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Sentence Modification: Repeal of Positive Adjustment Time not New Factor

State v. Michael D. Carroll, 2012 WI App 83 (recommended for publication); case activity

Repeal of ability to earn “positive adjustment time” wasn’t highly relevant to Carroll’s sentence, therefore didn’t constitute a new factor that could support sentence modification.

¶9        Because 2011 Wis. Act 38 did not become effective until more than a year after Carroll’s sentencing hearing, it is obvious that the sentencing judge could not have known about the repeal at the time of sentencing.  Thus we consider only whether the existence of positive adjustment time, was “‘highly relevant to the imposition of sentence.’”  See Harbor, 333 Wis. 2d 53, ¶¶49-50.  If the existence of positive adjustment time was not highly relevant to the imposition of the sentence, its repeal would necessarily be irrelevant to the sentencing court and thus not a new factor justifying sentence modification.

¶11      Here, the sentencing court did not mention, much less discuss, positive adjustment time.  Instead, at the sentencing hearing, the sentencing court found that Carroll was:

not eligible for the Challenge Incarceration Program, not eligible for the Earned Release Program, and I’m not using a Risk Reduction Sentence because I think protection of the community requires the confinement that I’m going to be giving without the opportunity for getting out earlier than what I am going to be listing.

(Emphasis added.)  In specifically refusing to authorize Carroll’s participation in other statutory programs related to offender good behavior, the sentencing court made it clear that a very important sentencing objective was to protect the community.  The court was focused on keeping Carroll incarcerated for as long as possible.  We conclude that the possibility of positive adjustment time was not a factor highly relevant to the sentence imposed.  Consequently, repeal of a program that was not considered at sentencing does not establish a new factor justifying sentence modification under Harbor.

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