On Point: 6. New factor

State v. David J. Lawrence, 2013AP796, District 4, 10/10/13; court of appeals decision (1-judge, ineligible for publication); case activity

The circuit court knew of Lawrence’s mental health diagnoses at sentencing, but after sentencing Lawrence was hospitalized after a psychological breakdown. (¶¶3-4). He requested sentence modification, arguing the court was not aware of all his diagnoses or his medication regimen. (¶5). Assuming that information was a “new factor,” the circuit court gave a reasoned explanation for why it declined to modify the sentence,

State v. Stephen Lehman, 2011AP2821-CR, District I (not recommended for publication).   Case activity.

Lehman pled guilty to 2 counts of burglary of a dwelling.  The trial court sentenced him to 5 years of initial confinement and 3 years of extended supervision for each count.  The court ran the sentences consecutively, ordered Lehman to pay $1,700 in restitution, and declared him ineligible for the Challenge Incarceration and Earned Release programs.  

State v. Richard Wade Shirley, 2012AP263-CR, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity

Denial of fair trial – restraint of defendant during trial

Defendant forfeited claim that he was deprived of a fair trial because at least one juror saw he was shackled in the court room: “Not only does the record show that Shirley failed to strike the one juror that the record demonstrates saw the restraints,

State v. John Doe, 2012AP414-CR, District 1, 1/23/13; court of appeals decision (not recommended for publication); case activity

The circuit court properly exercised its discretion in denying the defendant’s motion for sentence modification based on his assistance to law enforcement. The circuit court considered the factors established by State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, for determining when post-sentencing assistance to law enforcement is a new factor,

State v. Allen Dell Vaughn, 2012 WI App 129 (recommended for publication); case activity

Waiver / Forfeiture of Right, Generally 

Waiver is the intentional relinquishment or abandonment of a known right or privilege; forfeiture is:  (1) the failure to object to something without intending to relinquish that which an objection might have preserved and (2) doing something incompatible with the assertion of a right, ¶21, citing State v.

State v. Lavon J. Ash, Sr., 2012AP381-CR, District 2, 8/15/12

court of appeals decision (1-judge, ineligible for publication); case activity

Ash was sentenced to concurrent terms of one-year initial confinement, one-year extended supervision on two misdemeanor counts, a sentence structure he successfully challenges. Incompatible statutory mandates lie at the heart of the problem. In the first instance, § 973.01(1)  requires bifurcated misdemeanor sentences, which simply isn’t possible for unenhanced misdemeanors: a bifurcated sentence must be served in prison,

State v. Michael D. Carroll, 2012 WI App 83 (recommended for publication); case activity

Repeal of ability to earn “positive adjustment time” wasn’t highly relevant to Carroll’s sentence, therefore didn’t constitute a new factor that could support sentence modification.

¶9        Because 2011 Wis. Act 38 did not become effective until more than a year after Carroll’s sentencing hearing, it is obvious that the sentencing judge could not have known about the repeal at the time of sentencing.  

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.  

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

Sentencing Review – New Factor – Assistance to Law Enforcement 

McDermott, convicted in 1991 of first-degree intentional homicide, ptac with a parole eligibility date of 35 years, seeks new-factor-based modification of his PED on the ground “he helped law enforcement by participating in prison programs designed to dissuade youth from crime.”

State v. Altonio Laroy Chaney, 2011AP207-CR, District 1, 10/25/11

court of appeals decision (not recommended for publication); for Chaney: Angela Conrad Kachelski; case activity; prior appeal: 2008AP395-CR

Chaney’s argument that an eyewitness had recanted his version of having seen Chaney sexually assault the victim didn’t satisfy the new factor test for sentence modification: the sentencing court didn’t focus on the claim that Chaney,