COURT OF APPEALS DECISION DATED AND FILED November 19, 2008 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 II |
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State of
Plaintiff-Respondent, v. Curtis J. Schmidt,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Brown, C.J.,
¶1 PER CURIAM. Curtis J. Schmidt has appealed from a judgment convicting him of five counts of possession of child pornography in violation of Wis. Stat. § 948.12(1m) (2005-06),[1] one count of exposing a child to harmful materials in violation of Wis. Stat. § 948.11(2)(a), and one count of sexual exploitation of a child in violation of Wis. Stat. § 948.05(1m). In exchange for Schmidt’s pleas of guilty to the possession of child pornography charges and his pleas of no contest to the charges under §§ 948.05(1m) and 948.11(2)(a), fifteen additional counts of possession of child pornography were dismissed and read in for purposes of sentencing.
¶2 The trial court sentenced Schmidt to consecutive sentences
totaling fifteen years of initial confinement and seventeen years of extended
supervision, eighteen months less than the total maximum sentences possible for
the convictions. Schmidt moved for
sentence modification and the trial court denied the motion. We affirm the
judgment and the order denying sentence modification.
¶3 The
issues on appeal relate solely to sentencing.
Schmidt contends that the trial court erroneously exercised its
discretion by considering disputed, unproven, and inaccurate information at
sentencing, and by giving undue weight to past undesirable conduct while
failing to consider positive factors. He
also contends that the trial court failed to explain why lengthy consecutive
sentences were necessary and appropriate.
We reject Schmidt’s arguments.
¶4 Sentencing
is left to the discretion of the trial court and appellate review is limited to
determining whether there was an erroneous exercise of discretion. State v. Gallion, 2004 WI 42,
¶17, 270
¶5 To
properly exercise its discretion, a trial court must provide a rational and
explainable basis for the sentence. State
v. Stenzel, 2004 WI App 181, ¶8, 276
¶6 An
erroneous exercise of discretion may occur if the trial court gives undue
weight to one factor in the face of other contravening factors. Ocanas v. State, 70
¶7 Schmidt’s
contentions that the trial court gave undue weight to his past undesirable
conduct and considered disputed and inaccurate information are
interrelated. Essentially, he objects to
the trial court’s consideration of information about his lengthy history of
misconduct related to sexual matters.
¶8 A defendant has a due process right to be sentenced on the
basis of accurate information. State
v. Tiepelman, 2006 WI 66, ¶9, 291
¶9 Based upon our review of the record, we are not persuaded that the trial court considered inaccurate or disputed information at sentencing.[2] In contrast, the record reveals that the trial court took care to protect Schmidt’s right to be sentenced based upon true and accurate information.
¶10 In reaching this conclusion, we note that prior to sentencing, Schmidt moved the trial court to disregard letters written by his brother, his brother’s wife, and a third person, and to prohibit those individuals from speaking at sentencing. At a hearing on the motion, the trial court recognized that problems might arise related to proving and rebutting the allegations made in the letters or in oral statements discussing those allegations. It stated that it would therefore limit its consideration of background information to information as set forth in the PSI.
¶11 At the commencement of sentencing, the trial court permitted Schmidt to make all of the corrections he requested to the PSI, encompassing ten pages of the twenty-five page report. Subsequently, when discussing allegations regarding sexual contact between Schmidt and his brothers, the trial court noted Schmidt’s denial and stated, “I’ll take him at his word for that.”
¶12 On appeal, the only specific inaccuracy alleged by Schmidt relates to his contact with two nephews. Schmidt contends that while he denied all but one instance of sexual contact with his nephew, Boyd, the trial court relied on disputed information indicating that it happened more than once. In support of this argument, Schmidt cites the following statement by the trial court:
[Schmidt] also, at a minimum, engaged in sexual contact with two nephews. According to him it didn’t occur until they were 17. Others find—I think Boyd said it started when he was nine, occurred about ten times. Reality is that Boyd was still only 17 when the incident occurred involving him and Mr. Schmidt. The complete disregard of what was going on around them was incredible. It appears that this first sexual contact between Boyd and Mr. Schmidt occurred while the rest of the family was celebrating Christmas, and it happened in a bathroom.
¶13 Nothing in the record supports Schmidt’s contention that the trial court’s statement contained inaccuracies. In denying Schmidt’s motion for sentence modification, the trial court stated that it relied on information that was essentially conceded by Schmidt and his counsel and that, “[a]s far as the information that I relied on with Boyd and John Schmidt, I took Mr. Schmidt’s version at face value.”[3] The trial court’s statement is supported by the record. As set forth in the PSI as corrected by Schmidt, Schmidt admitted to engaging in sexual activity with Boyd on more than one occasion beginning on Christmas Eve when Boyd was seventeen. Similarly, in the PSI, Schmidt admitted to one episode of sexual touching of John when John was seventeen and Schmidt believed he was sleeping. No basis therefore exists to conclude that the trial court relied on inaccurate or disputed information when it considered that, at a minimum, Schmidt had engaged in sexual contact with John and Boyd when they reached seventeen years old, and engaged in more than one episode of sexual contact with Boyd.
¶14 Schmidt’s next argument is that the trial court placed too much
weight on his past undesirable conduct and failed to consider contravening
considerations. Nothing in the record
supports this argument. As noted above,
the trial court was required to consider the
gravity of the offenses, the character of the defendant, and the protection of
the public. A defendant’s past history
of undesirable conduct is a relevant factor for a trial court to consider in
evaluating the defendant’s character and rehabilitative needs, and the public’s
need for protection from him.
¶15 In
assessing Schmidt’s character, the trial court considered that he had no prior
criminal record, was part of a long-established family run business, had raised
a family that remained supportive of him, and had a lengthy history of positive
community involvement. It considered
that he had cooperated with authorities when these charges arose, thus saving
E.A.G. the stress of a trial. However,
it also considered that he had a lengthy history as a consumer of child
pornography, as evidenced by the current charges and material retrieved from
his former home, including child pornography and photographs of the genitals of
young men taken by Schmidt in his role as a funeral home operator in the 1960s
and 1970s. It considered an incident in
a men’s room in 1969 or 1970 that led to a citation, and another incident about
ten years later in a viewing room of an adult book store for which Schmidt paid
a fine. While these incidents did not
lead to criminal charges, they were conceded by Schmidt. Based on his conduct and activities, the
trial court reasonably concluded that Schmidt should have realized he had
serious issues that he needed to confront, but he did not confront them.
¶16 In evaluating Schmidt’s past history of undesirable behavior, the trial court also considered the behavior with his nephews that he conceded in the PSI. Based on his lengthy history of aberrant behavior, the trial court concluded that Schmidt should have recognized that he needed counseling much sooner. However, instead of dealing with his problems, he engaged in the conduct for which he was convicted. In the trial court’s view, Schmidt knew that what he was doing was wrong but minimized responsibility for his actions. Based upon these factors, the trial court concluded that Schmidt had very serious issues and that he posed a substantial risk of reoffending. It concluded that he had enormous rehabilitative needs that could not be met in the community and that the public needed to be protected from him.
¶17 Nothing
in the record renders the trial court’s conclusions unreasonable or provides a
basis for this court to disturb its determination that Schmidt’s history
demonstrated that he posed a risk to the public that necessitated lengthy
confinement, regardless of his positive attributes. The mere fact that the trial court failed to
give the positive portions of Schmidt’s history the weight that he wished does
not constitute an erroneous exercise of discretion. See
Stenzel,
276
¶18 In
reaching this conclusion, we also reject Schmidt’s argument that the trial
court erroneously exercised its discretion by treating his community
involvement and social standing as a negative factor rather than a positive
attribute. A particular factor or
characteristic can be construed as a mitigating or aggravating factor depending
upon the particular defendant and case. State
v. Thompson, 172
¶19 Schmidt’s final argument is that the trial court erroneously exercised its discretion by imposing maximum consecutive sentences on six of the seven counts for which he was convicted, and a near maximum consecutive sentence on the remaining count, without providing an explanation of why consecutive sentences were warranted. Again, we conclude that the record supports the trial court’s exercise of discretion.
¶20 The “sentence imposed in each case should call for the minimum
amount of custody or confinement which is consistent with the protection of the
public, the gravity of the offense and the rehabilitative needs of the
defendant.” Gallion, 270
¶21 When a defendant is convicted of more than one offense, the
trial court may impose as many sentences as there are convictions and may
provide that each sentence is consecutive or concurrent. Wis.
Stat. § 973.15(2)(a).
Whether to make sentences consecutive, as opposed to concurrent, is
committed to the sound discretion of the trial court. Ramuta, 261
¶22 In
sentencing Schmidt, the trial court placed great weight on the seriousness of
the offenses. It discussed the
significant impact of child pornography on the children who appear in it and
noted that such pornography exists only because people like Schmidt provide a
market for it. It found that Schmidt’s
conduct toward E.A.G. was reprehensible, concluding that Schmidt had clearly
established a relationship with E.A.G. despite his youth and had attempted to
tangentially involve E.A.G.’s friend.
While acknowledging that the psychological assessment submitted by Dr.
Charles Lodl on Schmidt’s behalf indicated that, with intervention and
specialized sex offender treatment, Schmidt presented a low to moderate risk of
reoffending, the trial court concluded that the seriousness of the offenses,
the risk posed by Schmidt to the community, and his rehabilitative needs
necessitated lengthy confinement. In
imposing sentence, it also appropriately considered the deterrence of others,
noting that probation with county jail time would diminish the severity of the
offenses and send the wrong message to others who might consider engaging in
similar conduct.
¶23 In
light of these factors, the trial court concluded that consecutive sentences
totaling fifteen years of initial confinement and seventeen years of extended
supervision were warranted. It
reiterated these factors in denying postconviction relief, noting Schmidt’s
deep involvement in child pornography through the internet and adding that the
child pornography possessed by Schmidt was more of a collection than something
acquired through curiosity, and was very abusive of young children. It also reiterated its conclusion that
Schmidt posed a significant danger to the community, its concern about the
seriousness of the conduct involving E.A.G., and its goal of deterrence. It stated that these factors formed the basis
for its conclusion that consecutive sentences were warranted for each of the
violations.
¶24 Because
the trial court engaged in a thorough and meaningful sentencing analysis, no
basis exists to conclude that it erroneously exercised its discretion in
imposing consecutive and lengthy sentences.[4] The trial court explained at great length why
it was imposing the aggregate sentences it did, and considered appropriate
sentencing factors.[5] Nothing more was required. See Ramuta, 261
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version.
[2] The State acknowledges that a defendant has a due process right to be sentenced on the basis of accurate information, but contends that this does not mean that the trial court may consider only undisputed information. We need not discuss this argument because, as set forth in this decision, the trial court limited its consideration to information conceded by Schmidt.
[3] When
this court reviews a sentence, we look to the entire record, including the
reasons given by the trial court for denying postconviction relief. State v. Stenzel, 2004 WI App 181, ¶9, 276
[4] In
challenging the trial court’s decision to impose consecutive sentences, Schmidt
cites to American Bar Association (ABA) standards for imposing consecutive
sentences. However, the Wisconsin courts
have repeatedly refused to adopt the
[5] At
sentencing, the trial court acknowledged that Schmidt was sixty-eight years old
and that the sentence it imposed was harsh and would be very difficult for him. However, it reiterated its conclusion that
the circumstances called for a long period of incarceration and the removal of
Schmidt “from circulation.” The trial
court was not required to find that Schmidt’s age compelled a shorter
sentence. See Stenzel, 276