A state appeals court overturned a Shawano County man’s 27-year prison sentence for possessing child pornography, concluding that the sentence’s length would delay his treatment and increase his chances of re-offending.
The District III Court of Appeals ruling Wednesday overturns Judge William Kussell Jr.’s decision to deny Christian J. Wilson’s request for a lesser sentence at a post-conviction hearing earlier this year.
Former Circuit Judge Thomas Grover imposed Wilson’s sentence in June 2011. District Attorney Gregory Parker had recommended 15 to 18 years in prison and 20 years probation. Wilson’s attorney requested five years prison and five years probation.
Grover’s sentencing order also included 27 years of probation.
Kussell said he would not reduce Wilson’s sentence just because it was much longer than any other defendant had recently received in Shawano or seven surrounding counties.
On appeal, public defender Ellen Hirsch argued Wilson’s sentence was contrary to Grover’s stated goal that a longer sentence should protect the public and promote the defendant’s rehabilitation.
Grover and Kussell had stated that a lengthy prison term is needed because Wilson represents a high risk of re-offending. However, a clinical psychologist for the defense said new data indicates that Wilson is a greatly reduced risk.
The longer the sentence, the longer Wilson would wait to receive treatment, which diminishes his likelihood of rehabilitation, Hirsch argued.
Wilson has “borderline intellectual functioning,” according to the defense psychologist who evaluated Wilson in 2012. Both the state and defense experts agreed that Wilson’s mental state is deteriorating in prison, and Hirsch argued that a lengthy prison term would aggravate that.
Also, a long sentence is not needed to get Wilson into treatment, as the Department of Corrections does not begin sex offender treatment until after the sentence is completed. Also, the treatment program best suited to Wilson’s learning disabilities takes three years to complete, Hirsch noted.
The state defended the sentence, saying experts can have conflicting opinions on methods of diagnosis and treatment. Also, evidence of Wilson’s reduced risk of re-offending was not presented at sentencing.
The new evidence and argument convinced the appeals court that the length of the sentence was counterproductive to Wilson’s rehabilitation.
“We conclude that, as a matter of law, the new information regarding Wilson’s likelihood of re-offending and the harmful delay of treatment constitutes a new factor entitling him to sentence modification,” according to the nine-page unsigned opinion.
The case is returned to Kussell to impose a new sentence.
Parker said, because the case remains open, he could not comment on the opinion or what his sentence recommendation would be.
Dana Brueck, spokesperson for the attorney general’s office, had no comment other than the state will not appeal the decision to the Wisconsin Supreme Court.
A call to the State Public Defender’s office was not returned before deadline.
Wilson was charged in 2010 with 31 counts of possessing child pornography based on images found on his computer that he downloaded in Wittenberg between January and June 2010, according to the criminal complaint. He pleaded no contest to 18 counts and had the remaining counts dismissed but considered for purposes of sentencing.
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