from a judgment of the circuit court for Kenosha County: Cir.
Ct. No. 2014CF526 BRUCE E. SCHROEDER, Judge.
Reilly, P.J., Gundrum and Hagedorn, JJ.
This case requires us to interpret Wis.Stat. § 939.617
(2013-14),  which prescribes minimum sentences for
certain child sex offenses. Specifically, the main question
before us is whether and when a circuit court may impose less
than three years' initial confinement for possession of
child pornography. We hold that § 939.617(2) authorizes
a circuit court to depart from the minimum and impose either
probation or initial confinement of less than three years
only if the defendant is not more than forty-eight months
older than the child-victim.
In 2014, Markus Holcomb was charged with thirty counts of
possession of child pornography contrary to Wis.Stat. §
948.12. As the result of a plea agreement, Holcomb pled
guilty to only five counts and the remaining twenty-five
counts were dismissed and read-in at sentencing.
Holcomb argued at sentencing that the circuit court had
discretion to decline to impose the three-year minimum
generally applicable under Wis.Stat. § 939.617. The
circuit court, however, concluded that it was bound to follow
the minimum sentence requirements because Holcomb did not
meet the eligibility requirements for a lesser sentence under
§ 939.617(2). The court then sentenced Holcomb to six
years' initial confinement and ten years' extended
supervision on two counts with both sentences to be served
consecutively. Despite its conclusion that the three-year
minimum initial confinement applied, the court nonetheless
withheld sentencing on the remaining three counts and imposed
probation. Holcomb appeals from this judgment.
This case concerns the proper interpretation of Wis.Stat.
§ 939.617. The meaning of a statute is a question of law
we review de novo. Kelly v. Brown, 2016 WI.App. 31,
¶8, 368 Wis.2d 353, 879 N.W.2d 127.
Wisconsin Stat. § 939.617 provides minimum sentences for
certain child sex offenses, including Holcomb's
convictions under Wis.Stat. § 948.12 for possession of
child pornography. Section 939.617(1) provides that for such
crimes, "[t]he term of confinement in prison portion of
the bifurcated sentence shall be at least … 3
years" unless specific exceptions are met. Id.
Those exceptions are outlined in subsecs. (2) and (3).
Subsection (3), which is not at issue here, indicates that
the minimum "does not apply if the offender was under 18
years of age when the violation occurred." The dispute
here centers on the proper interpretation of subsec. (2).
Wisconsin Stat. § 939.617(2) provides in relevant part
(2) If the court finds that the best
interests of the community will be served and the public will
not be harmed and if the court places its reasons on the
record, the court may impose a sentence that is less than the
sentence required under sub. (1) or may place the
person on probation under any of the following circumstances:
(b) If the person is convicted of a violation of [Wis. Stat.
§] 948.12 [possessing child pornography], the person is
no more than 48 months older than the child who ...