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COA critiques circuit court and state but affirms denial of “new factor” claim

State v. Amber C. Debree, 2022AP1311-CR, 02/08/23, District II (1-judge opinion, ineligible for publication); case activity (including briefs)

Debree’s disorderly conduct conviction stemmed from a physical altercation she had with her husband immediately after Debree learned he had impregnated her adult daughter. The sentencing court placed Debree on probation for two years after it questioned whether Debree was “truly accepting responsibility for her actions” and expressed concern about her criminal record. In response to the concerns about her criminal record, Debree moved the court to modify her sentence based on her history of being abused by her husband, which provided additional context to her actions in this case and some explanation for her criminal record. Ultimately, the court of appeals affirms the circuit court’s denial of her new factor claim because Debree could not show that her claimed new factor was “unknowingly overlooked by all of the parties.” (Opinion, ¶8).

The well-known definition of a “new factor” comes from Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). The “unknowingly overlooked by all parties” part of the definition is pulled directly from the facts of that case. Rosado pled guilty to sexually assaulting a child and during the presentence investigation process allegations arose concerning the “Puerto Rican affair,” which involved Rosado taking the victim to Puerto Rico with him. An investigation revealed that Rosado lived with and engaged in sexual activity with the victim in Puerto Rico, but he then returned to Wisconsin on his own and left the underage victim “stranded” in Puerto Rico. This information was presented to the court before Rosado’s sentencing and the court relied on it when sentence Rosado to prison for 14 years.

Postconviction, Rosado claimed that his version of the “Puerto Rican affair,” about which he now-intended to testify, was a “new factor” that justified a sentence reduction. Rosado’s claim was denied because “the defendant was available to give his explanation of the Puerto Rican affair” prior to and at sentencing, when all parties were “fully aware that the trial court considered this incident relevant to sentencing.” Thus, Rosado’s failure to present his version at sentencing was held to be a “conscious tactical choice” and a “knowing failure” to present the information to the sentencing court.

Debree sought to distinguish Rosado based on the fact that it wasn’t until the sentencing court expressed concern over her criminal record that her own history as a victim and survivor of domestic violence became highly relevant to the sentence imposed. While the court of appeals sympathized with Debree’s victimization, it concluded that Debree could not meet her burden to establish that she “unknowingly overlooked” her own history and instead concludes that it must be “viewed as deliberately not disclosed.” (¶¶9-12).

While the court rejects Debree’s new factor claim, it drops three footnotes critical of the circuit court and the state. First, the court “disagrees” with the sentencing court, which had disregarded Debree’s acceptance of responsibility despite her “speedy guilty plea–less than three months after the state filed charges–[that] certainly demonstrated that she accepted responsibility for her actions.” (¶11, n.5). Second, the court addressed the postconviction court, which “took issue with Debree describing herself as a survivor of domestic abuse, in part because she was still married to and living with her husband,” stating that there “can be no dispute that Debree was a victim of domestic abuse at the hands of her husband” and noting that the postconviction court’s “commentary to the contrary was improper.” (¶5, n.3). Third, the court was “particularly troubled” by the state’s flip-flopping between its position below (affirmatively supporting of Debree’s sentence modification claim) and its position on appeal (arguing that no new factor was presented). (¶12, n.6).

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