On Point: 6. New factor

State v. Tracy Laver Hailes, 2021AP1339-CR, 5/9/23, District 1, (recommended for publication); case activity (including briefs)

In a decision recommended for publication, the court of appeals holds that under §973.01(2)(c) a circuit court may apply either §939.62(1) (governing habitual criminality) or §961.48 (governing second or subsequent offenses) to enhance a penalty, but it may not apply both. While the circuit court erroneously applied both enhancers in this case, the court of appeals nevertheless denied Hailes’s claims for plea withdrawal, sentence modification, and resentencing.

State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR

The fact that some of Socha’s prior OWI offenses have been lawfully vacated since he was sentenced may constitute a new factor justifying sentence modification, so the circuit courts erred in denying Socha’s motions for sentence modification without a hearing.

State v. Amber C. Debree, 2022AP1311-CR, 02/08/23, District II (1-judge opinion, ineligible for publication); case activity (including briefs)

Debree’s disorderly conduct conviction stemmed from a physical altercation she had with her husband immediately after Debree learned he had impregnated her adult daughter. The sentencing court placed Debree on probation for two years after it questioned whether Debree was “truly accepting responsibility for her actions” and expressed concern about her criminal record. In response to the concerns about her criminal record, Debree moved the court to modify her sentence based on her history of being abused by her husband, which provided additional context to her actions in this case and some explanation for her criminal record. Ultimately, the court of appeals affirms the circuit court’s denial of her new factor claim because Debree could not show that her claimed new factor was “unknowingly overlooked by all of the parties.” (Opinion, ¶8).

State v. Leroy Rice, Jr., 2022AP244-CR, 9/14/22, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rice sought resentencing based on an inadequate waiver of his right to be physically present at his sentencing per §971.04(1)(g) and based on a new factor: the circuit court overlooked his substance abuse needs at the time of sentencing and thus failed to make him eligible for substance abuse programming (SAP). Successful completion of SAP would entitle him to early release.  The court of appeals rejected both arguments.

State v. Jonathan L. Liebzeit, 2021AP9-CR, District 3, 8/30/22 (not recommended for publication); case activity (including briefs)

In 1997, a circuit judge sentenced Liebzeit to life without the possibility of parole for a homicide he committed at the age of 19. In 2019, after hearing a presentation at a judicial education seminar about juvenile brain development and shortly thereafter sentencing an 18-year-old for a crime, the judge decided to to contact Liebzeit’s lawyer to suggest a sentence modification may be appropriate based on the new factor of the brain development research. After defense counsel filed a sentence modification motion the court modified Liebzeit’s sentence to make him eligible for paroled after 25 years based on two new factors: 1) new scientific understanding of brain maturity in adolescents; and 2) Liebzeit’s brain damage from his inhalant use. (¶¶4-22). The court of appeals holds the circuit court erred because Liebzeit didn’t prove either new factor.

State v. Jimmie L. Blount, 2021AP1943-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

At one sentencing hearing on two different cases, the circuit court imposed on one case a 4-year bifurcated prison sentence—2 years’ confinement and 2 years’ extended supervision—and on the other ordered 3 years of probation. The court said the probation would be concurrent to the ES on the first case, which would’ve added another year onto the “global” disposition of 5 years. Both lawyers pointed out the probation has to be either concurrent with or consecutive to the total bifurcated sentence, so the judge ordered the probation to be consecutive, thus increasing the “global” disposition to 7 years. The judge’s need to correct its initial error didn’t amount to a new factor justifying sentence modification.

State v. Rebecca Sue Ferraro, 2021AP1654-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Ferraro pled to and was sentenced for OWI, third offense, before the blood alcohol test result of her blood draw was available. At sentencing the preliminary breath test result was bandied about as one of the aggravating factors. A few days after sentencing, the BAC result arrived. Turns out it was lower than the PBT. That is not a new sentencing factor because it’s not highly relevant to the sentence imposed; and even if it was, the circuit court properly concluded it didn’t merit sentence modification.

State v. Michael Lee Muehl, 2021AP1755-CR & 2021AP1758-CR, District 4, 3/31/21 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court sentenced Muehl to prison and made him eligible for the earned release programs. Turns out Muehl was ineligible for those programs, so he filed a motion to modify his sentence on the grounds that his ineligibility was a “new factor”—that is, a fact highly relevant to the imposition of sentence that was not known to the judge at the time of sentencing because it wasn’t in existence or was unknowingly overlooked. State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. (¶¶2-10). Although a defendant’s ineligibility for earned release programming   might be a new factor in some cases, it isn’t here because Muehl hasn’t established his ineligibility was “highly relevant” to the sentencing decision.

State v. Dallas R. Christel, 2020AP1127-1128-Cr, 12/8/21, District 2 (not recommended for publication); case activity (including briefs)

Christel argued that §940.235, which criminalizes strangulation and suffocation, (1) violates substantive due process on its face and as applied to him, (2) is overbroad, and (3) is void for vagueness. He also argued for a new-factor-based sentence modification on his bail-jumping convictions. The court of appeals torpedoed every claim.

State v. Thomas M. Parkman, 2021AP27, 9/16/21, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

In February 2020, a few weeks before the COVID-19 pandemic really got going in Wisconsin, the circuit court sentenced Parkman to six months in jail for three misdemeanors stemming from an incident in which he attacked his ex-girlfriend with pepper spray. He was given an April report date, but the circuit court sua sponte delayed that date in recognition of the dangers posed to jail inmates by COVID. It has been delayed ever since. This is an appeal of the circuit court’s denial of Parkman’s motion to modify his sentence to probation with an imposed-and-stayed jail sentence: that is, he was asking the court to permanently stay the jail (so long as his probation was not revoked).