Lee Gustafson entered no contest pleas to one count of repeated sexual assault of a child and one count of second-degree sexual assault of another child. The court imposed concurrent sentences totaling four years’ initial confinement and five years’ extended supervision. Instead, citing new factors, he requested a reduced sentence of two years, six months’ initial confinement and six years, six months’ extended supervision. The circuit court denied the motion without a hearing and denied Gustafson’s motion for reconsideration. Gustafson appealled, contending that the sentencing court erred by not considering his diagnosis of gender identity disorder as a factor that would apparently justify a reduced sentence.
The appellate court rejected his arguments, finding that the lower court appropriately considered the seriousness of the offenses, Gustafson’s character and the need to protect the public. The court noted that Gustafson took advantage of the young victims placed in his trust, and it appropriately imposed a sentence to deter him from victimizing other children. The court concluded it would unduly depreciate the seriousness of the offenses to place Gustafson on probation. Gustafson notes his lack of a prior record, his admission to the crimes, the steps he took to change his behavior before involvement of the legal system and his age at the time the offenses occurred. All of these mitigating factors explain Gustafson’s relatively lenient sentence. The court could have imposed consecutive prison terms totaling 100 years’ imprisonment. Gustafson asserts intensive treatment provided only in a prison setting is not necessary and the court placed too much weight on the seriousness of the offense and the need to protect the public. The weight to be given these factors is solely within the sentencing court’s discretion.
Gustafson’s postconviction diagnosis of gender identity disorder is not a new factor. A new factor is a fact highly relevant to the imposition of sentence, but not known to the trial judge at the time of sentencing, either because it was not then in existence or because it was unknowingly overlooked by all of the parties. Gustafson’s gender identity issues were facts in existence at the time of sentencing and were addressed in the presentence investigation report. Gustafson was also personally aware of these issues. Therefore, the gender identity disorder was not overlooked by the sentencing court and was not unknowingly overlooked by all of the parties. Gustafson’s motion does not identify anything about a formal diagnosis occurring after sentencing that would be more meaningful to the imposition of sentence than the information already provided at the time of sentencing. The sentencing court did not consider Gustafson’s gender identity issues to be either an aggravating or mitigating factor. The disorder, whether formally diagnosed or not, was not highly relevant to the sentences imposed.