COURT OF APPEALS DECISION DATED AND FILED November 8, 2011 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. |
Cir. Ct. No. 2008CF3487 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Cory McLean, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Milwaukee County: REBECCA F. DALLET, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Cory McLean appeals from a judgment of conviction and an order denying
postconviction relief. He challenges the
circuit court’s decision to impose an eight-year term of imprisonment upon his
conviction for using a computer to facilitate a child sex crime. Because we conclude that the circuit court
neither erroneously exercised its sentencing discretion nor relied on
inaccurate information at sentencing, we affirm.
BACKGROUND
¶2 During June and July of 2008, McLean
participated in three online conversations with a police detective who was
posing as a fifteen-year old girl named Maria.
Although the detective told McLean several times that she was fifteen
years old, McLean said that he would like to have mouth-to-vagina sexual
contact with her, he sent her a video recording that showed McLean
masturbating, and he arranged to meet her at a mall to have sexual contact with
her. When McLean arrived at the mall,
police arrested him.
¶3 McLean
pled guilty to one count of using a computer to facilitate a child sex crime
pursuant to Wis. Stat. § 948.075(1r)
(2007-08).[1] A second charge of attempting to cause a
child to view or listen to sexual activity was dismissed and read in for
sentencing purposes. At sentencing,
McLean requested probation, telling the circuit court during his personal
allocution: “that behavior just isn’t
me. It doesn’t fit me
characteristically.” He noted that the
author of the presentence investigation report believed that he could be safely
supervised in the community. He also
relied on a psychosexual evaluation prepared at his request by a psychologist,
Dr. Melissa Westendorf. In her report,
Dr. Westendorf discussed McLean’s scores on several actuarial tests that she
administered to assess his risk of sexually reoffending. Dr. Westendorf characterized those scores as
“low” and “low-moderate.” Additionally,
she discussed McLean’s acknowledgment that he had used internet chat rooms on
approximately eight occasions to arrange or to try to arrange meetings with
young women for sexual purposes. Noting
McLean’s belief that all of these young women “were over eighteen years old,”
Dr. Westendorf concluded that McLean presented a low risk to reoffend.
¶4 The
circuit court, however, rejected McLean’s plea for probation, emphasizing the
aggravated nature of McLean’s conduct.
The circuit court also observed that “[t]his was not a one-time computer
type situation.... [T]here was a pattern
of behavior going on here.” The circuit
court therefore imposed an eight-year term of imprisonment, bifurcated as five
years of initial confinement and three years of extended supervision.
¶5 McLean
challenged the sentence in postconviction proceedings, arguing that the circuit
court erroneously exercised its discretion and relied on inaccurate
information. His challenges failed, and
this appeal followed.
DISCUSSION
¶6 “When
reviewing a sentence imposed by the circuit court, we start with the
presumption that the circuit court acted reasonably. We will not interfere with the circuit court’s
sentencing decision unless the circuit court erroneously exercised its
discretion.” State v. Lechner,
217 Wis. 2d 392, 418-19, 576 N.W.2d 912 (1998) (citation omitted). A proper exercise of sentencing discretion
includes “specify[ing] 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.” State v. Gallion, 2004 WI 42, ¶40, 270
Wis. 2d 535, 678 N.W.2d 197. Further,
the circuit court “must consider three primary sentencing factors in
determining an appropriate sentence: the
gravity of the offense, the character of the defendant, and the need to protect
the public.” State v. Harris, 2010 WI 79,
¶28, 326 Wis. 2d 685, 786 N.W.2d 409.
The circuit court may also consider additional factors, including:
(1) [p]ast record of criminal offenses; (2) history of
undesirable behavior pattern; (3) the defendant’s personality, character and
social traits; (4) result of presentence investigation; (5) vicious or
aggravated nature of the crime; (6) degree of the defendant’s culpability;
(7) defendant’s demeanor at trial; (8) defendant’s age, educational background
and employment record;
(9) defendant’s remorse, repentance and cooperativeness; (10) defendant’s need
for close rehabilitative control;
(11) the rights of the public; and (12) the length of pretrial detention.
Id. (citation
and quotation marks omitted). The
circuit court has discretion to determine both the factors that it believes are
relevant in imposing sentence and the weight to assign to each relevant
factor. State v. Stenzel, 2004 WI
App 181, ¶16, 276 Wis. 2d 224, 688 N.W.2d 20.
¶7 When
a defendant challenges a sentence, the postconviction proceedings afford the
circuit court an additional opportunity to explain the sentencing
rationale. See State v.
Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct. App. 1994). On appeal, a reviewing court will search the
record for reasons to sustain a circuit court’s exercise of sentencing
discretion. McCleary v. State, 49 Wis. 2d
263, 282, 182 N.W.2d 512 (1971).
¶8 In
this case, McLean pled guilty to a violation of Wis.
Stat. § 948.075(1r), and therefore he faced a presumptive minimum
sentence of five years in initial confinement.
See Wis. Stat. § 939.617(1). When a defendant is convicted of an offense
under Wis. Stat. § 948.075, the
sentencing court has discretion to impose less than five years of initial confinement
“only if the court finds that the best interests of the community will be
served and the public will not be harmed.” See
§ 939.617(2). Here, the circuit
court concluded that it could not make those findings.
¶9 McLean
asserts that the circuit court erred by overemphasizing negative factors and by
giving insufficient weight to his good character and to the opinions of Dr.
Westendorf and the author of the presentence investigation report. Decisions about the relative weight to assign
to the applicable sentencing factors, however, lie in the circuit court’s broad
discretion. See State v. Iglesias, 185 Wis. 2d 117, 128, 517 N.W.2d 175
(1994).
¶10 The
circuit court in this case placed the greatest weight on the gravity of the
offense. The circuit court observed that
“this isn’t just one chat ... it’s not spur of the moment.” The circuit court identified numerous
aggravating factors, including the seventeen-year age difference between McLean
and “Maria,” McLean’s knowledge that “Maria” was fifteen years old, the
extended period of time over which McLean interacted with “Maria,” the
agreement McLean made to meet with “Maria,” his arrangement to have oral sex
during that meeting, and his actions in driving to the meeting place. The circuit court also took into account
McLean’s related conduct charged in the count that was dismissed and read in,
namely, sending a video recording to “Maria” that showed him masturbating to
the point of ejaculation. See State v. Straszkowski, 2008 WI 65,
¶93, 310 Wis. 2d 259, 750 N.W.2d 835 (circuit court may consider read-in charge
at sentencing).
¶11 The
circuit court acknowledged the mitigating factors in the case, noting that
“there are good qualities in McLean’s character,” and the circuit court
highlighted his work history, supportive family, and absence of any prior criminal
record. The circuit court concluded,
however, that these factors did not outweigh the need to punish McLean, to
protect the public from the dangers posed by his conduct, and to deter McLean
and others from engaging in the same behavior in the future. The circuit court was not required to balance
the factors in the way that McLean had hoped. See Stenzel,
276 Wis. 2d 224, ¶16.
¶12 McLean
also alleges that the circuit court erroneously exercised its discretion by
failing to consider the presentence investigation report and the report
prepared by Dr. Westendorf. A circuit
court is not required to consider either presentence investigation reports or
reports from defense experts. See Harris, 326 Wis. 2d 685, ¶28. Nonetheless, the circuit court assured McLean
in the postconviction order that the sentence followed the court’s
consideration of the two reports. Further,
the circuit court explained that Dr. Westendorf’s report “led directly to the
court’s comments about [McLean’s] ‘pattern of behavior.’”
¶13 McLean
next complains that the circuit court “did not attempt to refute the opinions
or conclusions” of the author of the presentence investigation report, and he
objects that the circuit court did not offer any “articulated interpretation of
the accuracy, inaccuracy, or relevance” of Dr. Westendorf’s evaluation. These complaints do not describe any
error. A circuit court has no obligation
to explain why its sentence deviates from the recommendations of defense
experts or parole agents. See State v. Hamm, 146 Wis. 2d 130,
156, 430 N.W.2d 584 (Ct. App. 1988). Rather, the court must independently exercise its
sentencing discretion. See State v. Trigueros, 2005 WI App 112,
¶9, 282 Wis. 2d 445, 701 N.W.2d 54.
¶14 Last, McLean complains that the circuit court
considered inaccurate information when imposing sentence. He alleges that the circuit court based the
sentence on an erroneous conclusion that he repeatedly “engag[ed] in sexual
liaisons with minors, after meeting them in internet chat rooms.”
¶15 “A
defendant has a constitutionally protected due process right to be sentenced
upon accurate information.” State
v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. To earn resentencing based on a violation of
this right, a defendant has the burden to show both that the information was
inaccurate and that the circuit court actually relied on the information in
making its sentencing decision. Id.,
¶26. On appeal, our review is de novo.
Id., ¶9.
¶16 In
support of the claim that the circuit court relied on inaccurate information
here, McLean points to a portion of the circuit court’s sentencing remarks:
[t]his was not a one-time computer type situation. The other individuals that Mr. McLean did meet with he believed were in their 20s. I guess we won’t know what they were, but I have no knowledge of other underage girls. But clearly there was a pattern of behavior going on here at the time as well[,] of being in these chat rooms and then meeting up with these individuals, the criminal conduct here obviously being the age of the individuals that he was going to meet.
¶17 According
to McLean, these remarks “reflected the [circuit] court’s belief that [] McLean
is a repeat offender and that the charged offense was simply one act in a
continuum of child sexual offenses.” We disagree. The remarks reflect that the circuit court
took into account McLean’s admissions to
Dr. Westendorf, including his acknowledgments that he previously engaged in online
conversations with people and arranged to meet some of those people for sexual
encounters. The circuit court expressly
recognized the absence of any information that the people involved were “underage
girls” but, as the circuit court explained in its postconviction order, McLean’s
conduct constituted a pattern of risky behavior that “led to [McLean’s] attempt
to meet up with the 15-year-old in this case.”
¶18 Moreover,
McLean himself recognized that his past history of seeking out strangers for
sexual encounters created uncertainty about the lawfulness of his prior sexual
conduct. Dr. Westendorf reported to the
circuit court: “although [McLean]
believed all of these individuals to be over 18 years old, he acknowledged that
he is not absolutely sure they were because individuals alter their
information.” McLean fails to
demonstrate that the circuit court relied on inaccurate information here.
¶19 In
sum, McLean shows no error in the sentencing proceedings. He shows only that the circuit court considered
the information presented and then exercised discretion differently than he
would have preferred. That showing earns
him no relief. See Hartung v. Hartung, 102 Wis. 2d
58, 66, 306 N.W.2d 16 (1981) (Our inquiry is whether discretion was exercised,
not whether it could have been exercised differently.).
By
the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).