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Court of appeals instructs defense on grammar and punctuation, proper interpretation of 939.617 depends on it

State v. Markus S. Holcomb, 2016 WI App 70; case activity (including briefs)

“While sentence diagramming may be the bane of fifth graders everywhere, it is the trick of the trade in statutory construction.” Slip op. ¶9. “Punctuation too is important. . . . It can be the difference between ‘Let’s eat, Grandma!’ and ‘Let’s eat Grandma!'” ¶12. So begins today’s lesson on the proper way to read §939.617, which provides minimum sentences for certain child sex offenses.
Wis. 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 engaged in the sexually explicit conduct.

The court of appeals says Holcomb reads “or” as “a big bold neon sign such that the ‘circumstance’ delineated in Wis. Stat. §939.617(2)(b) only applies to the words following the ‘or.'” ¶7.

¶8 The text of WIS. STAT. § 939.617(2) does not support Holcomb’s reading.  We conclude that the circuit court may only depart from the minimum— either by imposing probation or less than three years’ initial confinement—if the defendant was less than forty-eight months older than the child-victim.

¶9 . . . § 939.617(2) is written as a single sentence separated by a comma into two clauses:  an introductory clause and the main clause that it modifies.  Here, the introductory clause is framed as a conditional statement:  “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 ….”  Id.  If these conditions are met, the main clause provides that “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.”  Sec. 939.617(2).  A colon follows the main clause and outlines two such “circumstances,” including the provision limiting the applicability in child pornography convictions to where the defendant is less than forty-eight months older than the child-victim.

¶10 The natural and normal reading is that the introductory “if” clause preceding the comma modifies the whole of the main clause, and the circumstances following the colon modify the entire section preceding the colon.

Ouch. You can almost see the ruler smack his knuckles. And yet the hapless Holcomb has a fair point. Courts are to read statutes in pari materia with related statutes to aid in a correct interpretation. State ex rel. Kalal v. Circuit Court for Dane County,  2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. Thus, he argues that §939.617 must provide for a presumptive minimum penalty as opposed to a mandatory minimum penalty because it is titled “minimum sentence for certain child sex offense.” In contrast §939.16 is titled “mandatory minimum for child sex offenses,” §939.618 is titled “mandatory minimum for repeat serious sex crimes,” and §939.619 is titled “mandatory minimum sentence for repeat serious violent crimes.” See Holcomb’s Brief at 9. The court of appeals gives 3 reasons why Holcomb is wrong. See ¶14. But the take away is simply this:

 ¶15 . . . § 939.617 has a plain and unambiguous meaning When faced with a conviction for possessing child pornography, subsec. (1) requires the court to impose a bifurcated sentence with at least three years’ initial confinement.  Sec. 939.617(1).  Subsection (2) allows the court to depart from this minimum and impose less initial confinement or probation only if the defendant is not more than forty-eight months older than the child-victim.  Sec. 939.617(2)(b).  Holcomb does not meet this age requirement; he is far older than his child-victims.

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{ 2 comments… add one }
  • Randy August 4, 2016, 12:55 pm

    Here’s yet another possible take away from this posting perhaps, also for those alleged actors who don’t meet the defendant / child victim age differential exception, if you can get the prosecution and more importantly, the sentencing court to agree to it that is. Amend to Child Enticement, per 948.07 (3) or (4), same class felony, thereby avoiding the grammar lesson, the knuckle smacking, but most importantly of course, the required minimum sentence as well.

  • Kris Klein August 4, 2016, 8:06 pm

    It already happened recently up in Chippewa County. Prosecutor amended the charges for a man charged with multiple counts of possession of child pornography. DA amends the charges to a single charge of child enticement. Man avoids 3 years in prison by getting probation. However, a certain prosecutor won’t amend charges in Milwaukee County. I wonder why that county is “inflexible” with the law? Hmm…..heavily African-American population, institutionalized racism comes to mind

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