COURT OF APPEALS DECISION DATED AND FILED October 5, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Michael L. Jensen,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Michael Jensen appeals a judgment, entered upon his guilty pleas, convicting him of twenty-seven counts of possessing child pornography contrary to Wis. Stat. § 948.12(1m) (2005-06).[1] Jensen argues the trial court erroneously exercised its sentencing discretion and erred by denying his motion for postconviction relief. We reject Jensen’s arguments and affirm the judgment and order.
Background
¶2 An Information charged Jensen with fifty-three counts of possessing child pornography. In exchange for his guilty pleas to twenty-seven of the charged offenses, the State agreed to dismiss and read in the remaining counts and recommend consecutive sentences consisting of one and one-half years’ initial confinement and two years’ extended supervision on seven of the counts, for a total of ten and one-half years’ initial confinement and fourteen years’ extended supervision. With respect to the other twenty counts, the State agreed to recommend withheld sentences with three years’ probation on each count, concurrent with each other, but consecutive to the prison sentences. Jensen was convicted upon his guilty pleas and a presentence investigation report was ordered. The court ultimately imposed a sentence consistent with the State’s recommendation. Jensen’s postconviction motion for resentencing was denied and this appeal follows.
Discussion
¶3 Jensen argues the trial court erroneously exercised its
sentencing discretion. Sentencing lies
within the trial court’s discretion.
¶4 The sentence imposed should be the minimum amount of
confinement that is consistent with three primary sentencing factors: (1) the gravity of the offense; (2) the
character of the defendant; and (3) the need to protect the public. See
State v. Gallion, 2004 WI 42, ¶¶23, 59-61, 270 Wis. 2d 535,
678 N.W.2d 197. The weight to be given
each of the primary factors is within the discretion of the sentencing court
and the sentence may be based on any or all of the three primary factors after
all relevant factors have been considered.
¶5 Finally, when a defendant argues that his or her sentence is
unduly harsh or excessive, we will hold that the sentencing court erroneously
exercised its discretion “only where the sentence 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.” Ocanas
v. State, 70
¶6 Here, the court summarized Jensen’s offenses and the exposure he faced because of them. On each of the twenty-seven counts, Jensen faced a maximum term of three and one-half years’ imprisonment.[2] The court acknowledged the various factors it considered in fashioning a sentence, including the PSI, counsel’s respective arguments, the statements of Jensen and his supporters, the primary sentencing factors, and the sentencing objectives of rehabilitation and deterrence. After acknowledging these factors, the court examined information associated with them as either aggravating or mitigating Jensen’s case.
¶7 The court noted that Jensen had been employed in the truck driving industry and had the support of his family. On the other hand, it recognized Jensen had two prior misdemeanor convictions (for unrelated offenses) and had repeatedly committed this serious offense despite realizing it was wrong. With respect to Jensen’s character, the court acknowledged that other than his attraction to pornography involving children, there did not appear to be problems in any other area of Jensen’s life. Noting that the depicted victims were “real live children,” the court also indicated its intent to protect the public by making “sure that somebody who views these pictures would not act on them given the chance.”
¶8 With respect to rehabilitation, the court expressed skepticism that Jensen’s deviant sexual interest could be changed, stating:
It is suggested that [Jensen] is a good candidate for rehabilitation because he has been cooperative throughout these proceedings. And I am again no expert. But what little training I have had in these kind of things, it’s not easy to change a person’s preference for children, seeing children in this manner. So counseling—[h]e is willing to take counseling, but whether it will have an effect— Maybe he will learn how to deal with it, but I don’t think it will go away. That is my understanding of people who have these problems.
Turning to deterrence, the court emphasized:
Whatever I do here today, I want to deter this man and any others who might be tempted—or women for that matter—to not do it. We certainly don’t want these children exploited in the first instance and we don’t want people—[i]t can’t be good for a person to be viewing this kind of material. And there is always going to be the question of whether they would act out on it given the chance.
Acknowledging all of the sentencing recommendations, the court ultimately followed the State’s recommendation, concluding it was “appropriate.” Noting the existence of guidelines, the court expressed its belief that although they give the court an idea of what other courts might impose, “every judge has to make their own decision.”
¶9 Jensen challenges his sentence on grounds the court
erroneously exercised its discretion.
Citing Gallion, Jensen contends the court mentioned only some of the
factors relevant to sentencing, and specifically emphasizes what he believes
were three deficiencies in the court’s analysis. First, Jensen claims the court did not make
any findings regarding whether he needed close rehabilitative control. Gallion, however, does not require
the sentencing court to make specific findings regarding a defendant’s need for
close rehabilitative control. Rather, it
merely recognizes that a court may consider such a factor in the exercise of
its discretion. Gallion, 270
¶10 Second, Jensen contends the court failed to make any finding that he posed a danger to public safety. We disagree. The court observed, “[W]hat we’re trying to do here is to eliminate the source of child pornography which is the exploitation of young children and using them as sex objects.” As noted above, the court further indicated an intent to protect the public by making “sure that somebody who views these pictures would not act on them given the chance.” These comments exhibit recognition by the court that Jensen’s behavior in obtaining the pornography helped fuel an industry that contributes to the abuse and exploitation of children.
¶11 Third, Jensen argues the court failed to articulate why the
initial confinement imposed was necessary for the objective of deterrence, and
further failed to explain how it balanced deterrence with other factors to be
considered at sentencing. Gallion,
however, does not require a court to explain its rationale for the amount of
confinement imposed with any greater specificity than was done here. See
id.,
¶¶54-55. The Gallion court recognized
that “the exercise of discretion does not lend itself to mathematical
precision.”
¶12 Citing both the bifurcated sentence recommendation grid of the
Department of Corrections and the federal sentencing guidelines, Jensen
nevertheless argues his sentence was unduly harsh. We are not persuaded. Consistent with Gallion, the
court here delineated the primary sentencing factors and sentencing objectives
under the particular facts of Jensen’s case, emphasizing deterrence as the
dominating objective justifying the sentence imposed. Out of a maximum possible sentence of
ninety-four and one-half years’ imprisonment, Jensen received just over one-quarter
of that time. “A sentence well within
the limits of the maximum sentence is unlikely to be unduly harsh or
unconscionable.” State v. Scaccio, 2000 WI
App 265, ¶18, 240
¶13 Further, the cited sentencing guidelines do not alter this
analysis. With respect to the DOC’s
bifurcated sentence recommendation grid, Jensen contends “he would fall into a
square on the grid with, at most, one year of initial confinement” for his
Class I felony. This claim, however,
ignores the fact that Jensen was not convicted of just one Class I
felony—rather, he was convicted of twenty-seven Class I felonies. Moreover, despite Jensen’s emphasis on the
federal sentencing guidelines,
¶14 Finally, Jensen challenges the denial of his postconviction
motion for resentencing. Jensen argues
that at the postconviction motion hearing, the court failed to provide a
convincing rationale for the sentence imposed.
We are not concerned, however, with whether the court adequately
explained its sentencing rationale during postconviction proceedings but,
rather, whether its rationale at the original sentencing hearing supports the
sentence imposed.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.