COURT OF APPEALS DECISION DATED AND FILED July 15, 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 II |
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State of
Plaintiff-Respondent, v. Joseph N. Knaus,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J.,
¶1 PER CURIAM. Joseph N. Knaus appeals a judgment convicting him upon his no-contest plea to one count of second-degree sexual assault. We affirm because Knaus has not demonstrated that the trial court erroneously exercised its discretion in fashioning his sentence.
¶2 Knaus was charged with one count of second-degree sexual assault of an unconscious person, contrary to Wis. Stat. § 940.225(2)(d) (2007-08),[1] for touching his eighteen-year-old stepdaughter’s vaginal area while he thought she was asleep. Knaus admitted the assault to his wife and further admitted to police that he had done it on four separate occasions, beginning when the girl was seventeen. He pled no contest two months later.
¶3 Knaus faced a forty-year sentence. The State adopted the presentence report’s recommendation that the court sentence Knaus to a “moderate to lengthy” period of probation. Knaus sought four to five years’ probation. Nonetheless, the court sentenced him to six years’ imprisonment: two years’ initial confinement and four years’ extended supervision. The court denied Knaus’ postconviction motion for resentencing on grounds that Knaus had not cited a new factor justifying sentence modification and the imposed sentence was neither harsh nor unconscionable. Knaus appeals.[2]
¶4 Once again, Knaus contends his sentence is too harsh. 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 Knaus argues that the sentence is excessive vis-à-vis the need to protect the public, i.e., that the sentence was not limited to the least amount of confinement necessary to protect the public. He also contends that the trial court did not give enough consideration to mitigating circumstances presented by his “prosocial lifestyle” and “solid employment,” and that he was remorseful and sought treatment. A more appropriate sentence, he submits, would have been to follow the parties’ recommendation of probation.
¶6 In fashioning a sentence, the sentencing court must address three
primary factors: the nature of the offense, the character of the offender and
the need to protect the public. Thompson,
172
¶7 Here, the trial court acknowledged Knaus’ lack of a prior record, his admission to the crime, his asserted feelings of guilt and shame and the victim’s statement that she had forgiven Knaus. The court focused, however, on the “very, very serious offense” and the need to protect the public. It found that, spurred by his admitted pornography addiction, Knaus abused his position of trust and responsibility and failed to control his sexual urges even in his own home with his own stepdaughter, making him “a danger to the public, a danger to the victim, and a risk in the community.”
¶8 Knaus emphasizes that the parties and the PSI all recommended
probation. While he does not dispute
that the trial court is not obliged to follow any sentencing recommendation, see State v. Johnson, 158
¶9 The court expressly stated that in light of the circumstances
of the offense, to place Knaus on probation would unduly depreciate its
seriousness. This sufficiently justified
the court’s discretionary determination that Knaus’s offense warranted imposing
a sentence more severe than probation. See Gallion,
270
¶10 The trial court examined in classic fashion the primary sentencing factors, explained how they related to the facts of this case and supported its reasoning for going beyond the recommendations of probation. The court considered the arguments of counsel, the information in the PSI, the victim’s written statement and Knaus’ allocution. The resulting sentence represents a proper exercise of discretion.
¶11 As a final matter, we address the appendix Attorney Bridget
Boyle provides. She certifies that it
satisfies Wis. Stat. Rule
809.19(2)(a) which requires including the “portions of the record essential to
an understanding of the issues raised.”
The sentencing transcript was essential to understand the issue Boyle
raised, yet she provided but a single page of it, bringing her dangerously
close to filing a false certification. Filing
a false certification is a serious infraction of the rule and violates SCR
20:3:3(a) (2008), which prohibits a lawyer from knowingly making a false
statement of fact or law to a tribunal.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.