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Sentence Modification — New Factor — Post-Sentencing Revocation — Linkage to Intended Drug Treatment

State v. Steve Norton, 2001 WI App 245
For Norton: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether an unanticipated, post-sentencing revocation amounted to a new factor justifying modification of sentence.

Holding:

¶10. Although we agree with the State that, in general, revocation of probation in another case does not ordinarily present a new factor, the specific facts involved in this case require an exception to the general rule.

¶13. The question here is whether such circumstances present a new factor and, if so, whether sentence modification is warranted. We conclude that the circumstances do constitute a new factor and resentencing is required because the inaccurate information relied on by the trial court frustrates the purpose of the sentence. A new factor is a set of facts highly relevant to sentencing, but not known, or not in existence, at the time of sentencing. The probation and whether it was going to be revoked was highly relevant to sentencing. The trial court focused on imposing a sufficiently long sentence to permit Norton to “dry out” and become “drug free.” The trial court was advised that Norton’s probation was not going to be revoked as a result of the felony theft committed in the instant case. The prosecutor expressed disappointment that the probation would not be revoked, and the trial court inquired as to why the probation was not being revoked. After discussing the probation and understanding that the nine-month sentence would not have any impact on the instant case, the trial court proceeded to impose its sentence. The trial court believed that the nine-month stayed sentence from the misdemeanor conviction would not be an issue.

¶14. In a case where a defendant commits a new crime while on probation, whether or not the defendant will be exposed to the sentence underlying the probation is significant. A criminal sentence should represent the minimum amount of custody consistent with the factors of the gravity of the offense, the character of the offender, and the need to protect the public. State v. Setagord, 211 Wis. 2d 397, 416, 565 N.W.2d 506 (1997). It was not known to the trial court at the time of sentencing in this case that Norton’s probation would be revoked; rather, the trial court was advised by Hubbard that probation was not going to be revoked. Thus, the trial court imposed a sentence in this case which was based on inaccurate information.

¶15. Moreover, the inaccurate information was directly linked to the purpose of the sentence. As noted, the State recommended thirty months in prison, indicating that this would be sufficient to ‘dry Norton out.’ Both defense counsel and Hubbard recommended at least twenty-four months in prison so that Norton would become drug-free. The trial court, referencing Norton’s need for drug treatment, imposed a forty-two month sentence.

¶16. Norton has a right to be sentenced on accurate information. State v. Slagoski, 2001 WI App 112, ¶7, 244 Wis. 2d 49, 629 N.W.2d 50. Under the circumstances here, Norton’s sentence was based, in part, on inaccurate information from an ordinarily reliable source — a probation agent. Accordingly, we must reverse and remand for resentencing to permit the trial court an opportunity to review the sentence with the benefit of the new information; i.e., that Norton must now serve the nine-month sentence on the misdemeanor theft.

 

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