State v. Greg Patrick Gogin

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.
March 25, 2021
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. 2019AP1593-CR Cir. Ct. No. 2015CF87

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GREG PATRICK GOGIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Green
County: JAMES P. DALEY and DUANE M. JORGENSON, Judges. Affirmed.

Before Blanchard, Kloppenburg, and Nashold, 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).
No. 2019AP1593-CR

¶1 Greg Gogin appeals a judgment of conviction for two counts of incest
with a child and one count of first-degree sexual assault of a child under age thirteen.
He also appeals the circuit court’s order denying his motion for postconviction
relief.1 Gogin’s arguments relate to sentencing. He contends that (1) the circuit
court violated his due process rights by relying on inaccurate information at
sentencing, (2) the circuit court erroneously exercised its sentencing discretion in
three respects, and (3) a new factor warrants sentence modification. We reject these
arguments and affirm.

Background

¶2 The State charged Gogin with ten offenses relating to two victims.
Pursuant to a plea agreement, Gogin pled guilty to two counts of incest with a child,
A., and one count of first-degree sexual assault of a child under age thirteen, P. The
remaining counts were dismissed and read in or dismissed outright.

¶3 The circuit court sentenced Gogin to eighteen years of initial
confinement followed by fifteen years of extended supervision on each of the two
incest counts, and twenty-two years of initial confinement followed by twenty years
of extended supervision on the sexual assault count. The court made the sentences
for the two incest counts involving A. concurrent with one another but consecutive
to the sentence for the sexual assault count involving P. As a result, Gogin received
a total combined sentence of forty years of initial confinement followed by thirty-
five years of extended supervision.

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The Honorable James P. Daley presided over Gogin’s plea and sentencing. The
Honorable Duane M. Jorgenson presided over postconviction proceedings.

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Discussion

A. Inaccurate Information

¶4 Gogin first argues that the circuit court violated his due process rights
by relying on inaccurate information at sentencing. A claim of sentencing based on
inaccurate information requires the defendant to “prove, by clear and convincing
evidence, both that the information is inaccurate and that the trial court relied upon
it.” State v. Payette, 2008 WI App 106, ¶46, 313 Wis. 2d 39, 756 N.W.2d 423.
Here, Gogin does not satisfy the first prong of this two-part test.

¶5 Gogin contends that the inaccurate information is that the circuit
incorrectly assumed both that he sexually assaulted P. more than twice and that he
assaulted P. over a period of time longer than five to ten years. Gogin points to the
following comments by the circuit court at sentencing:

But the decisions you’ve made, and the course of conduct
you engaged in over a long period of time for A[.] was from
the time she was 5 or 6 until she was 18. I don’t know the
extent, but I expect it is longer than 5 to 10 years with P[.]

….

… I’ve got to sentence you with a punitive aspect
understanding that these children for one, at least one child,
for 12 to 13 years before she became 18, and the other child,
at least 5 to 10 years before she turned 18 ….

(Emphasis added.) Gogin argues that, contrary to the circuit court’s comments, the
record shows that he assaulted P. only two times. He further argues that the record
does not support the court’s assumption that he assaulted P. over a period of time
longer than five to ten years.

¶6 We disagree and conclude that Gogin fails to show by clear and
convincing evidence that the circuit court’s comments were inaccurate. We first

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note that one of the court’s comments acknowledged uncertainty as to the length of
time. Regardless, even if we assume that the court found that Gogin assaulted P.
numerous times over a period of time “longer than” or “at least” “5 to 10 years,”
Gogin has not shown this finding was inaccurate. The criminal complaint
allegations and the presentence investigation report support a finding that Gogin
sexually assaulted P. numerous times over the course of a minimum of six or seven
years. And, such a finding is consistent with the court’s comments that the assaults
occurred for “longer than” or “at least” “5 to 10 years.” We do not interpret the
court’s comments as a finding that Gogin assaulted P. for longer than ten years or
at least ten years.

¶7 As support for his argument that he assaulted P. only two times within
a relatively short period of time, Gogin points to his own testimony at the
postconviction hearing. Gogin’s reliance on his testimony is not persuasive. We
see no basis to conclude that the circuit court credited that testimony when it rejected
Gogin’s postconviction claim that the court relied on inaccurate information.

B. Circuit Court’s Exercise of Sentencing Discretion

¶8 We turn to Gogin’s argument that the circuit court erroneously
exercised its sentencing discretion. Gogin contends that the court erred by
(1) imposing unduly harsh sentences, (2) imposing consecutive sentences without
explaining why consecutive sentences were necessary, and (3) imposing sentences
that ensure Gogin will not receive treatment. We address each contention in turn,
starting with the contention that the sentences were unduly harsh.

¶9 When a defendant contests the harshness of a sentence, “we will hold
that the sentencing court erroneously exercised its discretion ‘only where the
sentence is so excessive and unusual and so disproportionate to the offense

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No. 2019AP1593-CR

committed as to shock public sentiment and violate the judgment of reasonable
people concerning what is right and proper under the circumstances.’” State v.
Stenzel, 2004 WI App 181, ¶21, 276 Wis. 2d 224, 688 N.W.2d 20 (quoting Ocanas
v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975)). “‘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.’” Stenzel, 276
Wis. 2d 224, ¶22 (quoted source omitted).

¶10 Gogin’s sentences were well within the maximum and, we conclude,
“‘not so disproportionate to the offense committed as to shock the public sentiment
and violate the judgment of reasonable people.’” See id. (quoted source omitted).
In arguing to the contrary, Gogin contends that the circuit court disregarded
important mitigating factors and placed too much emphasis on the seriousness of
his offenses and protection of the public. This argument is not persuasive. “The
primary factors for the sentencing court to consider are the gravity of the offense,
the character of the offender, and the public’s need for protection.” State v. Odom,
2006 WI App 145, ¶7, 294 Wis. 2d 844, 720 N.W.2d 695. “The weight given each
of these factors lies within the trial court’s discretion, and the court may base the
sentence on any or all of them.” Id.

¶11 Moreover, the circuit court expressly referenced several mitigating
factors when imposing Gogin’s sentences. The fact that the circuit court did not
expressly reference the mitigating factors that Gogin views as most important does
not provide a basis for this court to overturn Gogin’s sentences as unduly harsh.

¶12 Gogin next contends that the circuit court erroneously exercised its
discretion by imposing consecutive sentences without explaining why consecutive

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No. 2019AP1593-CR

sentences were necessary. We disagree that the circuit court failed to explain its
reasons for imposing consecutive sentences. The court focused repeatedly on the
long-term harm that Gogin had caused to both A. and P. It stated: “I’ve got to
sentence you with a punitive aspect understanding that these children … have
suffered in the past and will continue to suffer in the future.” The court emphasized
the need to ensure that A. and P. would feel safe, without having to be afraid that
Gogin might appear in their lives again. The circuit court’s sentencing remarks
adequately explained why the court made the sentences for the two counts involving
A. concurrent with one another but consecutive to the sentence for the count
involving P., with a total combined sentence that may keep Gogin confined for the
rest of his life.

¶13 We turn to Gogin’s argument that the circuit court erroneously
exercised its discretion by imposing sentences that ensure he will not receive
treatment. Gogin argues that this result is contrary to the court’s stated intent that
Gogin receive treatment. He points to the court’s statement that it “must render a
sentence which is going to keep you incarcerated so you may continue with your
treatment.” Gogin asserts that a department of corrections policy will prevent him
from receiving treatment until three years before his release. He argues that “the
sentence imposed by [the] court virtually guarantees that one of its stated purposes
will never be met.”

¶14 We reject this argument for two related reasons. First, the record
reflects ambiguity as to what the circuit court meant by treatment, and Gogin does
not establish as a factual matter that whatever treatment the court had in mind will
be unavailable to Gogin until three years before his anticipated release. Second, the
circuit court’s sentencing remarks as a whole show that treatment was not the court’s
primary objective but at most a secondary objective to the court’s other objectives.

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No. 2019AP1593-CR

C. New Factor

¶15 Gogin’s final argument is that the existence of a new factor warrants
sentence modification. He contends that the new factor is a subsequent prison
sentence in a Waukesha County case in which sentence was imposed consecutive
to his sentences here. For the reasons that follow, we agree with the State that Gogin
has not shown the existence of a new factor.

¶16 “The defendant has the burden to demonstrate by clear and convincing
evidence the existence of a new factor.” State v. Harbor, 2011 WI 28, ¶36, 333
Wis. 2d 53, 797 N.W.2d 828. A “‘new factor’” is:

“a fact or set of facts highly relevant to the imposition of
sentence, but not known to the trial judge at the time of
original sentencing, either because it was not then in
existence or because, even though it was then in existence, it
was unknowingly overlooked by all of the parties.”

Id., ¶40 (quoted source omitted). “Whether the fact or set of facts put forth by the
defendant constitutes a ‘new factor’ is a question of law.” Id., ¶36.

¶17 Gogin does not meet his burden of clear and convincing evidence. He
provides no basis to conclude that the circuit court, when imposing sentence here,
was unaware of the Waukesha County case or of the possibility that it exposed
Gogin to an additional prison sentence. The record reflects the opposite. The
presentence investigation report, which the circuit court stated it had reviewed, lists
a pending Waukesha County case with charges for first-degree sexual assault of a
child and incest with a child. In State v. Ramuta, 2003 WI App 80, 261 Wis. 2d
784, 661 N.W.2d 483, we similarly concluded that a subsequent sentence in a
separate case was not a new factor when the court was aware of the case. See id.,
¶¶18, 20.

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No. 2019AP1593-CR

¶18 We disagree with Gogin that his situation is more similar to State v.
Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, in which the new
factor involved the unexpected revocation of probation in a separate case when
“everyone understood” at the time of sentencing that the probation would not be
revoked. See id., ¶¶3-5, 10-12, 14. Gogin does not establish that there was an
analogous understanding here, such as an understanding that he would not receive
a prison sentence in the Waukesha County case.

¶19 In sum, for the reasons stated above, we affirm the judgment of
conviction and the order denying Gogin’s motion for postconviction relief.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. § 809.23(1)(b)5.
(2019-20).

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