On Point blog, page 1 of 1
Defense win: Post-sentencing vacatur of prior OWIs may constitute a new factor justifying sentence modification
State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR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.
Defendant waived right to appear in person; failed to show new factor for sentence modification
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.
In deciding whether to modify sentence based on a new factor, court may consider whether the new factor frustrates the purpose of the sentence
State v. Dustin M. Yanda, 2018AP412-CR, District 3, 6/18/19 (not recommended for publication); case activity (including briefs)
In State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828, the supreme court held that a defendant seeking a “new factor” sentence modification doesn’t need to prove that the new factor “frustrates the purpose” of the original sentence. However, Harbor doesn’t preclude the sentencing court from considering whether the purpose of the sentence is frustrated in deciding whether to modify a sentence once the court has concluded the defendant has proven a new factor.
Sentence Review: New Factor – Substantial Assistance to Law Enforcement
State v. Anthony C. Boyden, 2012 WI App 38 (recommended for publication); for Boyden: Rex Anderegg; case activity
Information provided by Boyden before his sentencing, which didn’t bear fruit until much later, supported a new factor-based request for sentence modification. State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, followed.
¶14 Boyden’s motion for sentence modification addresses in detail the factors set forth in Doe.