COURT OF APPEALS DECISION DATED AND FILED December 21, 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 I |
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State of Plaintiff-Respondent, v. Christopher John Johnson, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Christopher John Johnson pled guilty to one count of repeated sexual assault of the same child. See Wis. Stat. § 948.025(1)(b) (2005-06).[1] He appeals on the grounds that his sentence is based on inaccurate information, and the circuit court erroneously exercised its sentencing discretion. We affirm.
BACKGROUND
¶2 In November 2007, Johnson’s thirteen-year-old stepdaughter disclosed that Johnson sexually assaulted her on multiple occasions beginning when she was ten years old. The child reported that, during the period from December 2006 through mid-November 2007, Johnson engaged in at least 100 acts of mouth-to-vagina sexual intercourse with her. The State charged Johnson with one count of repeated sexual assault of the same child. Johnson pled guilty.
¶3 At the sentencing hearing, the circuit court considered a presentence investigation report prepared by an employee of the Department of Corrections. The circuit court also heard statements from the parties, the victim, and the victim’s father. The circuit court imposed a twelve-year term of imprisonment, bifurcated as eight years of initial confinement and four years of extended supervision.
¶4 Johnson moved for sentence modification, asking the circuit court “to eliminate or alternatively reduce the initial confinement.” The circuit court denied the motion without a hearing, and Johnson appeals.
DISCUSSION
¶5 We begin with Johnson’s three challenges to the accuracy of
the information considered at sentencing.
A defendant has a due process right to be sentenced upon the basis of
accurate information. State
v. Johnson, 158
¶6 Johnson first attacks the circuit court’s discussion of his probation for a prior offense. The court stated: “you would think at th[e] time [of the earlier probation] you would have gotten some of the help that you needed, but apparently it didn’t work out that way because you went out and committed this offense.” According to Johnson, the circuit court “misunderstood the nature and extent of [his] past treatment” because the presentence investigation report reflects that he successfully completed anger management counseling and parenting classes while on probation.
¶7 The circuit court may base a sentence on inferences
reasonably derived from the record. McCleary v. State, 49
¶8 Next, Johnson complains because the author of the presentence
investigation report remarked that Johnson shed “tears of self pity.” In Johnson’s view, this is a false statement
because he “explained to the court ... that he does not pity himself.” The agent’s impression regarding the cause of
Johnson’s tearfulness is not an objective fact but rather is a subjective
opinion that cannot be described as “accurate” or “inaccurate.” Cf.
State
v. Sanders, 196
¶9 Johnson also faults the circuit court for relying on information in the presentence investigation report that he fought for custody of his children. He shows no error because he acknowledged at sentencing that he pursued child custody. At the outset of the sentencing proceeding, his trial counsel stated:
[t]he next correction [to the presentence investigation report] involves page six the fourth paragraph, talking about the custody battle with his ex-wife. There’s language in there that a custody study was in his favor. It wasn’t. He wasn’t awarded custody by the court.... The study found in his favor but the judge overruled that.
Moreover, the presentence
investigator noted as one source of information: “autobiography of Christopher Johnson
requesting custody of children.” Johnson
did not dispute the existence of that autobiography, nor did he claim that the
presentence investigator inaccurately quoted his current wife’s remarks that
“his ex-wife had said everything imaginable about him during their custody
battle which spanned over 2.5 years.”
The circuit court may rely on facts in a presentence report that are not
disputed by the defendant. State
v. Spears, 227
¶10 We turn to whether the circuit court erroneously exercised its
sentencing discretion. Our standard of
review requires us to “start with the presumption that the circuit court acted
reasonably.” State v. Lechner, 217
¶11 The circuit court must consider the primary sentencing factors
of “the gravity of the offense, the character of the defendant, and the need to
protect the public.” State
v. Ziegler, 2006 WI App 49, ¶23, 289
¶12 The circuit court fully complied with its obligations here. The circuit court began by discussing the seriousness of the offense, reminding Johnson that he “caused a significant amount of pain that will last for a lifetime.” The circuit court also discussed Johnson’s dangerousness, pointing out that he was able to lead “a secret life” for a long time.
¶13 Johnson asserts, however, that the circuit court “did not
evaluate or consider” the third primary sentencing factor, the character of the
offender. We disagree. The circuit court viewed Johnson’s many
secret sexual assaults upon his stepdaughter as illustrative of his
character. The circuit court stated that
Johnson occupied a position of trust in relation to his stepdaughter and that
he “violated that trust.” The circuit
court described Johnson as “nurturing” his relationship with the child to enable
“intrusive conduct.” Additionally, the
circuit court considered his prior criminal convictions, noting that his record
“go[es] back a little while.” See State v. Fisher, 2005 WI App 175,
¶26, 285
¶14 Johnson complains that the circuit court did not give weight to
factors that he views as mitigating, including his cooperation and acceptance
of responsibility. Numerous factors are
potentially relevant at sentencing. See Gallion, 270
¶15 Here, the circuit court noted Johnson’s education, his military
service, and his employment. The court
viewed these factors as aggravating, however, because they suggested that
Johnson “should have ... known better” than to molest a child. The court has discretion to determine that
particular factors are mitigating or aggravating in light of the individual
defendant and the facts of the case. State
v. Thompson, 172
¶16 Johnson’s next contention is that the circuit court “penalized him for his mental health issues.” In support of this claim, Johnson points to the court’s concern that he “need[s] a significant amount of treatment.” In Johnson’s view, this remark warrants sentence modification because “[i]t is a violation of constitutional rights to punish one for being ill.”
¶17 Johnson is wrong in suggesting that a defendant with treatment
needs may not be imprisoned after conviction of a crime. The constitution imposes no bar to imposing a
prison sentence when the circuit court concludes that treatment would be
desirable.
¶18 Johnson next argues that the circuit court did not explain the reason for the length of the sentence or why the sentencing objectives required the term of confinement imposed. We are not persuaded.
¶19 The circuit court has no obligation to state exactly how the
factors it considered justify the specific number of years of imprisonment. Fisher, 285
¶20 In this case, the circuit court identified punishment and
protection of the public as the primary sentencing objectives. The circuit court considered whether probation
was appropriate, but rejected that option after noting both the victim’s need
for protection and the failure of previous community-based rehabilitative
efforts to prevent Johnson from committing new crimes. See
Gallion,
270
¶21 The circuit court fully
explained the basis for the sentence selected in this matter. Although Johnson contends that the circuit
court “could have imposed shorter confinement,” our inquiry is whether the
circuit court exercised discretion, not whether discretion could have been
exercised differently. See Hartung v. Hartung, 102
¶22 We
also reject Johnson’s contention that the sentence was unduly harsh. A sentence is unduly harsh when it
‘“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.’” State v. Grindemann, 2002 WI App
106, ¶31, 255
¶23 “In our society, sexual abuse of a child ranks among the most heinous
crimes a person can commit.” Johnson
v. Rogers Mem’l Hosp. Inc., 2005 WI 114, ¶80, 283
¶24 Johnson last asserts that the circuit court improperly denied his postconviction motion because he “identified several misuses of the court’s discretion entitling him to relief.” Because we conclude that the circuit court did not err when sentencing Johnson, we reject this contention.[2]
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] In
his reply brief, Johnson faults the State for “editorialing” [sic] and for
using “phrases and words ... that are argumentative and vituperative in
tone.” Johnson objects to the State’s
descriptions of his activity with his thirteen-year-old stepdaughter as
“grooming the victim” and as “sexual slavery,” and he is evidently offended by
the State’s reference to his “scathing criticism” of the presentence
investigation report He also complains
because the State describes his brief as “overly long” and as “distort[ing]”
sentencing law. He asks us to “take note
of counsel’s numerous statements because clearly they are intentional.” To the extent that Johnson suggests some
impropriety in the State’s arguments, the suggestion is rejected. Legal discourse is not disserved by
descriptive language, and a prosecutor is entitled to “strike hard blows.”