On Point: 6. New factor

Brown v. Plata, USSC No. 09-1233, 5/23/11

Remedial injunction, issued by a federal court pursuant to the PLRA, ordering California to reduce its prison population on account of deficiencies in medical care caused by overcrowding, upheld.

Lengthy, 5-4 opinion (91 pp. pdf file) on something (“conditions of confinement”) outside the boundaries of SPD representation: why should you be interested? For one thing, as On Point readership surveys have demonstrated time and again over the years,

State v. Omer Ninham, 2011 WI 33, affirming, 2009 WI App 64; for Ninham: Frank M. Tuerkheimer, Bryan Stevenson; amici: Byron C. Lichstein, Robert R. Henak, G. Michael Halfenger, et al.; case activity

Sentencing – Life without Parole for Juveniles – Cruel and Unusual Punishment

Sentence of life without parole imposed on juvenile (Ninham was 14 when he committed the crime) upheld,

State v. Shantell T. Harbor, 2011 WI 28, affirming unpublished decision; for Harbor: Joseph E. Redding; case activity

Sentence Modification – New Factor

The “new factor” test for sentence modification has split into “two divergent lines of cases”: Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (fact(s) highly relevant to, but not brought out at, 

decision below: unpublished; for Harbor: Joseph E. Redding; court of appeals briefs: BiC; Resp.; Reply

Issues (from Table of Pending Cases):

Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

Whether a defendant demonstrated ineffective assistance of counsel under Strickland v.

State v. Michael J. Grabowski, No. 2009AP2118-CR, District I, 7/7/10

court of appeals decision (3-judge; not recommended for publication); for Grabowski: Jamie F. Wiemer; BiC; Resp.; Reply

Sentencing – Accurate Information

¶5        Grabowski argues that the circuit court sentenced him based on inaccurate information. A defendant claiming that a sentencing court relied on inaccurate information must show that: (1) the information was inaccurate;

court of appeals decision; pro se; Resp. Br.

Sentence Modification – DNA Surcharge

¶2        Singleton was sentenced on July 24, 2002, and the circuit court ordered, as a condition of his bifurcated sentence, that Singleton provide a DNA sample and pay the applicable surcharge.[1] Singleton’s sole challenge is made via a motion to modify his sentence under Wis. Stat. § 973.19 (2007-08), and is addressed only to the adequacy of the court’s explanation for imposition of the surcharge under Cherry,

State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se

Issue/Holding: DOC determination that an inmate isn’t eligible for CIP doesn’t constitute a new factor, notwithstanding the sentencing court’s determination that he is eligible.

¶11      Here, the trial court determined that Schladweiler was eligible for the CIP. … The sentencing court expressly indicated that participation in the CIP is a possibility to be ultimately determined by the department,

State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser

Issue/Holding: The governor’s 1994 letter exhorting bureaucratic opposition to (pre-TIS) parole for certain crimes was not a new factor, even though the sentencing court expressly took into consideration DOC data purporting to show the likely chance of parole:

¶11 We held in Delaney that the Thompson 1994 letter was not a “new factor” in part because: (1) there was no showing that the 1994 letter had any impact on Delaney’s discretionary parole eligibility; 

State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser

Issue/Holding:

¶5 A new factor, as defined in Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), is

a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing,

State v. Wayne Delaney, 2006 WI App 37
Pro se

Issue/Holding: Governor Thompson’s 1994 letter to the DOC exhorting pursuit of all available remedies to block release of (pre-TIS) violent offenders reaching their mandatory release date is not a new factor:

¶9        The existence of a new factor must be shown by clear and convincing evidence. Franklin, 148 Wis.  2d at 8-9.