State v. Jonathan M. Kwiatkowski

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.
July 30, 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 Nos. 2019AP1938-CR Cir. Ct. Nos. 2016CF137
2016CF440
2019AP1939-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JONATHAN M. KWIATKOWSKI,

DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for
Kenosha County: MARY KAY WAGNER, Judge. Affirmed.

Before Neubauer, C.J., Gundrum and Davis, 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. 2019AP1938-CR
2019AP1939-CR

¶1 PER CURIAM. In these consolidated matters, Jonathan M.
Kwiatkowski appeals from judgments convicting him of third-degree sexual assault
and misconduct in public office, and an order denying his postconviction motion for
resentencing or sentence modification. Specifically, Kwiatkowski argues that he is
entitled to resentencing because the circuit court relied on inaccurate information
and otherwise erroneously exercised its discretion in imposing sentence. In the
alternative, he asserts that the existence of new factors warrants modification of his
sentence. We reject his arguments and affirm.

BACKGROUND

¶2 Kwiatkowski, then a Kenosha County corrections officer, was
charged in two separate complaints with sexually assaulting K.R.J and K.I., two
female inmates released to electronic monitoring. In both cases, the State charged
Kwiatkowski with one count each of (1) second-degree sexual assault by a
correctional staff member of an individual who was confined to a correctional
institution, and (2) misconduct in public office.

¶3 The complaint involving K.I. alleged that on July 11, 2015, she came
to the sheriff’s department to have her electronic ankle monitor moved from one leg
to the other. Kwiatkowski and Jared Reinersman, another corrections officer, were
in the room when K.I. entered. Reinersman left the room. Kwiatkowski
“approached [K.I.] and backed her into the lockers in the room.” He then “put his
hand down inside the front of her buttoned jeans and inserted his fingers into her
vagina.” K.I. did not consent. She did not immediately report the assault out of fear
of retaliation.

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¶4 Prior to the assault, Kwiatkowski obtained K.I.’s cell phone number
from her corrections file and used a clandestine cell phone number to initiate a text
exchange. K.I. believed he was trying to have sex with her. Kwiatkowski admitted
that his texting with K.I. was “pretty constant” and he knew it was wrong.

¶5 The complaint also set forth “other acts” evidence involving two
additional female inmates, M.A.T. and K.R.J. In August 2015, M.A.T. received an
“awkward” phone call from Kwiatkowski on a “blocked number” to “chit chat.”
Kwiatkowski admitted that he obtained M.A.T.’s phone number from her
corrections file and “block[ed] the number on his personal cell phone before calling
her.” Cell phone records showed that Kwiatkowski called M.A.T. four times.

¶6 The other acts involving K.R.J. were later charged in a separate
complaint and form the basis for Kwiatkowski’s conviction for misconduct in public
office. K.R.J. was on electronic monitoring from late 2014 to early 2015. At the
end of 2014, she went in to get her ankle bracelet adjusted. While behind a privacy
wall, Kwiatkowski slapped her butt and put his hand up her tank top. As she left,
he told her, “You better answer your phone.” That night, she received a call from a
private number. It was Kwiatkowski. She assumed he got her cell phone number
from her corrections file. K.R.J. reported that from there, she received “multiple
phone calls and thousands of texts from” Kwiatkowski. Kwiatkowski began to
show up at K.R.J.’s residence and they would engage in sexual activity. After the
first encounter, K.R.J. told Kwiatkowski that she was using heroin and was
concerned about her upcoming urinalysis (UA). Kwiatkowski told her not to worry
and he removed her name from the UA testing list. According to the complaint, jail
records showed that K.R.J. was not given a UA from January 4 to January 22, 2015.
Before and after that period, she was tested about every other day.

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¶7 Pursuant to a negotiated settlement, Kwiatkowski pled guilty to a
reduced charge of third-degree sexual assault in the case involving K.I., and to the
misconduct charge in the case involving K.R.J. The State agreed to recommend an
unspecified prison term for sexually assaulting K.I., and consecutive probation for
misconduct in public office. The circuit court ordered a presentence investigation
report (PSI) and prior to sentencing, Kwiatkowski filed a privately prepared
presentence report along with a sex offender evaluation report authored by forensic
psychologist Dr. Melissa Westendorf.

¶8 At sentencing, the prosecutor emphasized the abuse of power by
Kwiatkowski over his vulnerable victims by using his position to gain access to their
personal information and cell phone numbers, as well as to information about their
mental health histories, enabling him to attack their credibility. The prosecutor
challenged Westendorf’s opinion that Kwiatkowski was a low risk to reoffend,
pointing to several risk factors that were apparent from his behavior as well as the
fact that the doctor did not do a PCL-R risk analysis often used in WIS. STAT.
ch. 980 cases. The prosecutor asked the court to “send the message” to anyone else
who would abuse a position of trust and target vulnerable victims, adding that
punishment is “very important” even if Kwiatkowski is not a great risk to reoffend.

¶9 Next, K.I. addressed the sentencing court, stating that she was
“shocked” when she started receiving personal text messages from Kwiatkowski.
She “panicked” when Reinersman left her in the room alone with Kwiatkowski. She
felt trapped because the door was locked from inside. When Kwiatkowski shoved
her against the lockers and thrust his fingers inside her vagina, K.I. reminded him
that the other officer might return. Kwiatkowski answered that he would not return.

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K.I. said she thought she saw a camera in the room and that when she mentioned it
to Kwiatkowski, he told her he had turned it off.

¶10 Trial counsel requested that a prison sentence be imposed but stayed
in favor of probation. Counsel noted that Kwiatkowski had no prior criminal record
and a good work history and pointed to Westendorf’s opinion that Kwiatkowski
presented a low risk to reoffend. Counsel also drew the court’s attention to the
collateral consequences that Kwiatkowski suffered: the loss of his job, his home,
his marriage, and his reputation. Counsel reminded the court that Kwiatkowski
would have to register as a sex offender and was facing civil liability and informed
it of the rehabilitative measures he had taken since his arrest.

¶11 In pronouncing sentence, the circuit court emphasized that
Kwiatkowski’s actions were predatory in nature and constituted a grave and far-
reaching violation of trust. It focused on the severity of the offenses, explaining that
he “betrayed” not just the victims but also violated the trust placed in him by the
system and the public. The court explained, “you have betrayed your fellow
officers, the sheriff’s department, the drug and treatment programs of this
community, of which some of these people participate in, and the judges who place
people in the custody of the jail for safekeeping.”

¶12 The sentencing court pointed to the fact that Kwiatkowski’s position
enabled him to invade the victims’ privacy. “You violated their privacy by going
into their files that you had no right to do that. You had no right to use their phone
numbers to contact them outside of the workplace. You have violated those people
and this system in so many ways I would be talking too long if I kept going.” That
was “predatory” behavior, the court explained, as was Kwiatkowski’s choice of
vulnerable victims.

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¶13 In discussing the assault on K.I., the sentencing court stated:

The predatory nature of the offense against [K.I.], of shutting
off the camera, of getting the other officer to leave the room,
which is another interesting subject completely, and getting
her up in the corner, tell me how that is different than in the
dark of night, going down an alley, and grabbing a woman
and pushing her up against a wall, and physically violating
her body?

The court also observed that Westendorf’s report did not discuss much of
Kwiatkowski’s predatory behavior.

¶14 The sentencing court determined that probation would unduly
depreciate the seriousness of the offenses because they were committed against the
most vulnerable of victims: women who are locked up. The court was not impressed
with Kwiatkowski’s explanations for his actions, focusing as they did on his own
feelings and his neediness rather than on the hard facts that he sexually assaulted
women and violated the public trust. The circuit court imposed consecutive
sentences as follows: five years of initial confinement followed by three years of
extended supervision on the sexual assault; one year of initial confinement followed
by two years of extended supervision on the misconduct in public office.

¶15 Kwiatkowski filed a postconviction motion seeking resentencing or
sentence modification. In support of resentencing, he alleged that the circuit court
(1) relied on the “factually inaccurate assumptions” that he asked Reinersman to
leave the room and turned off the camera before assaulting K.I.; and (2) erroneously
exercised its sentencing discretion “by failing to provide an adequate explanation
for its sentence,” including how the sentence constituted “the minimum amount of
custody or confinement which is consistent with the protection of the public, the
gravity of the offense and the rehabilitative needs of the defendant” under McCleary

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v. State, 49 Wis. 2d 263, 276, 182 N.W.2d 512 (1971), and State v. Gallion, 2004
WI 42, ¶¶23, 44, 270 Wis. 2d 535, 678 N.W.2d 197. Kwiatkowski further alleged
that sentence modification was warranted due to the existence of the following new
factors: the inaccurate information alleged in support of resentencing; the court’s
misapprehension of the “true nature” of K.I.’s relationship with Kwiatkowski; and
the court’s “erroneous assumptions” about Westendorf’s sex offender evaluation.

¶16 At a hearing on his postconviction motion, Kwiatkowski produced
evidence tending to show that there was no camera in the room where he assaulted
K.I., and that he did not ask Reinersman to leave them alone. In response to
statements made by the prosecutor and the circuit court at sentencing, Westendorf
testified to explain or justify her methodology. Without objection, Kwiatkowski
offered a statement made by K.I. to investigating officers when she first reported
the assault. He alleged that her statement contradicted her comment at sentencing
that she was “completely shocked” when she first received a text from Kwiatkowski.
According to the postconviction motion, K.I. did not become upset with or block
Kwiatkowski’s texts until after he sexually assaulted her. The court denied the
postconviction motion in full. Kwiatkowski appeals.

DISCUSSION

The circuit court did not violate Kwiatkowski’s due process right to be
sentenced on the basis of accurate information.

¶17 Kwiatkowski maintains that the circuit court relied on inaccurate
information at sentencing, namely that prior to assaulting K.I., Kwiatkowski turned
off the camera in the office and arranged for Reinersman to leave them alone.
According to Kwiatkowski, these misapprehensions led the sentencing court to

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determine that the assault was pre-planned and therefore, especially aggravated in
nature.

¶18 A criminal 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. To establish that he or she is entitled to resentencing on this
basis, a defendant must prove by clear and convincing evidence that (1) inaccurate
information was before the sentencing court, and (2) the sentencing court actually
relied on the inaccurate information. Id., ¶¶2, 26. If the defendant makes this
showing, the burden shifts to the State to prove beyond a reasonable doubt that the
error was harmless. State v. Travis, 2013 WI 38, ¶¶23, 347 Wis. 2d 142, 832
N.W.2d 491. Review of this constitutional issue is de novo. Id., ¶20.

¶19 Assuming that Kwiatkowski did not turn off a camera or ask
Reinersman to leave the room, and that the circuit court actually relied on this
misinformation at sentencing, we conclude that any error was harmless. That is,
there is no reasonable probability that the sentencing court’s specific reference to
these circumstances contributed to Kwiatkowski’s sentence. Id., ¶86.

¶20 These minor clarifications do not lessen the predatory nature of
Kwiatkowski’s crimes. As the postconviction court explained, “Mr. Kwiatkowski
in his commission of these crimes ... [took] advantage of the location, the files. He
obtained their personal phone numbers by going into private files of the department
and contacting some of these people outside the job.” See State v. Alexander, 2015
WI 6, ¶¶30, 34-35, 360 Wis. 2d 292, 858 N.W.2d 662 (though our review is de novo,
we will consider the circuit court’s statements made in response to a postconviction
motion for resentencing). Kwiatkowski knew that his actions were not being
recorded and waited for the other officer to leave the room. K.I. felt trapped because

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she knew the door was locked. When she tried to fend Kwiatkowski off by
mentioning the possibility of the other officer’s return or a surveillance camera, he
told her that the officer would not return and they were not being recorded. As the
postconviction court stated, whether or not Kwiatkowski actually turned off a
camera, he committed “a significant and sufficient betrayal of the public trust given
to … an officer in charges of inmates ….”

¶21 Kwiatkowski argues that the circuit court’s misapprehensions that he
turned off a camera and asked Reinersman to leave the room must have led it to
conclude that the assault of K.I. was pre-planned. According to Kwiatkowski, it is
folly to conclude that any error was harmless because pre-planning “is far more
aggravated than spontaneously taking advantage of an opportunity presented to
commit that offense, as the evidence shows in fact happened here.”

¶22 We are not persuaded. While the degree of premeditation may be an
important fact in some cases, the sentencing and postconviction transcripts in these
matters contradict Kwiatkowski’s argument. For one thing, it is an overstatement
to characterize the assault of K.I. as “spontaneous” given that Kwiatkowski
surreptitiously obtained her cell phone number and texted her before the assault, and
considering his pattern of similar conduct with other female inmates. Additionally,
the circuit court was concerned with Kwiatkowski’s abuse of authority. What
matters is that Kwiatkowski violated K.I.’s privacy and took full advantage of being
alone with a vulnerable victim knowing that there was no surveillance camera to
capture his misconduct.

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The circuit court properly exercised its discretion in imposing Kwiatkowski’s
sentence.

¶23 Kwiatkowski maintains that he is entitled to resentencing because the
sentencing court erroneously exercised its discretion by (1) failing to provide a
rational explanation for why a near maximum initial confinement term was
necessary rather than some lesser term, and (2) failing to acknowledge and apply its
overriding obligation at sentencing to impose the least punishment consistent with
the purposes of the sentence imposed.

¶24 It is a well-settled principle of law that sentencing is committed to the
circuit court’s discretion. See Gallion, 270 Wis. 2d 535, ¶17. On review, we afford
the sentencing court a strong presumption of reasonability, and if discretion was
properly exercised, we follow “a consistent and strong policy against interference”
with its determination. Id., ¶18. We will sustain a sentencing court's reasonable
exercise of discretion even if this court or another judge might have reached a
different conclusion. State v. Odom, 2006 WI App 145, ¶8, 294 Wis. 2d 844, 720
N.W.2d 695.

¶25 In fashioning sentence, the circuit court must consider the gravity of
the offense, the character of the offender, and the need to protect the public. State
v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76. The weight to
be given to each factor is committed to the court’s sound discretion. Id.

¶26 Kwiatkowski acknowledges that the circuit court considered the
primary sentencing factors, discussed mitigating and aggravating circumstances,
and explained its determination that probation was not appropriate. Pointing out
that the PSI recommended two to three years of initial confinement, he complains

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that the court “did not further explain why a near maximum initial confinement term
twice that long, rather than some lesser but still significant prison term, was either
appropriate or necessary.” He makes the related argument that the sentencing court
failed to explicitly state why its sentence constituted “the minimum amount of
custody or confinement which is consistent with the protection of the public, the
gravity of the offense and the rehabilitative needs of the defendant” under McCleary
and Gallion.

¶27 We are not persuaded. “[T]he exercise of discretion does not lend
itself to mathematical precision.” Gallion, 270 Wis. 2d 535, ¶49. “The court must
provide an explanation for the general range of the sentence imposed, not for the
precise number of years chosen, and it need not explain why it did not impose a
lesser sentence.” State v. Davis, 2005 WI App 98, ¶26, 281 Wis. 2d 118, 698
N.W.2d 823 (citing Gallion, 270 Wis. 2d 535, ¶¶49–50, 54–55). “[W]e do not
expect circuit courts to explain, for instance, the difference between sentences of 15
and 17 years.” Gallion, 270 Wis. 2d 535, ¶49. See also State v. Taylor, 2006 WI
22, ¶30, 289 Wis. 2d 34, 710 N.W.2d 466 (a sentencing court is not required “to
provide an explanation for the precise number of years chosen”).

¶28 The circuit court properly exercised its sentencing discretion on the
record. It identified proper objectives, considered relevant factors, and imposed a
sentence well within the range authorized by law. It properly confirmed that
exercise of discretion at the postconviction hearing. Kwiatkowski has not shown
any “unreasonable or unjustified basis” for his sentence that would cause us to
question its propriety. See Taylor, 289 Wis. 2d 34, ¶18 (quoted source omitted).

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The circuit court properly denied Kwiatkowski’s postconviction motion
seeking to modify his sentence based on the existence of new factors.

¶29 As he argued postconviction, Kwiatkowski maintains that the
following constitute new factors entitling him to sentence modification:
(1) correction of the sentencing court’s misapprehensions that prior to assaulting
K.I., he turned off the camera and asked the second officer to leave the room;
(2) correction of the sentencing court’s misunderstanding of the nature of his
relationship with K.I.; and (3) clarification of his risk to sexually reoffend as
explained by the postconviction testimony of Westendorf.

¶30 A circuit court may modify a sentence based on the existence of a new
factor. State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. A new
factor is a set of facts highly relevant to the imposition of sentence but not known
to the judge at the time of the original sentencing, either because it was not then in
existence or because it was unknowingly overlooked by all the parties. Id., ¶40.
The defendant bears the burden of establishing the existence of a new factor by clear
and convincing evidence. Id., ¶36. Whether a new factor exists presents a question
of law that this court reviews independently. Id.

¶31 We conclude that none of the information asserted constitutes a new
factor. First, it was not “new.” At sentencing, Kwiatkowski knew that there was
no camera, that he did not ask Reinersman to leave, and the nature of his relationship
with K.I. His asserted corrections were not overlooked by all the parties. See State
v. Crockett, 2001 WI App 235, ¶14, 248 Wis. 2d 120, 635 N.W.2d 673. Second,
his postconviction corrections were not based on facts highly relevant to the circuit
court’s sentence. Highly relevant was Kwiatkowski’s abuse of authority and the
public trust, the violence of his assault on K.I., and the predatory nature of his

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actions. He waited for Reinersman to leave the room and, knowing that there was
no camera in the room, seized the opportunity by shoving K.I. up against the lockers
and jamming his fingers inside her vagina against her will. His predatory conduct
involved accessing personal information from the corrections files of three female
inmates, including K.I. This enabled him to call and text these inmates from a
blocked or secret cell phone number, and to cajole K.R.J. into an inappropriate
relationship while she was still on electronic monitoring.

¶32 With regard to Westendorf’s evaluation, the circuit court never said at
sentencing or postconviction that it rejected her opinions regarding Kwiatkowski’s
risk of recidivism or sexual deviance. Rather, the court did not give her analysis
much weight. This, too, was a proper exercise of discretion despite the “new”
information that Kwiatkowski claims bolsters Westendorf’s opinions.

By the Court.—Judgments and order affirmed.

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

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