The circuit court sentenced Muehl to prison and made him eligible for the earned release programs. Turns out Muehl was ineligible for those programs, so he filed a motion to modify his sentence on the grounds that his ineligibility was a “new factor”—that is, a fact highly relevant to the imposition of sentence that was not known to the judge at the time of sentencing because it wasn’t in existence or was unknowingly overlooked. State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. (¶¶2-10). Although a defendant’s ineligibility for earned release programming might be a new factor in some cases, it isn’t here because Muehl hasn’t established his ineligibility was “highly relevant” to the sentencing decision.
¶17 …. Although the circuit court noted Muehl’s treatment needs during sentencing, the treatment needs were not the focus of the court’s exercise of sentencing discretion. On the contrary, the transcript reveals that the court rejected the DOC’s recommendation and imposed a 16-month period of initial confinement primarily due to Muehl’s extensive criminal history and the seriousness of his offenses. ….
¶18 It was not until after the circuit court sentenced Muehl to 16 months initial confinement that it discussed his eligibility for early release under the challenge incarceration program and the substance abuse program. And in so doing, the court stated that, despite the potential for early release to extended supervision, Muehl would not be eligible for release until he served “no less than 13 months of initial confinement.” The words used by the court demonstrate that it was not focused on incentivizing Muehl’s participation in treatment with the possibility of release after 13 months—it instead wanted to ensure that Muehl would not be released without serving a minimum of 13 months initial confinement, despite any progress he made in treatment.