January 15, 2020 at 4:21 p.m.
Merrill man draws year in jail, probation on ICAC charges
Merrill man draws year in jail, probation on ICAC charges
Robert J. Ney was charged last April with use of a computer to facilitate a child sex crime and attempted second degree sexual assault of a child after he was apprehended at the location in Rhinelander where he had agreed to meet a person he had been chatting with on the internet. The "girl" turned out to be a special agent with the Wisconsin Department of Justice.
According to the criminal complaint, Ney sent explicit messages to the "girl" expressing interest in engaging in specific sexual acts. During the conversation, which took place through a dating app and text messages, the "girl" repeatedly told Ney "she" was 15.
In June, Ney waived his right to a preliminary hearing and entered not guilty pleas to both charges. In August, following a pretrial conference, Judge Michael Bloom set the case for trial in November.
However, in October, Ney's attorney Gary Cirilli and district attorney Michael Schiek announced an agreement had been reached. Under the terms of the agreement, Ney pled guilty to both charges, but a deferred entry of judgement (DEJ) was entered on the use of a computer to facilitate a child sex crime charge and a pre-sentence investigation was requested.
At sentencing Friday, Schiek explained that his office has prosecuted a number of ICAC cases in the last year.
"Based on the initiative and grants that had been provided to local law enforcement agencies to attempt to understand these types of crimes and the resources it takes to send law enforcement officers to special training, a lot was learned over the last year," Schiek said.
He said his office has treated each of the resulting cases "basically the same."
"Some have been unique, and so we have handled some of them differently," Schiek said.
Another factor Schiek mentioned is that there is a five-year mandatory minimum prison sentence with the charge of use of a computer to facilitate a child sex crime, which has led to most of the cases being resolved with a plea agreement that includes a DEJ for that charge. He added one of the cases did go to trial and resulted in a conviction.
"But it doesn't give the court much discretion, and we were feeling that the court should be able to review the cases individually because there are different facts in each case," Schiek said.
He said in each case his office had a "15-year cap" on the sentence to be recommended to the judge, and in Ney's case he recommended three years in prison and 12 years extended supervision. This differed from the recommendation of the author of the PSI report, who called for six months in jail and seven years probation. Schiek made the recommendation despite there not being an actual child victim in the case.
"What I have learned over the last 12 months and going to trainings and our annual conferences down in Madison is that in situations like this, it's not really the first time that someone has put themselves out like Mr. Ney has," Schiek said. "The documentation and proof coming in is that the more we learn about these cases, the more we learn from the individuals - the defendants - is that this really wasn't the first time this has happened."
He said that means there may be real victims for many of the defendants, and these prosecutions send a message to those individuals who are using the internet to prey on young children.
"This is the purpose of this is to protect those other children from something like this happening," Schiek said.
He added that the texts and emails showed that Ney was planning on having sexual contact with a "girl" who repeatedly said she was 15 years old.
Schiek conceded that Ney suffered a brain injury in an automobile accident many years ago, but argued that didn't mitigate the fact that he knew what he was attempting to do was wrong.
For his part, Cirilli argued Ney is not just another defendant looking to have illicit sexual contact with a teenager.
"There is nobody similarly situated to Robert Ney" due to his brain injury, Cirilli said, adding that author of the PSI report noted that Ney "struggled with his mental capacity."
"He had a portion of his brain removed," Cirilli said. "From day one in talking to the state about this case, I told him I'm not sure he has the mental capacity to do this crime. He never had criminal intent. Now is he incompetent? He is not."
Cirilli said Ney has no prior criminal record and has a very low chance of recidivism. He also said his client immediately started counseling to help him understand how wrong his actions truly were.
"He's got some mental and intellectual deficiencies," Cirilli repeated. "And I think the pre-sentence author took that into consideration when he made the recommendation for seven years probation and six months in jail. That's a lot of punishment for anybody, but particularly him because I just don't think he has that criminal element."
Cirilli said he is glad that Schiek allowed Ney to plead to a charge that gives Bloom some discretion as to what type of sentence to hand down.
When given a chance to speak on his own behalf. Ney read from a prepared statement.
He started by apologizing for his actions and stressing that he knows now that "they were wrong" and that he will never do this again.
"My life has changed because of this," Ney told Bloom. "I respect people now, and now when I talk to people with respect."
He said he has learned a lot about how people view him because of the charges and because of his disability due to his brain injury.
"Another way my life has changed is people at work are now calling me names, and at first, it didn't bother me," Ney said. "But now, as time goes on, it hurts to be called a pedophile because I know I didn't touch anybody, and I wasn't at all in the park or playground looking for trouble like what was said on the news. Because of this, I'm no longer trusted."
Bloom said one aspect of this case that has become prevalent in modern society is the "pervasion of social media and the Internet in the daily lives of so many people."
"You have people that are willing to do things when they're sitting in front of a computer, and then you have things people are willing to do in what I will call the real world," Bloom said. "In some cases, there's no distinction, depending on the person. In many cases, there's a big distinction. And the legislature has determined that when a person does a defined set of things on a computer, it constitutes a criminal offense and has prescribed a mandatory minimum of five years."
Under state statute, attempted sexual assault of a child requires an act, which Ney did when he traveled from Merrill to where he was supposed to meet the "girl", the judge noted.
The judge then reviewed the various factors he is required to take into account when coming to a sentencing decision. While the majority were in Ney's favor, the gravity of the offense swung the scale in the other direction.
"It really comes down to this, because there needs to be punishment in the form of incarceration imposed in this case," Bloom said. "If there was not incarceration utilized as part of the sentence in this case, it would unduly depreciate the seriousness of the offense. And there is a compelling argument that six months in jail would not rise to the level of punishment appropriate in this case."
Jamie Taylor may be reached via email at jamie@rivernews online.com.
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