COURT OF APPEALS DECISION DATED AND FILED November 27, 2007 David R. Schanker Clerk of Court of Appeals |
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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 Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of
Plaintiff-Respondent, v. Khamsay Vongphakdy,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 PER CURIAM. Khamsay Vongphakdy appeals from a judgment of conviction and a postconviction order. The only issue on appeal is whether the circuit court properly exercised its sentencing discretion. We conclude that it did. We affirm.
Background
¶2 Vongphakdy pled guilty to one count of sexually assaulting a child in violation of Wis. Stat. § 948.025(1)(b) (2005-06).[1] A person violates this statute by committing three or more sexual assaults of the same child within a specified period of time if fewer than three of the assaults occur while the child is under thirteen. See id. Vongphakdy confessed to repeated assaults of his adolescent daughter over a three-year period. According to the complaint, the conduct involved approximately twenty incidents of penis-to-vagina and penis-to-mouth sexual intercourse. On several occasions, Vongphakdy assaulted his older daughter in the presence of his younger daughter.
¶3 The circuit court ordered a presentence investigation following Vongphakdy’s plea. The PSI report recommended imprisonment for fifteen to seventeen years, bifurcated as ten or eleven years of initial incarceration with the balance as extended supervision. The parties urged the court to reject this penalty. They jointly recommended a ten-year term of imprisonment, with only three years of initial confinement. Despite the parties’ request for more lenient treatment, the court imposed a seventeen-year term of imprisonment, bifurcated as ten years of initial confinement and seven years of extended supervision.
¶4 Vongphakdy moved for postconviction relief, claiming that the circuit court erroneously exercised its discretion by giving inadequate explanations for the range and length of its sentence, and by failing to explain why a shorter sentence was insufficient to achieve the sentencing goals. The court denied the motion and this appeal followed.[2]
Analysis
¶5 Vongphakdy concedes that the circuit court discussed the primary sentencing factors and relevant secondary sentencing factors. He further acknowledges that the court identified its sentencing objectives. His complaint is that the court “did not sufficiently explain its rationale for the specific sentence imposed …. [It] did not explain why ten years of confinement and seven years of extended supervision were each the correct length of the components of the sentence and how these components were expected to advance the sentencing objectives.” He dismisses the court’s postconviction decision as “post-sentencing rationalization” that cannot serve as support for the sentence imposed.
¶6 The seminal case in Wisconsin sentencing jurisprudence is McCleary
v. State, 49
¶7 “Circuit courts are required to specify the objectives of the
sentence on the record. These objectives
include, but are not limited to, the protection of the community, punishment of
the defendant, rehabilitation of the defendant, and deterrence to others.” Gallion, 270
¶8 The primary factors for the sentencing court to consider are “the
gravity of the offense, the character of the offender, and the need for
protection of the public.” State
v. Larsen, 141
¶9 Here, the court focused on the gravity of the offense, characterizing the conduct as “outrageous” and the effect on the victim as “devastating.” The court viewed the offense as aggravated based on the nature of the sexual conduct, the many assaults involved, and the fact that Vongphakdy victimized his older daughter in the presence of his younger daughter. In discussing character, the court noted with concern Vongphakdy’s lack of insight into his behavior. The court determined that the community required protection from Vongphakdy’s conduct.
¶10 Vongphakdy contends that the court failed to explain how its
sentence met the requirement of imposing no more than the minimum amount of
custody necessary to meet its sentencing goals.
See Gallion, 270
¶11 The court had an opportunity to explain its sentence further
when challenged by Vongphakdy’s postconviction motion.
¶12 Vongphakdy complains that the circuit court did not state why
it rejected the parties’ joint sentencing recommendation. The court was not required to do so. “[T]he court need
not explain why its sentence differs from any particular recommendation.” State v. Johnson, 158
¶13 The court considered Vongphakdy’s character and his
offense. It identified the relevant
factors that it considered in reaching its decision. See
Fisher,
285
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.