Sentencing – Review – Excessiveness – Sexual Contact, Closeness in Age between Defendant and Minor Victim

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07For Thexton: Kirk B. Obear

Issue/Holding: Sentence of 13 years (3 IC; 10 ES) for sexual contact was not harsh and excessive, notwithstanding closeness in age between defendant and underage victim:

¶12 As to excessiveness, Thexton notes that he was close in age to the victim. The sexual contact between the two began when he was seventeen and she fourteen and ended when he was eighteen and she fifteen. He points out that the sexual encounters between him and the victim did not involve force and argues that these facts, along with his other positive attributes, militate in favor a shorter sentence. However, it is clear that the court considered the relative gravity of the offenses as a mitigating factor in imposing the sentence that it did, but also considered Thexton’s other conduct, including that leading to his previous conviction and that which occurred while he was on probation. We note that the maximum sentence for Thexton’s offense at the time it was committed was thirty years, with twenty years of prison time. [7] A sentence of thirteen years, three of them in prison, does not strike us as disproportionate to the offense here. See State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983) (“A sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”).

Left unmentioned by the court: the settled principle that a sentence is presumptively not harsh and excessive, see, e.g., State v. Michael A. Grindemann, 2002 WI App 106, ¶¶29-33.