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Sentence Modification: New Factor, Generally

State v. Jose A. Trujillo, 2005 WI 45, affirming summary order of court of appeals
For Trujillo: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding:

¶13 We define a new factor as “an event or development which frustrates the purpose of the original sentence,” Champion, 258 Wis. 2d 781, ¶4, and recognize it to be more than a change in circumstances since the time of sentencing. Crochiere, 273 Wis. 2d 57, ¶14. … As previously noted, to qualify for a sentence modification based on a new factor, the defendant must show: (1) a new factor exists; and (2) the new factor warrants modification of his sentence. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

¶14 Case law governing sentence modification based on a new factor is well settled. Champion, 258 Wis. 2d 781, ¶4. Wisconsin courts have reached the conclusion that many of the circumstances presented were not sufficient to establish a new factor. [9] See Crochiere, 273 Wis. 2d 57, ¶15. While there have been some cases where new factors have been identified, [10] there have been no cases involving TIS legislation where the reduction in penalties has been considered highly relevant to the imposition of sentence and, thus, a new factor.

The footnotes in this text aren’t reproduced here, just their links; what you’ll see is a dreary recitation of what have not, followed by a perversely illuminating list of what have been found to be a “new factor.” The former utterly dwarf the latter, which grandly total three in number; and of those lonely three examples, one is an instance of an increase in sentence, while the other two can equally be explained as accurate-information cases. That said, you must also throw into the mix State v. John Doe, 2005 WI App 68 (cooperation with law enforcement is a new factor), which, if it doesn’t turn out to be one-off, makes hazardous generalization about new-factor based argument.

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