from a judgment of the circuit court No. 2013CF1027, for
Milwaukee County DAVID L. BOROWSKI, Judge.
Curley, P.J., Kessler and Brennan, JJ.
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) 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.
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."
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
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
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."
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).
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.
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.
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.
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