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COA holds defendant didn’t show COVID-related new factor

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).

The court of appeals affirms the circuit court’s denial. Parkman produced a brief letter saying that he has rheumatoid arthritis and is taking an immunosuppressant medication that condition. (¶10). The court of appeals questions whether he’s shown he’s particularly vulnerable to COVID. (¶15). But more importantly, the court says, what he’s asking for is not to delay his sentence, but to eliminate it altogether:

Even assuming, however, that Parkman has a higher risk of COVID-19 complications, Parkman has not demonstrated that the combined circumstances of his health status and the COVID-19 pandemic would have been “highly relevant” to the imposition of his sentence. It is important to note that Parkman does not seek another stay of the execution of his jail sentence—in fact, the State does not oppose postponing Parkman’s jail report date “if necessary[,] until this pandemic subsides.” Parkman, rather, seeks sentence modification—from six months’ incarceration to probation with a stayed jail sentence. The question, then, is whether the COVID-19 pandemic and its particular risks to Parkman would have been “highly relevant” to the decision to sentence Parkman to any term of incarceration, to be served at some indeterminate point in the future.

(¶16).

Given this framing, the court of appeals concludes that COVID-19 is not highly relevant to the jail/no jail decision Parkman seeks to modify. It points to the circuit court’s reasons for imposing jail–the violence of his act, his record, and the threat such conduct poses to the public–and says there’s no reason to think the pandemic would have had much effect on the court’s thinking. (¶¶17-20).

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