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Penalty Enhancer – Motion to Dismiss

By: Derek Hawkins//July 12, 2016//

Penalty Enhancer – Motion to Dismiss

By: Derek Hawkins//July 12, 2016//

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. James D. Heidke

Case No.: 2015AP1420-CR

Officials: Curley, P.J., Kessler and Brennan, JJ.

Focus: Penalty Enhancer – Motion to Dismiss

James D. Heidke appeals the order emanating out of his conviction for violating WIS. STAT. § 948.075(1r) entered upon his guilty plea. The issue on appeal relates to the order denying his motion to dismiss the penalty enhancer found in WIS. STAT. § 939.617(1) (2013-14) and denying his request to declare § 939.617(1) unconstitutional, which the trial court entered prior to Heidke’s plea. The aforementioned penalty enhancer set a mandatory minimum sentence of five years for his conviction of using a computer to facilitate a child sex crime contrary to WIS. STAT. § 948.075(1r). Heidke argues that the penalty enhancer has no rational basis to a crime of computer facilitation because by contrast, a person convicted of the completed act of sexual assault with a child found in WIS. STAT. § 948.02 does not face a mandatory sentence of any kind. He also contends the penalty enhancer is unconstitutional as applied to him. We are satisfied that the legislature had reasonable and practical grounds for making the conviction for using a computer to facilitate a child sex crime subject to a mandatory minimum sentence. Thus, there was a rational basis for the penalty enhancer. The fact that a conviction for sexual assault of a child (§ 948.02), which has different elements than § 948.075(1r), has no mandatory sentence does not render the penalty enhancer irrational. In addition, we find his argument that the statute is unconstitutional as applied to him unavailing. Consequently, the penalty enhancer was properly applied, and § 939.617(1) is constitutional. We affirm.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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