[a]ll t hese people that came to court are pulling you this way to keep you from falling over and the devil is pulling the other way. You got to side ... with either your friends and family or the devil. Bad enough they gotta

1 Additional probation conditions ordered by the circuit court included: prohibiting Sehrbrock from visiting the premises of any establishment whose primary business activity involves the sale or distribution of alcoholic beverages, including bars, taverns, liquor stores and beer tents ; prohibiti ng Sehrbrock from us ing or possess ing any controlled substances (without a valid prescription) or drug paraphernalia, nor be in the presence of anyone who does ; requiring Sehrbrock’s t reatment provider to report progress or lack thereof including lack of a dequate effort or engagement to the probation agent and, if requested by the Court, to the Court ; and requiring the t reatment provider to submit at least quarterly progress reports to the probation agent and , if requested by the Court, to the Court. The c ourt also warned Sehrbrock that, on probation, he would be periodically and randomly tested for drugs.No. 2022AP2153

- CR(D)

3 pull against the devil. If they have to pull against you, then you and the devil are gonna win. ... [T]he devil has his claws into you and it’s going to take a lot to pry them loose.”

¶ 52 Sehrbrock brought a postconviction motion to remove the IID probation condition or reduce the seven

- year probationary time period for which it was ordered. In rejecting Sehrbrock’s motion, the circuit court recognized that Sehrbrock had no history of intoxicated driving, but again focused on the dangers of alcohol: “[o]nce you get to the poin t where you are intoxicated, you have given the keys to your life to the devil. And everybody who is in contact with you is in danger because there’s no telling what you’re going to do.”

¶ 53 Circuit courts have broad sentencing discretion, including in imposing all “reasonable and appropriate” conditions of probation and tailoring specific probation conditions to the individual defendant. See W IS

. S TAT

. § 973.09 (1)(a); see also State v. Oakley , 2001 WI 103, ¶12, 245 Wis. 2d 447, 629
N.W.2d 200, opinion clarified on denial of reconsideration , 2001 WI 123, 248 Wis. 2d 654, 635 N.W.2d 760. Whether a probation condition is “reasonable and appropriate” is determined by how well it serves the dual goals of rehabilitating the defendant and protec ting the public

. State v. Miller , 2005 WI App 114, ¶11, 283 Wis. 2d 465, 701 N.W.2d 47 . Ultimately, the determination of whether a probation condition is “reasonable and appropriate” depends o n the factual record
or the reasonable inferences that can be derived from the factual record. See State v. Handley , 173 Wis. 2d 838, 842

- 43, 496 N.W.2d 725 (Ct. App. 1993) ( “ D iscretion contemplates a process of reasoning which must depend on facts that are of record or that are reasonably derived by inference from the record.” ). As a result, “this court will uphold a circuit court’s discretionary decision if the circuit court examined the relevant facts, applied a proper standard of law, and using aNo. 2022AP2153

- CR(D)

4 demonstrated rational process, reached a conclusion that a reasona ble judge could reach.” State v. Jenkins , 2007 WI 96, ¶30, 303 Wis. 2d 157, 736 N.W.2d 24.

¶ 54 However, i f the facts in the record and reasonable inferences
therefrom do not support a circuit court’s decision to impose a condition of probation, this court may conclude that the court erroneously exercised its
discretion. Handley , 173 Wis. 2d at 843

- 45. For instance, in Handley , the circuit court required the defendant to pay $1,000 in counseling costs for each of the victims as a condition of probation. Id. at 841. This court held that this condition of probation was an erroneous exercise of discretion because there was no
evidence in the record that the victims neede d psychological treatment. Id. at 843. This court also held that the determination of $1,000 for each victim was arbitrary and not supported by any facts in the record. Id. at 844; see also State v. Alpers , No. 2 015AP1784, unpublished slip op. ¶¶16

- 18 ( WI App Jan. 12, 2016) (in a decision citable only as persuasive authority, pursuant to W IS

. S TAT

. R ULE 809.23(2)(b), this court reversed a court’s order that the defendant install an IID on her husband’s car, in part, because the order was not factually su pported by the record).

¶ 55 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. Th e 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. T he record is nonexistent, however, when it comes

to an y 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 recordNo. 2022AP2153

- CR(D)

5 also contains no allegati ons 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. At the time of sentencing, there was no discussion ab out nor evidence in the record regarding whether a vehicle was titled or registered in Sehrbrock’s name, whether he had access to or control over any vehicle or whether he was entitled to a reduction in the IID cost. The sentencing hearing transcript sugg ests 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.

¶ 56 This court independently review s the record to look for reasons to support the circuit court’s exercise of discretion. See State v. Pharr , 115 Wis. 2d 334, 343, 340 N.W.2d 498 (1983). The only reference in the record about Sehrbrock’s operation of a vehicle is a single statement from the prosecutor at the sentencing hearing that Sehrbrock had a pending charge for a “hit and run” in Milwaukee County , which can be considered at sentencing. See Elias v. State , 93
Wis. 2d 278, 284, 286 N.W .2d 559 (1980) (sentencing court can consider

“ offenses which were uncharged and unproven ” and “ pending charges for which there has been no conviction”)

. Even so, there is no factual support in the record
that Sehrbrock had ever driven intoxicated or even owned or had regular access to a vehicle. 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 drivin g or operating aNo. 2022AP2153

- CR(D)

6 vehicle while intoxicated. 2 Nor does there appear to be any case law in other jurisdictions where an IID has been required as a condition of probation in a factually analogous situation not involving a vehicular crime or intoxicated
drivi ng. The IID probation condition in this case is simply not related to Sehrbrock’s rehabilitation or protecting the public because the condition pertains to conduct (intoxicated driving) that is absent from the facts in this case, absent from Sehrbrock’s c riminal history, and absent from his driving history.

¶ 57 For these reasons, I conclude that imposing an IID as a condition of probation was an erroneous exercise of discretion. I would remand this case to the circuit court to amend the ju dgment of conviction to strike the IID probation
condition.

2 Sehrbrock does not raise in this appeal the issue of the circuit court’s authority to impose an IID as a probation condition for an offense not enumer ated in W IS

. S TAT

. § 343.301(1g)(a), which requires that a circuit court order an IID when a defendant: (1) improperly refused to take an intoxication test under W IS

. S TAT

. § 343.305; (2) violated certain OWI

- related statutes

— W IS

. S TAT

. §§ 346.63(1) or (2 ), 940.09(1), or 940.25

— with a blood alcohol concentration of 0.15 or more at the time; or (3) violated one of those OWI

- related statutes with one or more prior OWI convictions as defined by W IS

. S TAT

. § 343.307(1). Because this issue is not raised on app eal, I do not address it. See State v. Pettit , 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (we may decline to address undeveloped arguments because we “cannot serve as both advocate and judge”).