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Sentence Modification — New Factor — TIS-I: Elimination of Parole

State v. James D. Crochiere, 2004 WI 78, affirming unpublished opinion
For Crochiere: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether post-sentencing events such as rehabilitation which would not be considered “new factors” supporting reduction of indeterminate sentence may be regarded as new factors under the determinate regime of TIS-I.

Holding:

¶9. Crochiere bases his argument for sentence reduction, in part, on this shift away from the executive branch’s participation due to the legislature’s elimination of parole. He contends that this change brought about through TIS-I requires courts to examine rehabilitative progress and to conclude that since there is no longer any other way to review it, rehabilitation must become a new factor upon which a circuit court may base sentence modification. …

¶17. Crochiere claims he has shown a new factor by his rehabilitation and the court’s lack of knowledge of his child support obligation. …

¶20. Crochiere contends that we should reject the reasoning in Champion because Champion was grounded solely on the inmate’s rehabilitation during incarceration. While by comparison, Crochiere also has a child support obligation, which was not known to the circuit court at sentencing and is linked to his rehabilitation….

¶21. The circuit court held a hearing to permit Crochiere to develop all the facts relevant to his child support obligation. The court then reviewed the factors on which it based Crochiere’s sentence and concluded that its lack of knowledge that Crochiere had a son to help support would not have affected the sentence it imposed. … Therefore, even though the circuit court initially was unaware of Crochiere’s obligation to support his son, that fact was not one that frustrated the purpose of the sentence imposed.

¶22. Additionally, Crochiere’s rehabilitation is not a circumstance that frustrates the purpose of the sentence. … The court was of the opinion that Crochiere was a danger to the community. Deterrence and punishment were the major factors upon which the court focused. And, as has been noted, rehabilitation while incarcerated is not a circumstance that will frustrate the purpose of a sentence, Champion, 258 Wis. 2d 781, 13, as we conclude it is likely that circuit courts sentence with the hope that rehabilitation will occur.

¶23. Furthermore, Crochiere’s early release would undercut the seriousness of the offense, the court’s concern about the victim’s injuries and its efforts at protecting the public. And, as Champion pointed out when interpreting TIS-I, the legislature intended that conduct subsequent to incarceration would not reduce an inmate’s sentence.13 …

¶24. And finally, a decision on whether to modify a sentence is within the circuit court’s discretion. …

¶25. Here, when the circuit court became aware of Crochiere’s child support obligation, it held a hearing to take additional testimony to determine whether that fact would have caused it to select a sentence different from that which it imposed and concluded it would not. It also concluded that Crochiere’s rehabilitation was insufficient to constitute a new factor. In so doing, the circuit court correctly identified and applied the law. Accordingly, we conclude that the circuit court appropriately exercised its discretion in refusing to modify Crochiere’s sentence.14

The court somewhat coyly acknowledges that “new factor analysis has been applied to a multitude of factual circumstances, with appellate courts often reaching the conclusion that the facts presented were insufficient to establish a new factor,” ¶15. Often? Only if that’s a synonym for always. The court’s examples of viable new factors, ¶16, is revealing: Sepulveda found a new factor that supported an increase in sentence; Stafford may have found a new factor in a formal sense, but is better understood as involving a different theory (accuracy of informational inputs); and Norton too is premised on the right to be sentenced on the basis of accurate information, 2001 WI App 245, ¶¶11-16 – at worst, Norton just might be singular, an anomaly (an “outlier,” to use a voguish term). That said, the court of appeals subsequently found a new factor, in State v. Tony G. Longmire, 2004 WI App 90, ¶¶42-46: where the length of extended supervision was premised on a hefty restitution order and that order was reduced on appeal, the trial court should be given the opportunity to revisit the question of the length of extended supervision. But it’s hard to see why this result could not also be based on the idea that the term of supervision became premised on inaccurate information, namely the amount of restitution.

UPDATE: A federal case discussing the distinction between a sentence which is based on inaccurate information and one whose intent has somehow been thwarted helps explain problems with the Wisconsin approach, U.S. v. Eakman, 3rd Cir. No. 03-1835, 7/12/04. There, the sentencing judge relied on a mistaken understanding that the prison authority could place Eakman in a half-way house; not that it would happen, only that it could. On habeas review, the government argued that frustration of the judge’s expectations wasn’t enough to show error of constitutional magnitude (something that is necessary for entertaining the collateral attack). The leading case is U.S. v. Addonizio, 442 U.S. 178 (1979), which says that a change in parole policy didn’t invalidate the sentence, even though it thwarted the judge’s sentencing expectation. In other words, constitutional sentencing error has to be “objectively ascertainable,” and can’t rest on the frustration of subjective intent of the sentencing judge. But Eakman’s instance was critically distinguishable: “Unlike Addonizio, Eakman does not challenge his sentence on the basis that the district judge made a bad predictive judgment about how his sentence would be executed – he rather argues that the court misunderstood the law.” Back to Wisconsin: thwarting, or frustrating, the judge’s sentencing intent is sufficient to raise an out-of-time sentencing challenge, albeit under a “new factor” rubric. In the federal system, constitutional error is required for a non-direct-appeal attack; in Wisconsin it isn’t. And yet, Wisconsin case law seems in practice to have merged the doctrines, virtually from the dawn of the new factor test. Thus, in a situation very similar to Eakman’s, the Wisconsin supreme court authorized sentence modification on new factor grounds, when due process / inaccurate basis might have been closer to the mark: Kutchera v. State, 69 Wis.2d 534, 230 N.W.2d 750 (1975) (misinformation re: parole eligibility — a misunderstanding of applicable law, as the Eakman court would have put it, and not merely “a bad predictive judgment about how his sentence would be executed”). Initially, the definition of a “new factor” was left vague, its only purpose being to ensure that a sentence wasn’t reduced on “mere reflection.” State v. Foellmi, 57 Wis.2d 572, 582, 205 N.W.2d 144 (1973). At some point along the way, the test morphed into the rigid, formidable, thwarted-intent obstacle. And even at that, an Addonizio-type argument (frustration of sentencing judge’s intent with respect to likelihood of parole) would not support a new factor basis for sentence modification, see State v. Franklin, 148 Wis.2d 1, 434 N.W.2d 609 (1989). The long and short of it is that few if any new factor arguments could not also be cast as due process / inaccurate information arguments. The latter test is more forgiving (e.g., State v. Jeffrey R. Groth, 2002 WI App 299, ¶22: “A defendant who asks for resentencing because the court relied on inaccurate information must show both that the information was inaccurate and that the court relied on it”; and Eakman: sentencing judge (1) “made an objectively ascertainable error,” and (2) “materially relied on that error”). If in any given case inaccurate-information seems to fit as well as new-factor, then some thought ought to be given to grounding the motion in that theory. (As with anything, caveats may apply. It may be that inaccurate-information will subject the client to a greater risk, in that the remedy in the first instance is procedural, namely resentencing.

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