State v. Mark A. Mayo

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 14, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1844-CR Cir. Ct. No. 2015CF805

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARK A. MAYO,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Outagamie County: MITCHELL J. METROPULOS, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Mark Mayo appeals a judgment, entered upon his
no-contest pleas, convicting him of eight counts of capturing an image of nudity
No. 2018AP1844-CR

without consent, where the person depicted has a reasonable expectation of
privacy. Mayo also appeals the order denying his postconviction motion for
resentencing. Mayo argues that he is entitled to resentencing because his sentence
was based on inaccurate information. We reject Mayo’s arguments and affirm the
judgment and order.

BACKGROUND

¶2 The State initially charged Mayo with one count of capturing an
image of nudity without consent and twenty counts of possessing child
pornography. The charges arose from allegations that Mayo had downloaded at
least twenty images of child pornography to his laptop. The complaint further
alleged that Mayo set up hidden cameras in his bathroom to secretly record
“Julie”1—a foster child whom he adopted—using the toilet. In addition to Julie,
the State believed it identified three other victims in the recordings, including
“Rachel”—a foster child who, along with her sisters, briefly lived at the Mayo
home.2 A third amended Information did not include the possession of child
pornography counts, but it alleged eight counts of capturing an image of nudity
without consent. Mayo entered no-contest pleas to all of the eight alleged
offenses.

¶3 At sentencing, Rachel’s mother discussed the impact of the crimes,
noting “[t]he fear, the horror, the shame, and the hopelessness” her family shared.
She added that her family lost trust, security, and innocence that could not be

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2017-18), we use
pseudonyms instead of the victims’ names.
2
The State also identified a grandchild of Mayo and a friend of Julie as victims.

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replaced, emphasizing that Mayo was entrusted to protect and care for her children
“at their most vulnerable, and they were instead violated.” Rachel’s mother
further asked the court not to “unleash” Mayo into society without proper
punishment. Similarly, Julie’s victim impact statement explained that Mayo’s
crime negatively impacted everyone in her life and “is going to stay with [her] for
the rest of [her] life.” Julie added: “The part that hurts the most is that all of this
was caused by someone so important to me and someone that said he would never
do anything to hurt his family.”

¶4 The State recommended a total sentence of four years of initial
confinement and eight years of extended supervision. The State emphasized that
Mayo was a foster parent entrusted with providing neglected and abused children a
safe haven, yet he secretly recorded the victims “in the most private setting that
you could imagine, on the toilet.” The State recounted:

What we found on his computer years later was that there
were numerous different dates, numerous different victims,
in these videos, and almost without fail, on every single
day, you would see [Mayo] walking to the bathroom, he
would sit on the toilet, he would reposition the camera, to
make sure that it was recording what he wanted it to record.
He would leave the bathroom, and a few minutes later a
young child would walk in, and she would be exposed, they
would be using the restroom, they would be doing private
things that they wouldn’t expect their loving foster parent
to capture.

The State further recounted that it found videos capturing fourteen different dates
and “six different victims” on Mayo’s laptop.

¶5 Defense counsel asked the circuit court to follow the presentence
investigation report writer’s recommendation of probation with an imposed and
stayed sentence. The court ultimately imposed consecutive sentences on two of

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the counts, resulting in an aggregate seven-year term, consisting of three years’
initial confinement and four years’ extended supervision. With respect to the
remaining six counts, the court withheld sentence and imposed a consecutive term
of four years’ probation. Mayo’s postconviction motion for resentencing was
denied after a hearing, and this appeal follows.

DISCUSSION

¶6 Mayo contends he is entitled to resentencing because the circuit
court relied on two pieces of inaccurate information when imposing his sentences.
A defendant has a due process right to be sentenced on the basis of accurate
information. State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717
N.W.2d 1. Whether a defendant has been denied this right presents a
constitutional issue that this court reviews independently. Id. A defendant who
moves for resentencing on the ground that the circuit court relied on inaccurate
information must establish that there was information before the sentencing court
that was inaccurate and that the court actually relied on the inaccurate information.
Id., ¶31. “Whether the court ‘actually relied’ on the incorrect information at
sentencing was based upon whether the court gave ‘explicit attention’ or ‘specific
consideration’ to it, so that the misinformation ‘formed part of the basis for the
sentence.’” Id., ¶14 (citation omitted).

¶7 Here, Mayo asserted that the prosecutor erroneously stated at
sentencing that there were six different victims when, in fact, there were four.
Mayo also asserted that the State misidentified Rachel as one of the victims.
Although the State stipulated that this information was inaccurate, it argues that
the sentencing court did not rely on any of the inaccuracies. We agree.

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No. 2018AP1844-CR

¶8 In pronouncing its sentence, the circuit court recognized that it
needed to weigh a number of factors, including “the severity of the offenses, the
impact the offenses have had on the victims,” Mayo’s prior record, his
dangerousness to the public, his character, his rehabilitative needs, and his
potential for rehabilitation. See generally State v. Gallion, 2004 WI 42, ¶¶39-46,
270 Wis. 2d 535, 678 N.W.2d 197. The court acknowledged that Mayo had
“basically no prior record,” and that he was deemed a “low risk to reoffend.” The
court noted, however, that it had to “also focus on the severity of these offenses as
well as the impact on the victims, not only on [Rachel,] that was presented here
today through her mother, but the other victims as well, including [Mayo’s] own
adopted daughter.” (Emphasis added.)

¶9 The circuit court added that what occurred here was a “well planned
out series of crimes,” that Mayo “placed a surveillance device in a bathroom with
the intended purpose to record not only [Mayo]’s daughter, but the others, in a
sexual way.” The court rejected Mayo’s claim that he set up the recording device
to investigate what he perceived to be “some type of medical condition” related to
Julie. The court stated that it was “deeply disturbing” that Mayo would take on
“children that have, really, by their definition, trauma, because they’re in need of
foster parents, and that [Mayo] would further subject them to trauma.” The court
further stated:

These kids have been through enough and they want a
safe home, and what you did to them was exasperate [sic]
their trauma, and, as [Rachel’s mother] has pointed out,
likely created life-long issues for these children and for
your own child. This is a child who came to trust you,
viewed you as someone that would protect her, and then
you commit this assault on her. I recognize it’s not a
physical assault, but the damage this type of behavior
causes is profound and it’s deep-seated and it will take a

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No. 2018AP1844-CR

lifetime to deal with. … So the severity of the offense on
the victims is profound and does warrant incarceration.

(Emphasis added.)

¶10 Mayo emphasizes that the circuit court made explicit reference to the
statements made by Rachel’s mother at sentencing. The court’s comments as a
whole, however, do not reflect actual reliance on the fact that Rachel, as opposed
to another child, was one of Mayo’s victims.3 The court focused on the predatory
and invasive nature of Mayo’s behavior, noting that vulnerable minors were
harmed by someone they trusted, and that Mayo was unwilling to acknowledge the
“perversion” that caused him to engage in these behaviors. The court also
expressed concern about the impact of Mayo’s crimes on the victims as a whole,
rather than on anything specific to Rachel. Mayo nevertheless asserts that
Rachel’s identity as a victim affected the sentences because it showed Mayo
preyed upon foster children. Even though Rachel was misidentified as a victim,
Julie had also been a foster child before her adoption by Mayo. Thus, we are not
persuaded that Rachel’s misidentification formed the basis for Mayo’s sentences.

¶11 Although it is undisputed that the sentencing court never mentioned
six victims, Mayo asserts that the court “presumably accepted as true that there
were, in fact, six victims,” as the court made “commentary on there being several
victims.” There were, however, several victims, and Mayo does not explain how
the inaccurate information of the State’s reference to six victims, as opposed to
four actual victims, impacted the sentences. Ultimately, Mayo has failed to show
that the sentencing court relied on any inaccurate information about the number or

3
The identity of the fourth victim remains unknown.

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No. 2018AP1844-CR

identity of the victims when it sentenced Mayo. We therefore conclude the circuit
court properly denied the motion for resentencing.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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