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Modification — New Factor — TIS-II, Change in Offense Classification and Penalty Structure

State v. Jonathan R. Torres, 2003 WI App 199, PFR filed 9/18/03
For Torres: Michael Yovovich, SPD, Madison Appellate

Issue: Whether reclassification of Torres’ offense by TIS-II, 2001 Wis. Act 109 §§545-559, which substantially reduced the maximum penalty, amounts to a new factor that would support reduction of his sentence imposed under the prior, TIS-I regime.

Holding:

¶7 First, we conclude that a change in the classification of a crime, which would result in a shorter sentence if the defendant were convicted under the new classification, is not a “new factor” under our traditional model for sentence modification. This is because as part of 2001 Wis. Act 109, the law created WIS. STAT. § 973.195, which provides the procedure for judicial review of a sentence when the law relating to sentencing changes.…

¶9 WISCONSIN STAT. § 973.195 reflects the legislature’s intent to create a separate and specific statutory procedure for requesting a sentence reduction that should be used in place of WIS. STAT. § 809.30 (2000-01) whenever “a change in law or procedure related to sentencing … effective after the inmate was sentenced that would have resulted in a shorter term of a confinement” is the basis for the modification.2 WIS. STAT. § 973.195(1r)(b)(3). Torres’ October 2002 filing of a § 809.30 motion based on the pending February 2003 change cannot be used to defeat the purpose of § 973.195. If Torres wanted to avail himself of the 2003 sentence change as a basis for his sentence change, he was required to follow the § 973.195 procedure, which he could not do until February 1.

¶11 Second, in Hegwood, the supreme court concluded that a reduction in the maximum penalty does not constitute a new factor and is therefore not a proper basis for modifying a sentence. Hegwood, 113 Wis. 2d at 548.

¶12 … Torres is in the same situation as Hegwood—there is no mandatory retroactive application of the lower penalty—so the Hegwood rule applies and the change in penalty is not a new factor.


2 The motion in this case also alleges the trial court erroneously believed at sentencing that Torres was in a gang, although that issue is not before us. However, we note that where there are other grounds for requesting modification, or where there are other new factors separate from the WIS. STAT. § 973.195 grounds, a defendant is not precluded from filing a WIS. STAT. § 809.30 motion in addition to a § 973.195 petition. The grounds upon which a § 973.195 petition is based are specific and limited.

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