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Sentencing Review – Presumptive Minimum, § 939.617(2)

State v. Alok Kumar, 2010AP2703-CR, District 1, 11/8/11

court of appeals decision (not recommended for publication); for Kumar: Robin Shellow, Michael E. O’Rourke; case activity

Sentence to presumptive minimum (5 years confinement) for using a computer to facilitate a child sex crime, § 948.075(lr), is upheld as a proper exercise of discretion, against Kumar’s arguments that the sentencing court: didn’t permit him to show sentences imposed by other circuit courts in presumptive-minimum cases; treated the presumptive minimum sentence as a “mandatory minimum”; and over-emphasized the crime’s seriousness. “A circuit court has broad sentencing discretion and may give the various sentencing factors the weight it deems ¶10. The sentencing court credited Kumar with the good he had done, as weighed against the need for deterrence, ¶11.

¶12      Kumar argues that the circuit court put too much emphasis on the crime’s seriousness.  We disagree.  “Imposition of a sentence may be based on one or more of the three primary factors after all relevant factors have been considered.”  State v. Spears, 227 Wis. 2d 495, 507–508, 596 N.W.2d 375, 380 (1999).  The circuit court has the discretion to give more weight to one factor than others and to base the sentence on any or all of the factors.  See State v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183, 192 (Ct. App. 1984).  That the circuit court put significant weight on the crime’s seriousness and the need to protect potential victims of other sexual predators does not make its sentence wrong or mean that it erroneously exercised its discretion.[3]  Further, Kumar’s contention that the circuit court should have allowed him to show what other judges sentenced other persons convicted of similar crimes is without merit.  See State v. Tappa, 2002 WI App 303, ¶20, 259 Wis. 2d 402, 412, 655 N.W.2d 223, 228 (circuit court not required to base sentencing decision on “sentences of other defendants”); State v. Toliver, 187 Wis. 2d 346, 362–363, 523 N.W.2d 113, 119 (Ct. App. 1994) (disparity of sentences not improper when individual sentences are based on three main sentencing factors); State v. Curbello-Rodriguez, 119 Wis. 2d 414, 435–436, 351 N.W.2d 758, 768–769 (Ct. App. 1984) (each defendant should have individualized sentence even though various defendants may have committed the same statutory offense).

Finally, the record doesn’t show that the sentencing court in fact treated the presumptive as a mandatory minimum, ¶15.

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