State v. Andrell Marquise Wesley

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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.

October 13, 2026
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 809.82.
Appeal No. 2024AP1600-CR Cir. Ct. No. 20D1CF464
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINITFF-RESPONDENT,
V.
ANDRELL MARQUISE WESLEY,
DEFENDANI-APPELLANT.

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

Before Donald, C.J., Colon, P.J., and Geenen, J.

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().

q1 ©£PERCURIAM. Andrell Marquise Wesley appeals from a judgment
of conviction and a circuit court order denying his postconviction motion for

No. 2024AP1600-CR
2
sentencing relief. Wesley pleaded guilty to possession of a firearm by a felon and
was sentenced to four years’ imprisonment consecutive to a federal sentence
previously imposed on Wesley for possession with intent to distribute fentanyl and
a gun charge.
¶2 Wesley filed a postconviction motion for sentencing relief, arguing
that his consecutive sentence was unduly harsh when compared against the
concurrent sentence received by a co-actor convicted of the same crime arising out
of the same events. The circuit court denied Wesley’s motion. We conclude that
the circuit court did not erroneously exercise its discretion by imposing Wesley’s
sentence consecutive to his federal sentence, and it adequately explained its decision
to do so.
BACKGROUND
¶3 In the early morning hours of September 2, 2020, police responded to
a report of gunshots fired outside a Milwaukee bar. At the scene, police recovered
multiple gunshot casings and located evidence of bullet strikes to nearby cars, the
door to the bar, several businesses in a strip mall, and a residence. Witnesses
reported seeing several people with guns, hearing someone yell “everyone get
down,” and then hearing approximately twenty-two shots that sounded like two
groups were shooting at each other.
¶4 Surveillance videos provided detailed footage of four subjects armed
with guns outside the bar in the parking lot, shooting at each other. From the videos,
police identified Wesley and another actor, Jovan Newman, as two of the shooters
based on their physical features and tattoos. Wesley had prior felony convictions
for possession of cocaine as a second or subsequent offense, including one
conviction less than two months before this incident. Newman also had a prior

No. 2024AP1600-CR
3
felony conviction approximately six years before the shooting incident for
substantial battery.
¶5 Two months after the shooting, Wesley and Newman were arrested
on federal criminal charges of possession with intent to distribute fentanyl and a
gun-related charge arising out of an unrelated incident.1 Wesley and Newman
separately pleaded guilty in federal court, and they were sentenced in their federal
cases before being sentenced in the circuit court for the shooting outside the bar. In
the federal case, Wesley was sentenced to 144 months’ imprisonment with 4 years
of supervised release. Newman was sentenced to 130 months’ imprisonment with
4 years of supervised release.
¶6 For their roles in the shooting, the State charged both Wesley and
Newman separately with one count each of first-degree recklessly endangering
safety using a dangerous weapon as a party to a crime and possession of a firearm
by a felon. Wesley’s charges included two penalty enhancers: the habitual
criminality repeater and the repeat firearm crimes enhancer. WIS. STAT.
§§ 939.6195(2), 939.62(1)(b) (2023-24).2 Newman’s charges did not include any
penalty enhancers.
¶7 Both Wesley and Newman pleaded guilty to the felon in possession
charge and had the first-degree recklessly endangering safety charge dismissed and
read in. The charge to which Wesley pleaded guilty did not include a penalty
enhancer. Newman’s case was resolved first, and he was sentenced to five years of
initial confinement and three years of extended supervision to run concurrent with
1 The record is unclear whether the gun-related charge was felon in possession of a firearm
or possession of a machine gun.
2 All references to the Wisconsin Statutes are to the 2023-24 version.

No. 2024AP1600-CR
4
his federal sentence.3 At Wesley’s sentencing, Wesley and the State made
“essentially a joint recommendation” for three and a half years of initial
confinement to run concurrent with his federal sentence. The circuit court was
aware that Newman had received a concurrent sentence.
¶8 In its sentencing decision, the circuit court considered the primary
sentencing factors: the gravity of Wesley’s crimes, his character and rehabilitative
needs, and the need to protect the public. It acknowledged that the sentence imposed
must be “the minimum amount of custody or confinement which is consistent with”
these sentencing goals.
¶9 The circuit court’s primary focus was the gravity of Wesley’s crimes.
Specifically, it observed that felon in possession of a firearm was “a 10 year felony”
that was “aggravated” because the incident was “insane, so violent, and so
dangerous.” Wesley’s criminal conduct related to the gun violence was “pretty
much as dangerous as it gets,” involving “multiple people just shooting at each
other,” with bullets “striking buildings and striking residences[.]”
¶10 In considering Wesley’s character, the circuit court found that
Wesley’s criminal history and his “past record is not good, it’s drugs,” including
most recently his “federal conviction for possession with intent [to distribute]
fentanyl, as well as a felon in possession or some other gun related charge” for which
he was serving “12 years in and four out[.]” The circuit court also took into account
Wesley’s previous state convictions going back to 2016 involving drug possession,
bail jumping, and domestic violence. The circuit court noted that Wesley had taken
3 The Honorable David Feiss sentenced Newman. The Honorable Laura Crivello
sentenced Wesley. We refer to Judge Crivello as the circuit court, and we refer to Judge Feiss by
name.

No. 2024AP1600-CR
5
responsibility by entering a plea and stating that he was sorry but refused to tell the
court anything more about his role in this “terrifying” shooting incident. The circuit
court found that Wesley was twenty-eight years old and had his “whole life ahead
of” him, that he needed to get his high school diploma or GED, that he had a positive
employment history, and that he had taken responsibility and was “somewhat
remorseful,” although it was skeptical of Wesley’s sincerity, stating that his apology
“seems coached.”
¶11 In considering the need to protect the community, the court found a
significant need to protect the community from the type of gun violence involved in
Wesley’s crime, that shootings in Milwaukee were “out of control,” and that Wesley
was not allowed to possess a gun when the shooting occurred. The court stated that
“the community cries out that they can’t have anymore. That too many of our people
are being killed.” Additionally, the circuit court found that Wesley’s risk to society
was “problematic” given that both the federal case and this case involved guns.
¶12 After considering the relevant factors, the circuit court specifically
considered whether to impose Wesley’s sentence concurrent to his twelve-year
federal sentence, which was the joint recommendation. However, the court found
that a concurrent sentence would result in Wesley not serving “an additional day for
being involved in a shooting, which struck buildings, struck residences, clearly
endangered so many.” The circuit court described its duty in sentencing Wesley as
“to look at how do we hold you accountable? How do we protect society? And
how do we rehabilitate you if—if there’s a way to do that.” The court sentenced
Wesley to two years of initial confinement followed by two years of extended
supervision, consecutive to his federal sentence. It explained that it was imposing
a consecutive sentence because Wesley’s crimes involved “the highest level of
violence,” making a consecutive sentence appropriate. Due to the seriousness of

No. 2024AP1600-CR
6
the offense, the court did not make Wesley eligible for programming because “the
time you serve, you should serve. That’s how dangerous this is to society,”
requiring the full confinement time “in order to protect the needs of society.”
¶13 Wesley filed a postconviction motion seeking an order modifying his
sentence to run concurrent to his federal sentence. Wesley contended that his
consecutive sentence was unduly harsh because it varied significantly from his co-
actors’ concurrent sentences even though they were all convicted of similar crimes
arising out of the same shooting event.4
¶14 The circuit court denied Wesley’s motion. The court observed that,
as a result of the shooting incident, Wesley and his co-actor Newman were charged
with first-degree recklessly endangering safety and felon in possession of a firearm.
Newman and Wesley both pleaded guilty to felon in possession of a firearm. While
Newman received a concurrent sentence of five years of initial confinement and
three years of extended supervision, Wesley received a consecutive sentence of two
years of initial confinement and two years of extended supervision.
¶15 The circuit court rejected Wesley’s claim that his sentence should be
modified because it was unduly harsh in light of the “disparity between the
sentences of [his] co-defendants” because this disparity was based on Wesley’s
“individual culpability and rehabilitative needs,” and Judge Feiss’s decision to
4 In his motion, Wesley made comparisons between his consecutive sentence and the
concurrent sentences of two of his co-actors in the shooting, Newman and Jamal Armon. He also
argued that the co-actors’ sentences were new factors that warranted sentencing modification.
On appeal, Wesley focuses only on Newman’s sentence, not Armon’s, and he does not
argue that Newman’s sentence is a new factor. We deem these arguments abandoned. A.O. Smith
Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue
raised in the [circuit] court, but not raised on appeal, is deemed abandoned.”). Accordingly, we do
not discuss anything related to Armon’s sentence nor do we analyze whether Newman’s sentence
is a new factor warranting sentencing modification.

No. 2024AP1600-CR
7
impose a concurrent sentence in his co-actors’ cases did “not render the consecutive
sentence [Wesley] received unduly harsh.” The court concluded that it had properly
exercised its discretion in finding “that a consecutive sentence was necessary to
adequately penalize [Wesley] for engaging in extremely reckless conduct and to
achieve the goals of punishment, deterrence, and community protection. Given the
exceptional facts and circumstances of this case, the sentence is not unduly harsh.”
¶16 Wesley appeals from the judgment of conviction and order denying
his postconviction motion for sentence modification.
DISCUSSION
¶17 Wesley challenges the circuit court’s exercise of its sentencing
discretion. We will uphold a circuit court’s sentence unless it reflects an erroneous
exercise of discretion. State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678
N.W.2d 197. We review a circuit court’s decision to make a sentence concurrent or
consecutive for an erroneous exercise of discretion. State v. Paske, 163 Wis. 2d 52,
67, 471 N.W.2d 55 (1991). Whether the sentence imposed was unduly harsh and
unconscionable is an issue we review for an erroneous exercise of discretion. State
v. Grindemann, 2002 WI App 106, ¶30, 255 Wis. 2d 632, 648 N.W.2d 507.
I. The circuit court did not erroneously exercise its discretion by
imposing Wesley’s sentence consecutive to his federal sentence, and
it adequately explained its decision to do so.
¶18 On appeal, Wesley makes two distinct arguments. First, he argues
that his consecutive sentence is unduly harsh as a substantive matter in comparison
to the concurrent sentence received by his similarly situated co-actor, Newman.
Second, Wesley argues that the circuit court erroneously exercised its discretion by
failing to adequately explain the sentencing disparity between his and Newman’s

No. 2024AP1600-CR
8
sentences (i.e., why Wesley received a consecutive sentence while Newman
received a concurrent sentence).
¶19 The circuit court has “wide discretion” to determine whether to
impose a concurrent or consecutive sentence. State v. Davis, 2005 WI App 98, ¶27,
281 Wis. 2d 118, 698 N.W.2d 823. The circuit court “may craft an appropriate
sentence by recognizing that concurrent sentences may unduly undermine
appropriate sentencing goals by giving a defendant a pass for some of his or her
crimes.” State v. Douglas, 2013 WI App 52, ¶20, 347 Wis. 2d 407, 830 N.W.2d
126. Although circuit courts are sometimes required to specifically explain why a
sentence was imposed consecutive rather than concurrent to another sentence—for
example, when multiple sentences are imposed at a single sentencing, see State v.
Hall, 2002 WI App 108, ¶¶2-3, 14, 255 Wis. 2d 662, 648 N.W.2d 41—such an
explanation is not required when the sentence imposed is “unrelated to past offenses
for which a defendant may still be serving time,” State v. Matke, 2005 WI App 4,
¶¶18-19, 278 Wis. 2d 403, 692 N.W.2d 265. See also State v. Ziegler, 2006 WI
App 49, ¶31 n.6, 289 Wis. 2d 594, 712 N.W.2d 76 (recognizing the distinction
between “a Hall case” and “a Matke case”).5 In the latter circumstance, all that is
required is that the circuit court considered the proper factors, explained its rationale
for the overall sentence, and the sentence is not unreasonable. Matke, 278 Wis. 2d
403, ¶19. “[T]he court does not erroneously exercise its discretion simply by failing
5 While we recognize the distinction between “instances where multiple sentences were
imposed at a single sentencing” and instances “where a sentence was ordered consecutive to a
sentence that the defendant was then serving,” State v. Ziegler, 2006 WI App 49, ¶31 n.6, 289 Wis.
2d 594, 712 N.W.2d 76, we consider it best practice for a circuit court to always explain why it
chose to impose a consecutive sentence as opposed to a concurrent one. Doing so makes it clearer
on appeal whether the circuit court actually exercised its discretion or instead acted arbitrarily or
improperly.

No. 2024AP1600-CR
9
to separately explain its rationale for each and every facet of the sentence imposed.”
Id.
¶20 When sentencing a defendant, the circuit court should specify the
objectives of the sentence on the record and must consider the protection of the
public, the gravity of the offense, and the rehabilitative needs of the defendant, as
well as any applicable mitigating or aggravating factors. WIS. STAT. § 973.017(2);
Gallion, 270 Wis. 2d 535, ¶40. In doing so, the circuit court “possesses wide
discretion in determining what factors are relevant to its sentencing decision.”
Gallion, 270 Wis. 2d 535, ¶68. In the exercise of its discretion, the circuit court
determines both which factors are relevant and the weight to be given to each factor,
and it need only discuss the factors it believes are relevant. State v. Stenzel, 2004
WI App 181, ¶¶9, 16, 276 Wis. 2d 224, 688 N.W.2d 20.
¶21 As a general matter, “[i]ndividualized sentencing ... has long been a
cornerstone to Wisconsin’s criminal justice jurisprudence.” Gallion, 270 Wis. 2d
535, ¶48. “No two convicted felons stand before the sentencing court on identical
footing ... and no two cases will present identical factors.” State v. Lechner, 217
Wis. 2d 392, 427, 576 N.W.2d 912 (1998) (citation modified). “There is no
requirement that defendants convicted of committing similar crimes must receive
equal or similar sentences.” Id. For a sentencing disparity between two co-
defendants to be improper, the complaining defendant must show that the “disparity
was arbitrary or based upon considerations not pertinent to proper sentencing
discretion.” Ocanas v. State, 70 Wis. 2d 179, 187, 233 N.W.2d 457 (1975).
¶22 While disparity in sentences between similarly situated co-defendants
may be unduly harsh and violate equal protection if the factors relied upon by the
circuit court to impose different sentences are improper or arbitrary, id., “leniency

No. 2024AP1600-CR
10
in one case does not transform a reasonable punishment in another case into a cruel
one,” State v. Perez, 170 Wis. 2d 130, 143-44, 487 N.W.2d 630 (Ct. App. 1992).
Sentencing disparity between co-actors is “not improper if the individual sentences
are based upon individual culpability and the need for rehabilitation.” State v.
Toliver, 187 Wis. 2d 346, 362, 523 N.W.2d 113 (Ct. App. 1994). As long as the
circuit court based its sentence on relevant factors and set forth that basis on the
record, parity among co-defendants is not required. Ocanas, 70 Wis. 2d at 187;
Toliver, 187 Wis. 2d at 362. The defendant has the burden to show that the disparity
“was arbitrary or based upon considerations not pertinent to proper sentencing.”
Perez, 170 Wis. 2d at 144.
¶23 We conclude that Wesley failed to show that the disparity between his
consecutive four-year sentence and Newman’s concurrent eight-year sentence was
arbitrary or based on considerations not pertinent to proper sentencing. Although
the circuit court was not required in this case to specifically explain why it imposed
a consecutive rather than a concurrent sentence (i.e., this is a Matke case, not a Hall
case), it explained in detail why it was imposing a consecutive sentence and why it
believed a concurrent sentence was not adequate to meet its sentencing goals.
¶24 In determining whether to impose a concurrent or consecutive
sentence on Wesley, the circuit court emphasized the gravity of Wesley’s crimes,
addressed the need to protect the public, and considered Wesley’s culpability and
character, including his criminal record. The circuit court’s decision to impose
Wesley’s sentence consecutive to his federal sentence was specifically based on the
court’s conclusion that a concurrent sentence would result in Wesley not serving
“an additional day for being involved in a shooting, which struck buildings, struck
residences, [and] clearly endangered so many.” The circuit court also concluded
that a consecutive sentence properly held him accountable, was necessary to protect

No. 2024AP1600-CR
11
the community, and was necessary for his rehabilitation. All of the factors that the
circuit court considered are considerations that are pertinent to proper sentencing.
See Gallion, 270 Wis. 2d 535, ¶40. Therefore, the circuit court’s decision to impose
Wesley’s sentence consecutive to his federal sentence was fully explained, not
arbitrary, and based entirely on considerations pertinent to proper sentencing. See
Ocanas, 70 Wis. 2d at 187.
¶25 Wesley argues that the circuit court erroneously exercised its
discretion by not specifically justifying the disparity between his sentence and
Newman’s sentence. He relies on State v. Giebel for the principle that the “sentence
given to a similarly situated co[-]defendant is relevant to the sentencing decision[.]”
Id., 198 Wis. 2d 207, 220-21, 541 N.W.2d 815 (Ct. App. 1995). However, the court
in Giebel also clarified that a similarly situated co-defendant’s sentence “is not
controlling” but merely “relevant to the sentencing decision[.]” Id. at 221
(emphasis added).
¶26 Here, the circuit court, in the exercise of its discretion, determined that
other factors, such as the gravity of the offense and the need to protect the
community, were more important than the fact that Newman received a concurrent
sentence. It is within the circuit court’s discretion to determine what factors are
relevant and the weight to be given to each factor, and the circuit court need only
discuss the factors it believes are relevant. Gallion, 270 Wis. 2d 535, ¶68; Stenzel,
276 Wis. 2d 224, ¶¶9, 16. “[T]he court does not erroneously exercise its discretion
simply by failing to separately explain its rationale for each and every facet of the
sentence imposed.” Matke, 278 Wis. 2d 403, ¶19.
¶27 Wesley also relies on Hall, 255 Wis. 2d 662, ¶8, for the proposition
that when “sentencing a defendant to consecutive sentences, the [circuit] court must

No. 2024AP1600-CR
12
provide sufficient justification for such sentences[.]” As we explained earlier in this
opinion, the rule in Hall applies only where multiple sentences are imposed in a
single sentencing and not where a sentence is ordered consecutive to a sentence that
the defendant is then serving. Ziegler, 289 Wis. 2d 594, ¶31 n.6.
¶28 However, setting aside the fact that the circuit court was not required
to specifically explain why it imposed a consecutive sentence as opposed to a
concurrent sentence, the court in this case provided adequate justification for
imposing Wesley’s sentence consecutive to his federal sentence. The circuit court
explained that the gravity of Wesley’s crime, the need to protect the public, and
Wesley’s rehabilitative needs supported a consecutive sentence to ensure that he
served time for what was an incredibly dangerous shooting.
¶29 Wesley also points to federal law for the proposition that “[c]ourts
must also consider various other sentencing factors listed in [18 U.S.C.] § 3553(a),
including ‘the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.’” Hughes v.
United States, 584 U.S. 675, 681 (2018) (citation omitted). While there is no
analogous Wisconsin statute requiring that courts “avoid unwarranted sentence
disparities” between similarly situated defendants, such disparities are “relevant” to
a defendant’s sentencing under Wisconsin law, and we agree that significant
disparities between truly similarly situated defendants may pose constitutional
problems under certain circumstances. Giebel, 198 Wis. 2d at 220-21; see also
Ocanas, 70 Wis. 2d at 187. Here, however, the circuit court was aware that
Newman received a concurrent sentence when it sentenced Wesley, but it did not
find Newman’s sentence highly relevant. Instead, it placed greater weight on factors
such as the gravity of the offense and the need to protect the public.

No. 2024AP1600-CR
13
¶30 Wesley also argues that the circuit court erroneously exercised its
discretion because “‘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’” was roughly the same for both Newman and
Wesley, but the court did not explain why Wesley requires consecutive time to
address these sentencing goals. See Gallion, 270 Wis. 2d 535, ¶44 (citation
omitted). Wesley’s assertion that the circuit court was required to explain in detail
why his sentence was consecutive while Newman’s was concurrent is unsupported.
After considering the relevant factors, the court specifically concluded that
imposing a sentence of two years of initial confinement and two years of extended
supervision consecutive to his federal sentence was the minimum amount of custody
that was consistent with its sentencing goals. Again, it is within the circuit court’s
discretion to determine what factors are relevant and the weight to be given to each
factor, and the circuit court need only discuss the factors it believes are relevant to
its sentencing decision. Id., ¶68; Stenzel, 276 Wis. 2d 224, ¶¶9, 16.
¶31 Finally, Wesley argues that he made a prima facie showing that he
and Newman were similarly situated co-defendants and received substantially
similar federal sentences. Wesley argues that, having made a prima facie showing,
the burden shifted to the State to rebut the proposition that he and Newman are
similarly situated, but it failed to do so. According to Wesley, he discharged his
burden to show that his consecutive sentence was unduly harsh in comparison to
Newman’s concurrent sentence.
¶32 A circuit court has the authority to modify a criminal sentence “when
the court determines that the sentence is illegal or void, or when the court determines
that the sentence is unduly harsh or unconscionable.” State v. Harbor, 2011 WI 28,
¶35 n.8, 333 Wis. 2d 53, 797 N.W.2d 828 (citations omitted). A sentence is unduly

No. 2024AP1600-CR
14
harsh or unconscionable when 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.” Grindemann, 255 Wis. 2d 632, ¶31 (citation omitted).
¶33 Even assuming that such a burden-shifting framework applied in this
context, we question whether Wesley and Newman are, in fact, similarly situated
such that a disparity in their sentences raises concern. For example, in the federal
case, Wesley was sentenced to 144 months of initial confinement with four years of
extended supervision, while Newman was sentenced to 130 months of initial
confinement with four years of extended supervision. Additionally, in the federal
case, the seriousness of Newman’s criminal history placed him in Criminal History
Category III under the federal sentencing guidelines while Wesley’s criminal
history placed him in a more serious category, Criminal History Category VI. While
we do not have a full record of Newman’s criminal history, the record shows that
Wesley’s most recent felony occurred approximately two months prior to the
shooting incident giving rise to the charges in this case, while Newman’s most
recent felony was a little over six years prior to the shooting incident.
¶34 The differences continue in the case before this court. Wesley’s
original charges included two penalty enhancers that were absent from Newman’s
charges. Specifically, both of Wesley’s charges included penalty enhancers based
on Wesley being a repeat offender. The circuit court also commented that it
believed Wesley’s apology appeared “coached,” and we have no information with
respect to whether Newman apologized at all or Judge Feiss’s assessment of
Newman’s credibility if he did.

No. 2024AP1600-CR
15
¶35 In light of these significant differences, we are not convinced that
Wesley and Newman are similar enough to call into question the fairness of Wesley
receiving a harsher sentence than Newman for the same crimes arising out of the
same events. Wesley failed to demonstrate that his consecutive sentence was unduly
harsh or unconscionable.
CONCLUSION
¶36 For the foregoing reasons, we conclude that the circuit court did not
erroneously exercise its discretion by ordering that Wesley’s sentence run
consecutive to his federal sentence even though his co-actor, Newman, received a
concurrent sentence.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.