State v. John R. Brott, 2021AP2001, 8/30/23, District 2 (recommended for publication); case activity (including briefs)
In 2016, the court of appeals held that a sentencing court must give effect to the mandatory minimum for possession of child pornography: a bifurcated sentence including three years of initial confinement. The statute’s language, the court said, precludes imposing and staying a prison sentence in favor of probation, or imposing less than three years of IC, unless an age-based statutory exception (where the defendant is no more than four years older than the child depicted) applies. State v. Holcomb, 2016 WI App 70, 371 Wis.2d 647, 886 N.W.2d 100.
Brott advances the same position Holcomb did, using a different statutory construction argument. He fares the same: outside the statutory exception, the mandatory minimum remains truly mandatory.
Brott’s main argument hinges on the use of the word “may” in Wis. Stat. § 948.12(1m), which says a person possessing child porn “may be penalized” in the manner prescribed later in the statute (the penalties for a Class D Felony). “May” is presumed to be discretionary, says Brott; why doesn’t it afford a sentencing judge the option of not imposing these penalties? Sure, Wis. Stat. § 939.617(1) says the sentencing court “shall impose” the three-year IC minimum, but that’s in conflict with the “may be penalized,” and the court should give effect to the “may”ness of § 948.12(1m).
The problem with this argument, says the court, is that it would mean a judge has total freedom to decide whether possession of child pornography is a crime at all, and if so, what sort of crime it is. This can’t be what the legislature meant:
Although the word “may” typically “creates a presumption that the statute is permissive[,]” “[t]his general principle can be rebutted if construing ‘may’ as mandatory is necessary to reflect legislative intent.” McGuire v. McGuire, 2003 WI App 44, ¶26, 260 Wis. 2d 815, 660 N.W.2d 308; see also Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810 N.W.2d 465. Applying this general principle to WIS. STAT. § 948.12, it is clear that “may” is mandatory as used in the possession statute because construing it otherwise would lead to unreasonable results and defy the clear legislative intent. This is so because § 948.12 is an elements and classification statute. It defines the crime of possession of child pornography, sets forth the elements that comprise the crime, and identifies the applicable class of felony for violations. The “may” language at issue relates specifically to the felony classification portion of § 948.12: whoever violates the possession statute “may be penalized under sub. (3)[,]” which sets forth two distinct felony classifications—Class D (paragraph (3)(a)) or Class I “if the person is under 18 years of age when the offense occurs” (paragraph (3)(b)). Id. The word “may” therefore does not mean that the circuit court has the option of whether to sentence a violator under subsection (3) or whether to impose a bifurcated sentence, as Brott suggests, but rather identifies which of the two felony classifications applies to the violation at hand: Class D or Class I. That classification, in turn, sets forth the penalties for each class of felony. See WIS. STAT. § 939.50(3).
To construe the word “may” as used in WIS. STAT. § 948.12 otherwise would defy logic and lead to an unreasonable result. For example, if the word “may” meant that a circuit court had discretion as to whether or not an offender would be penalized under § 948.12(3)’s felony classifications or whether an offender was subject to a bifurcated sentence, the court could simply determine that a convicted offender was guilty of a different felony classification with different maximum penalties or even that a convicted offender was not guilty of a felony at all. This would be unreasonable given that the legislature has specifically identified two—and only two—felony classifications that apply dependent upon the offender’s age at the time of the offense. Sec. 948.12(3). Indeed, if a circuit court had the discretion Brott believes § 948.12 provides, it would have been unnecessary for the legislature to identify the felony classifications that apply for possession of child pornography at all.
(¶¶14 -15).
The court also rejects Brott’s argument that because some courts–based on Court Tracker data–have not applied the mandatory minimum, his equal protection rights are violated by its application to him. (¶¶27-29).
