COURT OF APPEALS DECISION DATED AND FILED July 14, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. Joshua McKindra, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Joshua McKindra pled guilty to one count of second-degree sexual assault of a child. See Wis. Stat. § 948.02(2) (2007-08).[1] The court imposed a bifurcated sentence of ten years, comprised of three years of initial confinement and seven years of extended supervision. The only issue on appeal is whether the trial court properly exercised its sentencing discretion. We conclude that it did and, therefore, affirm.
¶2 The Criminal Complaint alleged that McKindra, on four separate occasions between October 1, 2007 and November 17, 2007, “ma[d]e” his then six-year-old stepsister “place his penis in her mouth.” The Complaint further alleged that McKindra told the victim “not to say anything” about the incidents. The Complaint charged McKindra with one count of first-degree sexual assault of a child. In plea negotiations, the State agreed to amend the charge to second-degree sexual assault in exchange for McKindra’s guilty plea and to recommend a twelve-year sentence, comprised of three years of initial confinement and nine years of extended supervision. At sentencing, McKindra argued for probation. As noted, the court imposed a ten-year sentence, comprised of three years of initial confinement and seven years of extended supervision.
¶3 McKindra contends that the trial court erroneously exercised its discretion by not adequately considering various mitigating factors such as his lack of a prior criminal record, his remorse, and his acceptance of responsibility. McKindra emphasizes a psychological evaluation that suggested that McKindra was not a pedophile and that he needed long-term counseling. McKindra contends that the trial court “did not adequately address his upbringing, his education, athletic accomplishments, family ties and intelligence,” which he argues “mitigate the severity of the sentence.” McKindra contends that the court “did not explain the purpose of the sentence or the reason for the length imposed and in some instances drew a conclusion inconsistent with its analysis.” Specifically, McKindra takes issue with the court’s emphasis on protection of children which he argues is incongruent with his remorse, acceptance of responsibility, and the psychological assessment that he is not a pedophile. We are not persuaded by any of McKindra’s contentions.
¶4 Three primary sentencing factors should guide a circuit
court’s sentencing decision—the nature of the offense, the character of the
defendant, and society’s interest in punishment, deterrence and
rehabilitation.
¶5 “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.”
¶6 In this case, the circuit court stated that it had reviewed the presentence investigation report, the psychological evaluation proffered by McKindra, and the victim impact statement. The court stated that the sentencing was “difficult,” particularly because McKindra was nineteen-years old. The court acknowledged that the case originally had been charged as a first-degree sexual assault but the amendment of the charge did not “change certain factors with respect to the case, particularly the young age of the victim.” The court stated that McKindra’s actions had “a tremendous impact” on the victim and the families. The court noted that the “young age of the victim, … just six years old” was “extremely aggravating.”
¶7 The court also faulted McKindra for not being able to “impose in [him]self some sort of boundary or self-discipline in recognizing how wrong and how terrible it was to engage in this activity” with the “very young and vulnerable victim [who] had so much trust and respect” for her stepbrother. The court considered McKindra’s “position of trust and authority” with respect to the victim who “in essence idolized … and looked up to” McKindra to be an “aggravating factor.” The court also stated that the number of incidents was “an aggravating factor because it is apparent … that [McKindra] knew with each act that it was wrong.”
¶8 The court stated that it was considering McKindra’s character. The court noted that McKindra had “accepted responsibility” and that his “statement to the Court [was] very heartfelt and sincere in its expression of remorse.” The court stated, however, that the “need to protect children” and McKindra’s “treatment needs” called for a prison sentence. The court also rejected McKindra’s recommendation of probation because it would “unduly depreciate the serious nature of the offense.”
¶9 The record shows that the circuit court identified the
various factors that it considered in fashioning its sentence. The circuit court identified its sentencing
objectives—protection of children and McKindra’s need for treatment. Sexual abuse of children is viewed by our
society as one of the most heinous crimes a person can commit. See
Johnson
v. Rogers Mem'l Hosp. Inc., 2005 WI 114, ¶80, 283
¶10 Numerous factors are potentially relevant at sentencing. See
Gallion,
270
¶11 Finally, McKindra contends that the circuit court erroneously
resolved his postconviction motion by rejecting his contention that the
sentence was based on an improper consideration of the sentencing factors and
that the sentence was excessive. When
reviewing the denial of a postconviction motion for sentence modification, this
court’s role is to “review [the] motion … by determining whether the sentencing
court erroneously exercised its discretion in sentencing the defendant.” State v. Noll, 2002 WI App 273, ¶4,
258
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.