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State v. Holcomb

Court of Appeals of Wisconsin

August 3, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Markus S. Holcomb, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Kenosha County: Cir. Ct. No. 2014CF526 BRUCE E. SCHROEDER, Judge.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          HAGEDORN, J.

         ¶1 This case requires us to interpret Wis.Stat. § 939.617 (2013-14), [1] 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.

         Background

         ¶2 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.

         ¶3 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.

         Discussion

         ¶4 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.

         ¶5 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).

         ¶6 Wisconsin Stat. § 939.617(2) provides in relevant part as follows:

(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. ยง] 948.12 [possessing child pornography], the person is no more than 48 months older than the child who ...

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