State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
¶7 Counsel for Wood points out that published opinions have been somewhat imprecise in distinguishing between the requirements for, and effect of, sentence modification as opposed to resentencing. We acknowledge that language has, on occasion, been imprecise. …
¶9 Similarly, in State v. Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, we reversed and remanded “for resentencing” when we concluded that the trial court relied upon inaccurate information (a probation officer’s representation that Norton’s probation would not be revoked) coupled with later circumstances that extended Norton’s sentence for nine months (when his probation was revoked). Id., ¶1. We held that the misrepresentation constituted “a new factor.” Id., ¶¶1-4. We held that “the circumstances do constitute a new factor and resentencing is required because the inaccurate information relied on by the trial court frustrates the purpose of the sentence.” Id., ¶13 (emphasis added). A new factor analysis and frustration of a purpose of the sentence are concepts related to modification of the sentence to correct specific problems, not to resentencing when it is necessary to completely re-do the invalid sentence. We inadvertently muddled the linguistic and legal waters with our mixing of distinctly different concepts.
¶10 We again mixed resentencing and sentence modification concepts in State v. Delaney, 2006 WI App 37, 289 Wis. 2d 714, 712 N.W.2d 368 …. Our use of the word “resentencing” in the context of a new factor analysis relevant to sentence modification may have contributed to additional confusion.
¶17 Once the trial court found that grounds for sentence modification did not exist, particularly with an unrepresented defendant,  the trial court should not have converted a motion for sentence modification to a motion for resentencing in the absence of a clear, unequivocal and knowing stipulation by the defendant. Accordingly, we reverse and remand with instructions to vacate the sentence now in effect, to deny the motion to modify the sentence and to reinstate the sentence originally imposed with credit for all time served from the date the original sentence was vacated.
Wood moved for new-factor based sentencing relief; the trial court denied relief on that basis, but went ahead and converted the request to one for re-sentencing, which it granted over Wood’s objections. The court of appeals says that refusal to find a new factor should have ended the matter. [Wood, by the way, got the same sentence re-imposed on re-sentencing, so “vacat(ing) the sentence now in effect” can’t have any real impact on him.] What are the implications? Re-sentencing wipes the slate clean, and affords more latitude for either a greater or lesser sentence. Greater potential risk, greater potential reward. But there is larger problem, one lying at the very core of new-factor analysis and exemplified if not articulated by this very case. When you get right down to it, the new-factor test is so stringent, and the courts’ administration of it so fussy, that satisfying the test is a virtual impossibility. Our reports are now littered with decisions telling us what does not amount to a new factor (as, indeed, is also true in this case). But just what does satisfy the test? As it turns out, the very sort of thing that would amount to inaccurate sentencing data and would therefore support re-sentencing based on inaccurate information. In brief, virtually every “new factor” will amount to inaccurate information; on the other hand, you can satisfy the inaccurate-information test for re-sentencing even though you fall short of the new-factor test. It’s not so much, then, that various decisions have used “imprecise” language but, rather, that there is very little if any functional difference between new-factor and inaccurate-information based sentencing relief—satisfy the former and you almost certainly satisfy the latter. This case takes us right up to the water’s edge but doesn’t plunge in. Note the court’s curious aside: “the trial court should not have converted a motion for sentence modification to a motion for resentencing in the absence of a clear, unequivocal and knowing stipulation by the defendant.” What difference would it make whether or not the defendant assented? Since when does a defendant rather than the court get to determine whether a sentence can be disturbed? Wood either had a basis for re-sentencing or he didn’t; and if he didn’t then his whole-hearted embrace of something he wasn’t entitled to would be utterly meaningless. Most likely, the trial court simply had an intuitive, and entirely correct, sense that his new-factor motion also went to inaccurate information. But that theory goes to a much different and riskier form of relief, one that Wood was not willing to undertake—which is undoubtedly why the court of appeals required his willing assent. Note that the court of appeals does not distinctly hold that Wood fell short of an inaccurate-information argument. Instead, the court simply holds that, given Wood’s unwillingness to go down that path, the trial court should have stopped immediately upon declining to find a new factor, ¶14. The point, again, is that failure to satisfy the impossibly daunting new-factor test doesn’t preclude inaccurate-information relief. The latter analysis wasn’t undertaken in this case because the defendant expressly disavowed it. At some point, perhaps, the doctrinal tensions will require either a loosening of the new-factor test or its abolition. As things now stand it is more or less a fiction.