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Defendant fails to show new factor justifying sentencing modification

State v. Dimitri C. Boone, 2016AP918-CR, District 1, 6/27/17 (not recommended for publication); case activity (including briefs)

Boone sought a “new factor” sentence modification based on alleged inaccuracies in the report of the presentence investigation (PSI). The court of appeals holds that Boone failed to show the information in the PSI was inaccurate, failed to show new information, or failed to show any of the information was highly relevant to the circuit court’s sentencing decision.

The court of appeals decision is necessarily fact intensive, so this post provides only a bare overview of Boone’s claims and the court of appeals’ rejection of the claims.

Boone pleaded guilty to second degree sexual assault of a child. The parties jointly recommended two years of confinement followed by one year of extended supervision. The PSI recommended a longer sentence based on his prior sexual assault convictions, the fact he made “little” progress in treatment, and some alleged problems during prior supervision periods. The judge didn’t follow the joint recommendation and imposed a sentence closer to that recommended by the PSI. (¶¶3-12).

Boone’s sentence modification motion alleged there were various “gross inaccuracies” in the PSI, that correcting the errors yields an accurate picture of Boone, and that accurate picture was unknowingly overlooked and therefore constitutes a “new factor” justifying modification of his sentence, State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828. The court of appeals concludes the inaccuracies, if any, weren’t “gross,” were corrected at the time of sentencing, or weren’t highly relevant to the circuit court’s sentencing decision, and therefore correcting them postconviction doesn’t amount to a new factor. (¶¶13, 19-37).

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