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State v. Heidke

Court of Appeals of Wisconsin, District I

June 28, 2016

State of Wisconsin, Plaintiff-Respondent,
James D. Heidke, Defendant-Appellant.

         Appeal from a judgment of the circuit court No. 2013CF1027, for Milwaukee County DAVID L. BOROWSKI, Judge.

          Before Curley, P.J., Kessler and Brennan, JJ.

          CURLEY, P.J.

         ¶1 James D. Heidke appeals the order emanating out of his conviction for violating Wis.Stat. § 948.075(1r) entered upon his guilty plea. The issue on appeal relates to the order denying his motion to dismiss the penalty enhancer found in Wis. Stat . § 939.617(1) (2013-14) [1]and denying his request to declare § 939.617(1) unconstitutional, which the trial court entered prior to Heidke's plea. The aforementioned penalty enhancer set a mandatory minimum sentence of five years for his conviction of using a computer to facilitate a child sex crime contrary to Wis.Stat. § 948.075(1r). Heidke argues that the penalty enhancer has no rational basis to a crime of computer facilitation because by contrast, a person convicted of the completed act of sexual assault with a child found in Wis.Stat. § 948.02 does not face a mandatory sentence of any kind. He also contends the penalty enhancer is unconstitutional as applied to him. We are satisfied that the legislature had reasonable and practical grounds for making the conviction for using a computer to facilitate a child sex crime subject to a mandatory minimum sentence. Thus, there was a rational basis for the penalty enhancer. The fact that a conviction for sexual assault of a child (§ 948.02), which has different elements than § 948.075(1r), has no mandatory sentence does not render the penalty enhancer irrational. In addition, we find his argument that the statute is unconstitutional as applied to him unavailing. Consequently, the penalty enhancer was properly applied, and § 939.617(1) is constitutional. We affirm.


         ¶2 According to the complaint, on February 21, 2013, a Milwaukee police detective was working on the internet in an undercover capacity. He was purporting to be a fifteen-year-old boy named Patrick. The detective discovered an online posting, the heading of which read: "Older for younger for some fun -m4m - 48 (Milwaukee)." The posting read: "Near the east side, looking to play, I can host. Int [sic] anything mild to wild. Be young, hung and fun. Reply with age, race and stats, and tell me what your [sic] up for." Concerned that a minor would reply to such a post, the detective responded to the post writing: "hey sup sup…I'm Patrick[.] Just seeing what going on…saw your post and like it im [sic] 15 511155 blue n black." The original reply to this post from "Jim" was that "Patrick" was too young. However, "Jim" then asked if "Patrick" had any pictures of himself. The detective then sent him a picture of a boy around the age of fifteen, and the conversation developed over the course of several days to the point where "Jim" invited "Patrick" over to his home to masturbate. "Jim" did inquire whether "Patrick" was a police officer. Several days, and many text messages later, photos of nude men were sent to "Patrick" from "Jim."

         ¶3 Ultimately, "Jim" agreed to pick up "Patrick" at a CVS store. "Jim" told "Patrick" he was driving a black Jetta. "Jim" emailed "Patrick" to tell him he was leaving his house to come pick him up. When Heidke entered the parking lot of the store, he was arrested. Found in Heidke's car was an oral sex Lick-Suck-Blow-Kiss dice game, seventy-one packages of Viagra, and twenty-five tablets of a different erectile dysfunction medication. His home was also searched and the police discovered a room containing a harness and numerous contraptions to facilitate multiple sexual encounters. In the room, the police found a large box of condoms, dildos, a sex face mask, a leather paddle, a leather neck collar, a dog leash, restraints, and pornographic DVDs.

         ¶4 Several months after Heidke was charged with one count of use of a computer to facilitate a child sex crime, he filed a pre-trial motion asking the trial court to dismiss the penalty enhancer found in Wis.Stat. § 939.617(1) and to find this statute unconstitutional as it was irrational. Briefs were filed by the defense and the State. After the briefing was concluded, the trial court heard argument on the motion. Ultimately, the trial court denied the motion, finding that the defense had not met its burden to show beyond a reasonable doubt that the statute in question was unconstitutional. Heidke then waived his right to a jury trial. Later, he pled guilty. Prior to sentencing, Heidke filed a brief urging the court to permit Heidke to escape the prescribed mandatory minimum sentence of five years' confinement. The State opposed this request. The trial court sentenced Heidke to the minimum sentence of five years incarceration and two years on extended supervision. This appeal follows.


         ¶5 The constitutionality of a statute is a question of law that this court reviews de novo. State v. Cole, 2003 WI 112, ¶10, 264 Wis.2d 520, 665 N.W.2d 328. A statute enjoys a presumption of constitutionality. See State v. Janssen, 219 Wis.2d 362, 370, 580 N.W.2d 260 (1998). To overcome that presumption, a party challenging a statute's constitutionality bears a heavy burden. Cole, 264 Wis.2d 520, ¶11. It is insufficient for the party challenging the statute to merely establish either that the statute's constitutionality is doubtful or that the statute is probably unconstitutional. Id. Instead, the party challenging a statute's constitutionality must "prove that the statute is unconstitutional beyond a reasonable doubt." Id.

         ¶6 The right to equal protection under the law is guaranteed by the Fourteenth Amendment to the United States Constitution and article I, section 1 of the Wisconsin Constitution. See U.S. Const. amend XIV; Wis. Const. art. I, § 1. When a statute is challenged on equal protection grounds, the question is whether a rational basis exists for the classification, unless the statute impinges on a fundamental right or disadvantages a suspect class. State v. Smith, 2010 WI 16, ¶12, 323 Wis.2d 377, 780 N.W. 2d 90. The equal protection clause "is designed to assure that those who are similarly situated will be treated similarly." Treiber v. Knoll, 135 Wis.2d 58, 68, 398 N.W.2d 756 (1987). "The equal protection clause requires that the legislature have reasonable and practical grounds for the classifications that it draws, " and when determining if there is a rational basis, we must presume that the legislative action is valid. See State v. Quintana, 2008 WI 33, ¶¶76, 79, 308 Wis.2d 615, 748 N.W. 2d 447. Under this "rational basis" test, equal protection is violated if there is no plausible policy reason for the classification or the classification is arbitrary in relation to the legislative goal. See State v. Lynch, 2006 WI.App. 231, ¶13, 297 Wis.2d 51, 724 N.W.2d 656. When a statutory scheme creates an arbitrary or irrational penalty structure, it denies citizens their right to equal protection under the law and should be struck down. See State v. Asfoor, 75 Wis.2d 411, 440-41, 249 N.W.2d 529 (1977).

         ¶7 For his first claim, Heidke relies principally on Asfoor for his argument that the mandatory minimum penalty enhancer applied here is irrational. The facts in Asfoor are that Asfoor was convicted by a jury of two offenses: (1) as party of the crime of injury by negligent use of a weapon contrary to Wis.Stat. §§ 940.24(1) (1973-74) and 939.05 (1973-74); and (2) carrying a concealed weapon contrary to Wis.Stat. 941.23(1) (1973-74). Asfoor, 75 Wis.2d at 423.

         ¶8 Among his many arguments, Asfoor contended that a conviction under Wis.Stat. § 940.24(1) (1973-74) "violate[d] the equal protection clause of the Fourteenth Amendment and the Eighth Amendment in that a conviction of injury by negligent use of a weapon is a felony while conviction of homicide by negligent use of a weapon, sec. 940.08, [1973-74], is a misdemeanor." Asfoor, 75 Wis.2d at 437. Thus, he argued that these statutes violated the equal protection of the laws because the only differences between these two statutes are that § 940.08(1) (1973-74) deals with homicide, whereas the other statute deals with injury. Asfoor, 75 Wis.2d at 439-40. This set up a situation where one who caused the death of another human being by a high degree of negligence in the operation or handling of a firearm committed a misdemeanor, while someone who simply caused bodily harm in the same manner committed a felony. Id. at 440.

         ¶9 In resolving the issue, our supreme court in Asfoor stated that: "We are unable to conceive of any reason to support the statutory discrimination of the legislature.… The irrationality of this classification results from the felony being imposed for causing injury and the misdemeanor for causing death." Id. The supreme court declared that only the penalty provision of Wis.Stat. § 940.24(1) (1973-74) was unconstitutional in that it denied equal protection of the law. Asfoor, 75 Wis.2d at 441. The court explained that the penalty provision was severable. Id.

         ¶10 This is not an Asfoor situation. In Asfoor, the elements of the crime were identical except that the result of the criminal acts differ, making the result of bodily harm a felony, whereas the result of death was only a misdemeanor. ...

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