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Sentence – Modification – New Factor: Parole Policy

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; [2] (2) the letter was not to the Parole Commission, but to the DOC Secretary who has no control over the Commission; [3] (3) the letter urged more aggressive conduct, but did not change existing law; [4] and (4) the letter did not mention parole, but referred only to mandatory release. [5] Thompson’s 1994 letter to the DOC Secretary is not a “new factor” justify ing sentence modification. Delaney, 289 Wis. 2d 714, ¶¶16-18.

¶12 Although unlike in Delaney, the trial court which sentenced Wood specifically considered when he would “likely” be paroled, nothing in the court’s sentencing explanation was a promise that he actually would be paroled at that date. Indeed, because an inmate’s behavior in prison has an impact on actually being granted parole, the trial court could not have ordered his release at a specific time.

Yet again, we are instructed as to what is not a new factor. In Delaney, the court of appeals stressed that the sentencing judge “neither expressly relied on nor discussed parole policy,” 2006 WI App 37, ¶12. But Wood’s judge did rely on assumed likelihood of parole release. That seemingly critical distinction turns out however to be meaningless.

 

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