State v. Miller

• Decision Date: 12 July 2016
• Docket Number: No. 2015AP2074–CR.,2015AP2074–CR.
• Citation: 884 N.W.2d 535 (Table),371 Wis.2d 565
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Clayton M. MILLER, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

371 Wis.2d 565

884 N.W.2d 535 (Table)

STATE of Wisconsin, Plaintiff–Respondent,

v.Clayton M. MILLER, Defendant–Appellant.

No. 2015AP2074–CR.

Court of Appeals of Wisconsin.

July 12, 2016.

¶ 1 PER CURIAM.

Clayton Miller, pro se, appeals an order denying his motion for sentence modification. Miller argues: (1) the circuit court relied on inaccurate information when sentencing him; (2) fifteen new factors warrant sentence modification; (3) four conditions of his extended supervision are unconstitutional; (4) the circuit court erroneously exercised its sentencing discretion with respect to the conditions of extended supervision; and (5) the circuit court was obligated to grant his sentence modification motion because the State did not oppose it. We reject Miller's arguments and affirm.

BACKGROUND

¶ 2 In June 2012, the State charged Miller with five counts of possession of child pornography, contrary to Wis. Stat. § 948.12(1m)

; one count of exposing a child to a harmful description, contrary to Wis. Stat. § 948.11(2)(am) ; and one count of causing a child over the age of thirteen to view or listen to sexual activity, contrary to Wis. Stat. § 948.055.¹ The charges stemmed from online communications Miller had with a fourteen-year-old girl, in which she sent sexually explicit images and video of herself to Miller and the two of them discussed sexual matters. According to the criminal complaint, Miller and the victim met online through the website “My Yearbook.” The victim's profile stated she was nineteen years old. At some point, the victim told Miller she was only fourteen. Miller admitted to police that he retained the sexually explicit images of the victim even after he learned her actual age.

¶ 3 Miller pled no contest to two of the possession-of-child-pornography charges and the exposing-a-child-to-harmful-description charge. The remaining charges were dismissed and read in. The circuit court sentenced Miller to four years' initial confinement and seven years' extended supervision on each of the possession counts and one year of initial confinement and one year of extended supervision on the exposure count, all counts concurrent to each other and to a sentence Miller was then serving. The court imposed several conditions of extended supervision, including: (1) prohibiting Miller from consuming or possessing alcohol or illegal substances, and allowing him to take medication only as prescribed by a physician; (2) prohibiting unsupervised contact with persons under the age of eighteen without prior agent approval; (3) prohibiting computer or internet access without prior agent approval, including use of a cell phone with camera or internet capability; and (4) prohibiting Miller from possessing sexually explicit materials.

¶ 4 In July 2015, Miller moved for sentence modification. The circuit court denied his motion in a written decision, and Miller now appeals.

DISCUSSION

I. Inaccurate information

¶ 5 Miller first argues the circuit court relied on inaccurate information when sentencing him.² “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

. Whether a defendant has been denied this right is a question of law that we review independently. Id. To establish he is entitled to relief on this basis, Miller must prove both that there was inaccurate information before the court at sentencing and that the court actually relied on the inaccurate information when imposing sentence. See

id., ¶ 26.

¶ 6 Miller has failed to show that any information before the circuit court at sentencing was inaccurate. Miller first argues the court erroneously believed he knew the victim was fourteen when she sent him sexually explicit pictures of herself. During its sentencing remarks, the court noted Miller “was somebody who was in his 20s communicating with this 14–year–old girl, and he was able to entice her to send some naked photographs of herself.” This is an accurate statement of the facts alleged in the criminal complaint. The court did not state that Miller knew the victim was fourteen when he enticed her to send the pictures. Moreover, Miller concedes he maintained contact with the victim and retained the pictures she had sent even after he found out she was only fourteen.

¶ 7 Miller's next inaccurate-information argument is difficult to follow. In his postconviction motion, Miller argued his postsentencing diagnosis of “hypersexuality” was a new factor warranting sentence modification. He now contends that, in rejecting that argument, the circuit court inaccurately stated it was aware of his hypersexuality diagnosis at sentencing. He argues the court's “premising its discretion on the erroneous belief that it had discussed Miller's symptoms, including hypersexuality, and their role in the offense at sentencing constitutes an error of discretion.”

¶ 8 This argument fails for three reasons. First, Miller asserts he had not been diagnosed with hypersexuality at the time of sentencing. Thus, he cannot claim that the circuit court relied on inaccurate information at sentencing by failing to consider a hypersexuality diagnosis. Second, contrary to Miller's suggestion, the circuit court never referred to hypersexuality in its decision denying his postconviction motion. Rather, the court stated, “[Miller] indicates that he has bi-polar disorder and that evaluation at the prison since the sentencing has recognized this. However, this information and diagnosis was discussed and considered by the court in sentencing, so it's not a new factor.” Third, the record item Miller cites does not establish that he has hypersexuality or that hypersexuality played a role in his offenses. Miller cites a prison form, entitled “Psychological Service Request,” which he used to request “information on hypersexuality.” On the “Response” portion of the form, a staff member wrote, “[C]ertainly appreciate your interest in topics relating to your criminal offense[,] but you will need to seek this type of information from the library and or other sources.” This is a far cry from a diagnosis of hypersexuality or a formal determination that hypersexuality played a role in Miller's offenses.

¶ 9 Lastly, Miller argues the circuit court erroneously believed he would need two years of treatment in prison, when, in actuality, the treatment programming recommended by the Department of Corrections (DOC) takes only six to twelve months. At sentencing, the court explained its “reason” for sentencing Miller to four years' initial confinement, stating, “[k]nowing that he's got just over two years left in the prison system [on another sentence], this will give him, it being a concurrent sentence, a little bit more time in—in the prison system to avail himself of the treatment programming.” The court further stated, “He does have significant issues that he needs to deal with, and I don't think that it's realistic to assume that that's going to be completed in two years.”

¶ 10 Miller has not met his burden to show that the circuit court's belief his treatment would take at least two years was inaccurate. Miller cites two documents in support of his claim that he needs only six to twelve months of treatment. One of those documents, an inmate classification form, indicates Miller was on a waiting list for both Alcohol and Other Drug Abuse (AODA) treatment and “Sex Offender Treatment SO–2.” The second document—which appears to be a single page of an unidentified, longer document—describes SO–2 as “a short term treatment program, lasting six to 12 months.” However, Miller has not explained how long it will take him to complete any other treatment programs besides SO–2, including AODA treatment. Moreover, Miller does not provide any information about how long he will be on the waiting list for SO–2 or AODA treatment. On this record, we cannot conclude the circuit court's belief regarding the time needed for treatment was inaccurate.

II. New factors

¶ 11 Miller next argues fifteen new factors warrant sentence modification. A new factor is

a fact or set of facts 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.

State v. Harbor, 2011 WI 28, ¶ 40, 333 Wis.2d 53, 797 N.W.2d 828

(quoting Rosado v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69 (1975) ). The defendant bears the burden of demonstrating the existence of a new factor by clear and convincing evidence. State v. Ninham, 2011 WI 33, ¶ 89, 333 Wis.2d 335, 797 N.W.2d 451. Whether the defendant has met his or her burden to show the existence of a new factor is a question of law that we review independently. Harbor, 333 Wis.2d 53, ¶ 33, 797 N.W.2d 828.

¶ 12 “The existence of a new factor does not automatically entitle the defendant to sentence modification.” Id., ¶ 37. If the circuit court determines a new factor exists, it must then decide whether sentence modification is justified. Id. Whether to modify a sentence based on the existence of a new factor is committed to the circuit court's discretion. Id.

¶ 13 Miller's first claimed new factor is that he was “found to be disabled due to mental illness by the SSA [Social Security Administration] during the period of the offense.” In his postconviction motion, Miller asserted he was “found to meet the SSA's standard of disability as a result of ... suffering from Bipolar, PTSD, and Identity Disorder” on three dates: November 26, 2006, December 8, 2010, and August 4, 2012. However, Miller's sentencing occurred in June 2013. Accordingly, the SSA's disability finding is not a new factor because it was known to Miller at the time of sentencing, but he failed to bring it to the circuit court's attention. See id., ¶ 40 (new factor is fact or set of facts not known to sentencing...