On Point: 6. New factor

State v. Dimitri C. Boone, 2016AP918-CR, District 1, 6/27/17 (not recommended for publication); case activity (including briefs)

Boone sought a “new factor” sentence modification based on alleged inaccuracies in the report of the presentence investigation (PSI). The court of appeals holds that Boone failed to show the information in the PSI was inaccurate, failed to show new information, or failed to show any of the information was highly relevant to the circuit court’s sentencing decision.

State v. Diamond J. Arberry, 2016AP866-CR, 6/16/17, granting a petition for review of a published court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. When a defendant is eligible for expungement under § 973.015 but expungement is not addressed the sentencing hearing, can the defendant raise the issue in a postconviction motion? If so, is a “new factor” motion the appropriate vehicle for bringing such a claim?

2. Did the circuit court err in its exercise of discretion when it denied Arberry expungement based on reasons that could apply in any case?

State v. Diamond J. Arberry, 2017 WI App 26, petition for review granted 6/16/17, affirmed, 2018 WI 7 ; case activity (including briefs)

Because a circuit court must decide whether to grant expungement under § 973.015 “at the sentencing proceeding,” State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811, the court doesn’t have authority to consider expungement when it asked to do so in a defendant’s postconviction motion.

State v. Antonio D. Barbeau, 2016 WI App 51; case activity (including briefs)

Barbeau killed his great-grandmother when he was 14 years old, and eventually pled no contest to first-degree intentional homicide, which carries an automatic life sentence. When imposing such a sentence, the court must make a decision as to extended supervision: it can either deny any possibility of ES, or it can set a date at which the person becomes eligible, though such date must occur after the person has served at least 20 years. Wis. Stat. § 973.014(1g).

State v. Stephen Toliver, 2014AP2939-CR, 12/15/15, District 1 (not recommended for publication);case activity

Here, in Wisconsin’s very own Jarndyce v. Jarndyce, the court of appeals upholds the denial of Toliver’s motion to withdraw his guilty plea, the circuit court’s refusal to vacate his felony murder plea, and the circuit court’s denial of his ineffective assistance of counsel claim.

State v. Courtney E. Sobonya, 2015 WI App 86; case activity (including briefs)

Sobonya launched a creative challenge to the denial of her §973.015 request for expungement.  The court had held that while she would benefit from expungement, society would be harmed by the reduced deterrent effect of her sentence.  So Sobonya moved for sentence modification based on an expert report showing that the public safety is best served by removing the barriers that convicted offenders face when trying to reintegrate into society.

State v. Jordan John Samsa, 2015 WI App 6; case activity

The circuit court did not erroneously exercise its discretion in using the criminogenic needs section of the COMPAS assessment report, which identifies areas in which the offender needs correctional or community intervention, as an indicator of Samsa’s danger to the community.

State v. Anthony Herman Williams, 2014AP447-CR & 2014AP448-CR, District 1, 9/30/14 (not recommended for publication); case activity: 2014AP447-CR; 2014AP448-CR

Cell phone records that corroborate a claim Williams’s trial lawyer made at sentencing regarding contact between Williams and the victims don’t show that the sentencing court relied on inaccurate information because the records do little to corroborate the contact or support Williams’s version of events.

State v. Paul J. Williquette, 2013AP2127-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

What happens when a restitution award is twice the victim’s actual repair costs? In this case, not much. Williquette was ordered to pay restitution based upon State-submitted repair estimates.  Later, he moved for sentence modification claiming the actual (and lesser) amount the victim paid for repairs was a “new factor” justifying a reduced restitution award.  The COA held that by not challenging the estimates at sentencing, Williquette stipulated to their reasonableness and that the actual repair costs did not amount to a “new factor.”

State v. Dennis R. Armstrong, 2014 WI App 59; case activity

The fact that Armstrong was entitled to eight months rather than approximately two years of sentence credit is a “new factor” because the information was unknowingly overlooked at sentencing and the amount of sentence credit was highly relevant to the circuit court’s imposition of the sentence:

¶13      At the sentencing hearing,