Sentencing Guidelines – Resentencing

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Joshua D. Goldsmith

Case No.: 2019AP1380-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Sentencing Guidelines – Resentencing

In these consolidated appeals, Joshua Goldsmith argues he is entitled to resentencing on his convictions for substantial battery and possession of child pornography because inaccurate information was introduced and relied on by the circuit court at sentencing. We reject both of Goldsmith’s claims and affirm.

Regarding the substantial battery conviction, Goldsmith contends the circuit court relied on the State’s representation that the victim’s head wound was eight inches long when it was, in fact, slightly less than four inches. He argues this erroneous belief contributed to the court’s conclusion that the wound was severe and disfiguring. We conclude Goldsmith has not shown actual reliance on the inaccurate information about the length of the wound, as it is undisputed that the wound was significant and cut to the bone.

In the child pornography case, Goldsmith argues the circuit court’s statement that the child pornography was “on” his phone was inaccurate when the pornography was, in fact, located in his e-mail account and merely accessible from the phone. We conclude Goldsmith is judicially estopped from making this argument, as he stipulated at the sentencing hearing that most of the pornography was located “on his phone.” We also conclude his claim fails on its merits, as the State has demonstrated that Goldsmith’s sentence would have been no different had the court believed the pornography was located on Goldsmith’s e-mail account.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.