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Sentence Review: New Factor – Substantial Assistance to Law Enforcement

State v. Anthony C. Boyden, 2012 WI App 38 (recommended for publication); for Boyden: Rex Anderegg; case activity

Information provided by Boyden before his sentencing, which didn’t bear fruit until much later, supported a new factor-based request for sentence modification. State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, followed.

¶14      Boyden’s motion for sentence modification addresses in detail the factors set forth in Doe.  It describes the assistance Boyden provided to law enforcement after he voluntarily contacted a Racine county assistant district attorney.  It sets forth the nature of the information Boyden provided, the basis of his knowledge, and the extent of his efforts (including accompanying law enforcement as they drove in and around Racine to identify locations used by Fouse and his associates).  The information is supported by an affidavit submitted by the assistant United States attorney who worked with Boyden and was involved in the investigation of Fouse.  The U.S. attorney advised that “Boyden did voluntarily cooperate with Federal and State Investigators to provide material information that assisted law enforcement.”  He characterized the assistance as “timely” and the information as “significant and useful,” and advised that the information was used to obtain search warrants to search properties that yielded evidence that assisted in Fouse’s conviction.[2]  Finally, Boyden asserted that both he and his family were placed in danger as a result of his assistance because he was the only individual identified by name in a search warrant affidavit.

¶17      We conclude that the postsentence fruits of a defendant’s substantial presentence assistance to law enforcement authorities may constitute a new factor.  We adopt the Doe factors for the court’s use in assessing whether postsentence fruits constitute a new factor warranting sentence modification because it is highly relevant to the imposition of the sentence.[4]  The State requests that we remand to the postconviction court for consideration of Boyden’s motion in light of Doe.
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