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Juvenile brain development research wasn’t a new factor justifying sentence modification

State v. Jonathan L. Liebzeit, 2021AP9-CR, District 3, 8/30/22 (not recommended for publication); case activity (including briefs)

In 1997, a circuit judge sentenced Liebzeit to life without the possibility of parole for a homicide he committed at the age of 19. In 2019, after hearing a presentation at a judicial education seminar about juvenile brain development and shortly thereafter sentencing an 18-year-old for a crime, the judge decided to to contact Liebzeit’s lawyer to suggest a sentence modification may be appropriate based on the new factor of the brain development research. After defense counsel filed a sentence modification motion the court modified Liebzeit’s sentence to make him eligible for paroled after 25 years based on two new factors: 1) new scientific understanding of brain maturity in adolescents; and 2) Liebzeit’s brain damage from his inhalant use. (¶¶4-22). The court of appeals holds the circuit court erred because Liebzeit didn’t prove either new factor.

A court can’t modify a sentence based “reflection” or “second thoughts,” but it can modify a sentence when the defendant establishes a “new factor.” A new factor is “a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.” State v. Harbor, 2011 WI 28, ¶¶35, 40, 333 Wis. 2d 53, 797 N.W.2d 828.

Liebzeit argued his inhalant use caused brain damage that resulted in impulsivity, which was a factor in his criminal activity and is relevant to his rehabilitative prospects. But the information he offered on this topic didn’t establish his brain damage affected his impulsivity. Even if it did, Liebzeit’s impulsivity had no bearing on the court’s 1997 sentencing decision, which stressed the planning and contemplation behind the crime and focused on the gravity and nature of the killing, leading the court to conclude he couldn’t be rehabilitated and that life without parole was necessary to protect the public. Thus, brain damage from inhalant use isn’t highly relevant to the original sentencing decision and so isn’t a new factor. (¶¶15-16, 25-32).

As for the research on brain development in emerging adults, State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451, and State v. McDermott,  2012 WI App 14, 339 Wis. 2d 316, 810 N.W.2d 237, hold this research isn’t a new factor because the basic conclusions of the research have been well known for a long time, even if the research is of recent vintage, published after the original sentencing. (¶¶33-45).

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