COURT OF APPEALS
DECISION
DATED AND FILED
December 7, 2010
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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State of Wisconsin,
Plaintiff-Respondent,
v.
Alejandro Hernandez Martinez,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Outagamie County: HAROLD
V. FROEHLICH, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Alejandro Martinez, pro se,
appeals from a judgment of conviction for sexual assault of a twelve-year-old
child, and an order denying his motion for sentence modification. Martinez argues
“in Mexico
older men as a custom date and have sex with underage girls routinely.” Martinez
insists this alleged cultural custom constitutes a “new factor” entitling him
to sentence reduction. In the
alternative, Martinez
argues his trial counsel was ineffective for failing to raise the issue at
sentencing. He also claims the court
inadequately explained the reasons for selecting the particular sentence
imposed. We reject Martinez’s arguments and affirm.
¶2 Martinez
is not entitled to sentence reduction on the basis of a new factor. Whatever else may be said about his argument that
it is the cultural norm for older men to have sexual relations with children in
Mexico, Martinez misrepresents the record. Trial counsel raised the cultural argument at
sentencing, and the circuit court considered and rejected the argument as a
mitigating circumstance. Martinez’s premise is therefore
erroneous; the cultural argument is not a new factor. See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).
¶3 The court also adequately explained Martinez’s sentence of eight years’ initial
incarceration and eight years’ extended supervision. The court’s sentence was based upon proper
factors, including Martinez’s
character, the severity of the offense and the need to protect the public. See State v. Gallion, 2004 WI 42, ¶23,
270 Wis. 2d
535, 678 N.W.2d 197. Although positive
aspects of Martinez’s character were noted, the
court was incredulous that Martinez
would believe it was acceptable for a thirty-two-year-old man to have sexual
intercourse with a twelve-year-old girl.
The court also found “outrageous” Martinez’s
excuse that the girl invited him to have sex.
The court appropriately concluded that anything less than the sentence
imposed would depreciate the seriousness of the crime and the need to protect
the public. The court adequately
explained the sentence it imposed.
¶4 We need not address the State’s alternative argument that even
if we determined the court’s sentencing remarks were inadequate under Gallion,
the record independently supports the sentence.
If we were to reach the issue, we would agree with the State’s analysis
and we would adopt the argument in its brief as if set forth herein.
By the Court.—Judgment and order
affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.