State v. J.E.B.
| Decision Date | 06 March 1991 |
| Docket Number | No. 90-0963-CR,90-0963-CR |
| Citation | 469 N.W.2d 192,161 Wis.2d 655 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. J.E.B., Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Donald J. Hanaway, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., for plaintiff-respondent.
Before NETTESHEIM, P.J., and SCOTT and ANDERSON, JJ.
J.E.B. 1 appeals from the sentencing provisions of two judgments of conviction for first-degree sexual assault and from an order denying his motion for resentencing. On appeal, J.E.B. contends his sentences are invalid because the trial court improperly considered his use of reading materials protected under the First Amendment to the United States Constitution. J.E.B. also argues his sentence is invalid because the trial court engaged in "mechanistic" sentencing. We conclude that the trial court did not abuse its discretion by factoring J.E.B.'s reading habits into its sentencing decision. We further hold that apart from any first amendment considerations, J.E.B.'s sentence was based on relevant and sufficiently individualized factors.
The facts are not in dispute. On April 24, 1989, J.E.B. pled no contest to two counts of first-degree sexual assault contrary to sec. 940.225(1)(d), Stats. (1985-86). 2 The convictions resulted from J.E.B.'s illegal sexual contact with his juvenile daughter. The prosecution agreed to recommend sentences stayed in favor of probation on both counts. The presentence investigation report (PSI), on the other hand, called for a prison term. The trial court sentenced J.E.B. to thirty months' imprisonment on the first count and four years' imprisonment on the second count. The sentence on the latter count was stayed in favor of five years' probation to run consecutively with the sentence on the first count.
J.E.B.'s taste in reading material was a prominent feature of the PSI. The PSI author noted that J.E.B. had an interest in "pornography, especially the novels containing graphic descriptions of adults having sexual contact with children." Titles of and excerpts from some books J.E.B. owned and kept at his home appear in the PSI, but the books themselves were never made part of the record. Nor did the trial court inspect the books. J.E.B.'s wife is quoted in the PSI as observing that her husband had consumed similar reading materials for years, that he kept the books under his bed, that he read the books in the bedroom, and that she believed he masturbated while reading the books. The PSI author concluded that the books J.E.B. read played a role in causing the "preverse [sic] adult sexual behavior he has engaged in with his daughter." Moreover, the PSI author concluded that J.E.B.'s choice of reading material "fueled" his "salacious interest in his daughter."
At the sentencing hearing, the trial court spoke to the information contained in the PSI. In particular, the court said that it "[c]ertainly d[idn't] like to read about the types of pornography that's kept at the house." Later in the proceedings, the court again referred to J.E.B.'s reading habits, stating:
J.E.B.'s attorney moved for resentencing pursuant to Rule 809.30, Stats., arguing that the sentence was improperly based upon J.E.B.'s use of materials protected under the First Amendment to the United States Constitution. J.E.B. did not, and does not on appeal, assert a violation of rights guaranteed under the Wisconsin Constitution. Nor does J.E.B. argue that his sentence was in itself excessive or perverse. Rather, J.E.B. contends that the trial court's consideration of his constitutionally protected reading habits resulted in a harsher sentence than he otherwise would have received.
The trial court issued a written decision denying J.E.B.'s resentencing motion, explaining:
The Court did refer to pornography at the sentencing hearing and stated further that the keeping of this material goes to character. Character is one of the factors that the Court uses when it hands down a sentence. Certainly the Court questioned the Defendant's character when the Court learned of the many sexually explicit magazines the Defendant had in his possession on or about the dates of these incidents. But character is just one factor the Court examines. The other important factor the Court considered was the fact that these two counts involved first-degree sexual assaults.... It is this factor that weighed considerably in the Court sentencing the Defendant to thirty months in prison.
We make two initial observations before we address J.E.B.'s issues. First, the trial court's decision references magazines whereas the PSI indicates that J.E.B. possessed books. There is no indication on the record that the books contained pictures. Second, the text of the trial court's decision indicates that while J.E.B.'s choice of reading material was not the major factor influencing
the sentence, it was nevertheless a relevant factor.
Ordinarily, sentencing is left to the discretion of the trial court and appellate review is limited to determining whether there was an abuse of that discretion. State v. Roubik, 137 Wis.2d 301, 310, 404 N.W.2d 105, 108 (Ct.App.1987). Our review is thus conducted in light of a strong public policy against interference with the trial court's sentencing decision. Id. In reviewing a sentence to determine whether discretion has been abused, we will begin with the presumption that the trial court acted reasonably, and the defendant must show some unreasonable or unjustifiable basis in the record for the sentence complained of. Elias v. State, 93 Wis.2d 278, 281-82, 286 N.W.2d 559, 560 (1980). Unjustifiable bases for a sentence include irrelevant or improper considerations. See id. at 282, 286 N.W.2d at 561.
The trial court has great latitude in passing sentence. State v. Jackson, 110 Wis.2d 548, 552, 329 N.W.2d 182, 185 (1983). Such discretion is not to be exercised, however, in the absence of reference to established considerations. Specifically, the trial court considers three primary factors: the gravity of the offense, the character of the offender and the need to protect the public. Elias, 93 Wis.2d at 284, 286 N.W.2d at 561. The weight to be given each factor is a determination particularly within the wide discretion of the sentencing judge. Anderson v. State, 76 Wis.2d 361, 364, 251 N.W.2d 768, 770 (1977). Other factors have been recognized as proper sentencing considerations, viz:
A past record of criminal offenses; a history of undesirable behavior patterns; the defendant's personality, character and social traits; the results of a presentence investigation; the vicious or aggravated nature of the crime; the degree of the defendant's culpability; the defendant's demeanor at trial; the defendant's age, educational background and employment record; the defendant's remorse, repentance and cooperativeness; the defendant's need for close rehabilitative control ... the rights of the public.... [and] the length of pretrial detention.
State v. Tew, 54 Wis.2d 361, 367-68, 195 N.W.2d 615, 619 (1972), overruled on other grounds, Byrd v. State, 65 Wis.2d 415, 425, 222 N.W.2d 696, 702 (1974) (citations omitted). The Wisconsin Supreme Court has explained the policy concerns which require consideration of such factors in the sentencing decision:
It is not the philosophy of modern criminal law that the punishment fit the crime alone and that for every violation of a particular statute there be an identical sanction. In light of the function of the law to deter similar acts by the defendant and others and to rehabilitate the individual defendant, it is essential that a sentencing court consider the nature of the particular crime, i.e., the degree of culpability--distinguishable from the bare-bones legal elements of it--and the personality of the criminal. The interests of both society and the individual must be weighed in each sentencing process.
McCleary v. State, 49 Wis.2d 263, 271, 182 N.W.2d 512, 517 (1971). The United States Circuit Court of Appeals, Tenth Circuit, puts it more succinctly: "[T]he sentencing judge is entitled to all the help he [or she] can get." United States v. Majors, 490 F.2d 1321, 1322 (10th Cir.1974), cert. denied, 420 U.S. 932, 95 S.Ct. 1136, 43 L.Ed.2d 405 (1975).
Despite this need for all relevant information concerning an offender facing sentencing, the trial court's sentencing discretion is also subject to limitations. Under both federal and Wisconsin law, a sentence may not be based on constitutionally invalid grounds. See, e.g., United States v. Bangert, 645 F.2d 1297, 1307-09 (8th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 314, 70 L.Ed.2d 158 (1981); Hanneman v. State, 50 Wis.2d 689, 691, 184 N.W.2d 896, 897 (1971). See also Fed.R.Crim.P. 32.
We begin our analysis with two important observations. First, the reading Thus we begin our analysis with the presumption that the materials are constitutionally protected and that the trial court and PSI used the term pornography not as a term of art, but rather as a generic expression indicating the sexually explicit nature of the books. As a result, the appellate question becomes whether the trial court's consideration of J.E.B.'s reading habits violated the first amendment and invalidates the sentence.
materials at issue in this case are constitutionally protected. The books were never made part of the record. The question of their obscenity has never been judicially determined under the Roth- Miller analysis. See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), [161 Wis.2d 664] and Miller v. California, 413 U.S. 15, 93...To continue reading
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