State v. McGee

370 Wis.2d 787

882 N.W.2d 871 (Table)

STATE of Wisconsin, Plaintiff–Respondent,

v.Marcus Ricardo McGEE, Defendant–Appellant.

No. 2015AP1087–CR.

Court of Appeals of Wisconsin.

June 14, 2016.

¶ 1 PER CURIAM.

Marcus Ricardo McGee appeals from a judgment of conviction, entered upon his guilty plea, for one count of third-degree sexual assault. McGee also appeals from an order denying his postconviction motion for resentencing on various grounds. We reject McGee's arguments and affirm.

BACKGROUND

¶ 2 Nineteen-year-old McGee was charged with one count of second-degree sexual assault of a child based on allegations he had sexual intercourse with fourteen-year-old E.J.S. on three separate occasions. The intercourse came to light because E.J.S.'s twelve-year-old brother began cutting himself after McGee had sex with E.J.S. in her residence while her brother was at home.

¶ 3 McGee agreed to plead guilty to an amended charge of third-degree sexual assault. The State recommended two years of initial confinement and two years of extended supervision, imposed and stayed in favor of three years' probation, explaining that McGee had no prior record, drugs and alcohol were not involved, and McGee had been cooperative. The circuit court sentenced McGee to the maximum five years' initial confinement and five years' extended supervision.

¶ 4 McGee subsequently retained the services of clinical and forensic psychologist Melissa Westendorf. She performed a “professional risk assessment” of McGee and concluded that his risk of sexual re-offense was low. McGee then filed a postconviction motion for resentencing, based on five grounds: (1) Westendorf's assessment was a new factor; (2) the lack of a presentence investigation report (PSI) warranted resentencing; (3) the sentence had been based on inaccurate information; (4) the circuit court failed to consider probation; and (5) the sentence was unduly harsh when compared to similarly situated defendants. After briefing, the circuit court denied the postconviction motion without a hearing. McGee appeals, essentially renewing his five arguments.¹

DISCUSSION

I. Risk Assessment as New Factor

¶ 5 McGee first contends that Westendorf's risk assessment, “and the factors on which it is based, constitute a ‘new factor’ which the Court may reconsider the sentence.” The circuit court rejected this argument, noting that “the factual information contained within the current risk assessment report is not new to the court[.]”

¶ 6 A new factor is a fact or set of facts that is “highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.” Rosado v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69 (1975) ; and see State v. Harbor, 2011 WI 28, ¶¶ 40, 57, 333 Wis.2d 53, 797 N.W.2d 828. The defendant must demonstrate the existence of a new factor by clear and convincing evidence. See Harbor, 333 Wis.2d 53, ¶ 36, 797 N.W.2d 828. If the circuit court determines that a new factor exists, the circuit court determines, in its exercise of discretion, whether modification of the sentence is warranted. Id., ¶ 37.

¶ 7 McGee notes that Westendorf determined he was at low risk for sexual re-offense based on “the nature of the relationship and E.J.S.'s role in the illegal conduct.” Specifically, McGee and E.J .S. met through mutual friends at the same high school, their relationship “turned into a sexually intimate relationship at E.J.S .'s suggestion,”² and there “was no evidence of force or coercion, the conduct was by mutual assent, and E.J.S. was a willing participant.”

¶ 8 However, none of these factors were non-existent at the time of sentencing. See Rosado, 70 Wis.2d at 288, 234 N.W.2d 69. McGee does not establish that any of these factors were unknowingly overlooked; indeed, they were part of his sentencing argument. We therefore agree with the circuit court that the factors on which Westendorf relied are not new factors.

¶ 9 To the extent that Westendorf's determination of risk based on those factors might be said to fulfill the definition of a new factor, the circuit court determined that her “opinion about the type of risk the defendant presents based on his self-reporting to her does not cause the court to conclude that modification of his sentence is warranted.” We discern no erroneous exercise of discretion in this conclusion, see Harbor, 333 Wis.2d 53, ¶ 37, 797 N.W.2d 828, and McGee demonstrates none.

II. Failure to Order a PSI

¶ 10 McGee next faults the circuit court for not ordering a PSI. Instead, the parties went straight from plea to sentencing. McGee argues that there “was no affirmative waiver of a PSI” and complains that the court “did not specifically find that it had sufficient information to negate the production of a PSI.”

¶ 11 Production of a PSI is not required prior to sentencing, either by statute or the constitution. See Bruneau v. State, 77 Wis.2d 166, 174, 252 N.W.2d 347 (1977). Rather, the circuit court is vested with the discretion to order a PSI. See Wis. Stat. § 972.15(1) (2013–14)³ (“After a conviction the court may order a presentence investigation[.]” (Emphasis added.)). Thus, there is nothing for which the circuit court must obtain an “affirmative waiver.”⁴

¶ 12 Further, the PSI should contain information about the present offense, the defendant's prior criminal record, the defendant's prior institutional record, any statements by the victim, and the defendant's family information and personal history. See State v. Melton, 2013 WI 65, ¶ 28, 349 Wis.2d 48, 834 N.W.2d 345. McGee does not establish what information the PSI could have provided on those factors that the circuit court did not already have at the time of sentencing.⁵

III. “Accurate Information ”

¶ 13 McGee captions his next argument as one of “accurate information,” but he actually attacks the sentence imposed on two different points. First, he complains that the circuit court erroneously exercised its discretion by overemphasizing certain factors. Second, he complains about being sentenced on inaccurate information.

A. Weight of Factors

¶ 14 Sentencing is committed to the circuit court's discretion. See State v. Gallion, 2004 WI 42, ¶ 17, 270 Wis.2d 535, 678 N.W.2d 197. In its exercise of discretion, the circuit court should consider the three principle sentencing objectives of protecting the community, punishment and rehabilitation of the defendant, and deterrence to others. See State v. Ziegler, 2006 WI App 49, ¶ 23, 289 Wis.2d 594, 712 N.W.2d 76. There are several factors that should, and several subfactors that may, be considered in fulfilling the sentencing objectives. See State v. Odom, 2006 WI App 145, ¶ 7, 294 Wis.2d 844, 720 N.W.2d 695. “[T]he weight that is attached to any particular factor in sentencing is within the wide discretion of the sentencing court.” State v. Perez, 170 Wis.2d 130, 143, 487 N.W.2d 630 (Ct.App.1992). However, there may be an erroneous exercise of discretion if there is “too much weight given to one factor on the face of other contravening considerations.” Ocanas v. State, 70 Wis.2d 179, 187, 233 N.W.2d 457 (1975).

¶ 15 McGee complains that the circuit court, in determining that a probation sentence was not appropriate, “appears to emphasize [his] failure on JusticePoint without considering why he failed to meet his appointments.” McGee further complains that the circuit court's reference to a need for punishment “deemphasizes the fact that this was a peer relationship” and “relies heavily on its assessment that his victim was innocent” but the victim “was more than a willing participant, who initiated the sexual activity[.]”

¶ 16 We are not persuaded that the circuit court improperly weighed any factors in its exercise of sentencing discretion. See Perez, 170 Wis.2d at 143, 487 N.W.2d 630. McGee does not develop an argument on appeal to explain why he failed on JusticePoint supervision or why the circuit court should have considered that a mitigating factor. In addition, while McGee may view it as a “peer relationship” in which E.J.S. willingly participated, we note that children lack the legal capacity to consent to sexual intercourse. See State v. Taylor, 2006 WI 22, ¶ 41, 289 Wis.2d 34, 710 N.W.2d 466. The circuit court's sentencing decision, viewed as a whole, reflects the consideration of no improperly weighed factors.

B. Accurate Information

¶ 17 “[A] criminal defendant has a due process right to be sentenced only upon materially accurate information.” State v. Lechner, 217 Wis.2d 392, 419, 576 N.W.2d 912 (1998). A defendant who seeks resentencing based on the circuit court's use of inaccurate information must show that the information was inaccurate and that the circuit court actually relied on the inaccuracy in the sentencing. See State v. Tiepelman, 2006 WI 66, ¶ 26, 291 Wis.2d 179, 717 N.W.2d 1. “Whether the court ‘actually relied’ on the incorrect information at sentencing [is] based upon whether the court gave ‘explicit attention’ or ‘specific consideration’ to it, or that the misinformation ‘formed part of the basis for the sentence.’ ” Id., ¶ 14 (quoting Welch v. Lane, 738 F.2d 863, 866 (7th Cir.1984) ).

¶ 18 McGee complains that he was sentenced based on statements from E.J.S.'s mother that he had advised E.J.S. to keep quiet and was “somehow directly or indirectly responsible for E.J.S. being bullied, harassed, and intimidated at school via social media.”⁶ McGee notes that in imposing sentence, the circuit court “felt it needed to send a message to ‘those other young men in the community who think this is appropriate conduct and it is just the girl's problem.’ “ He complains that the circuit court “appears to intimate that Mr. McGee is part of a larger community of predators, who blame E.J.S. for what happened to them.” McGee contends that “[t]his reasoning is unfounded” because,...