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In deciding whether to modify sentence based on a new factor, court may consider whether the new factor frustrates the purpose of the sentence

State v. Dustin M. Yanda, 2018AP412-CR, District 3, 6/18/19 (not recommended for publication); case activity (including briefs)

In State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828, the supreme court held that a defendant seeking a “new factor” sentence modification doesn’t need to prove that the new factor “frustrates the purpose” of the original sentence. However, Harbor doesn’t preclude the sentencing court from considering whether the purpose of the sentence is frustrated in deciding whether to modify a sentence once the court has concluded the defendant has proven a new factor.

At Yanda’s sentencing the court deemed him eligible for the Earned Release Program (ERP) and Challenge Incarceration Program (CIP). But his crime of conviction was under ch. 940, so he was statutorily ineligible for both programs. So he moved for sentence modification, asserting his statutory ineligibility was a “new factor”—information in existence at the time of sentencing that was unknowingly overlooked and highly relevant to the imposition of the sentence—and that the court should modify his sentence based on this new factor. The circuit court declined, saying it didn’t believe his ineligibility “frustrated … the primary purpose of the … sentence.” (¶¶4-10).

The court’s ruling appears to be premised on the belief that information isn’t a “new factor” unless the defendant proves that, in addition to being overlooked and highly relevant, the new information frustrates the purpose of the sentence. But Harbor said there is no independent frustration-of-purpose requirement. So did the circuit court err in denying Yanda’s motion by imposing that requirement? Nope, says the court of appeals:

¶16     …. The State conceded, both before the circuit court and in this court, that Yanda’s statutory ineligibility was a new factor, which … is a question of law. See Harbor, 333 Wis. 2d 53, ¶36. The circuit court accepted this stipulation and concluded that Yanda had, in fact, presented a new factor. ….

¶17    It is therefore undisputed in this case that a new factor exists. The only question, then, is whether the circuit court properly exercised its discretion in denying sentence modification under these circumstances.

And when it comes to exercising its discretion as to whether to modify the sentence based on this undisputed new factor, the sentencing court may consider whether the new information frustrates the purpose of its sentence:

¶20     Nowhere in Harbor did the supreme court state that a circuit court is prohibited from considering whether a new factor frustrates the purpose of the sentence when determining whether, in the exercise of its discretion, a new factor warrants sentence modification. Indeed, to the extent Harbor may be read to say anything about a circuit court’s exercise of its discretionary authority, the language supports the distinction we draw here. Under Harbor, a circuit court considering whether to modify a sentence based upon a new factor has the weighty responsibility to determine whether, in light of the new information, the original sentence has become unjust. See id., ¶51. In doing so, the court must necessarily analyze the basis for the sentence it imposed and determine whether it would have acted differently if it had been presented with the new fact or facts. See id., ¶¶50-51. The purpose for [the] sentence thus necessarily becomes an important consideration in determining whether a sentence was, in retrospect, unjust.

Because the circuit court considered whether the purpose of the initial sentence was frustrated only as part of deciding whether to modify the sentence based on the new factor, it did not apply an incorrect standard in denying Yanda’s motion for sentence modification. (¶¶21-23).

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