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Sentence Modification — New Factor — Assistance to Law Enforcement

State v. John Doe, 2005 WI App 68
For John Doe: Amelia L. Bizzaro (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”)

Issue/Holding: “(A) defendant’s substantial and important assistance to law enforcement after sentencing may constitute a new factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted,” ¶1.

¶8. Remarkably, there are no published cases in Wisconsin touching on whether post-sentencing substantial assistance to law enforcement is a new factor. We have looked to federal law for guidance, and have found it particularly instructive. The Federal Rules of Criminal Procedure specifically address post-sentencing assistance to law enforcement as an appropriate factor for possible sentence modification. See Fed. R. Crim. P. 35(b)(1)(A). Rule 35(b)(1)(A) expressly authorizes a reduction in a sentence if “the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.”4 Id.

¶9. A similar provision is found in the Federal Sentencing Guidelines. SeeU.S. Sentencing Guidelines Manual § 5K1.1 (2004). While § 5K.1.1 concerns sentence reductions for substantial assistance given to authorities before sentencing and affects the imposition of the original sentence, we find the enumerated considerations quite helpful in determining whether the post-sentencing assistance constitutes a new factor for the purposes of a postconviction motion for sentence modification as well. … We adopt these factors for the court’s use in assessing whether the assistance constitutes a new factor.

¶10. We are satisfied that the broader rule of permitting the trial court, in appropriate cases, to modify a sentence after substantial assistance has been given to authorities, promotes sound public policy. Sentence modification should be available to those already sentenced who possess and can provide valuable information to law enforcement to assist in ferreting out and curtailing crime. To limit sentencing credit to only those facing sentences will act as a disincentive for prisoners to contact law enforcement when they either possess or come to possess valuable information that could prevent crimes or bring the guilty to justice. Indeed, permitting trial courts to modify sentences in this manner will also address some of the concerns expressed in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, about sentencing discretion in light of truth-in-sentencing changes …. In light of these conclusions, clearly the supreme court envisioned the trial court’s need to have greater discretion in sentencing. Thus, we remand this matter for the trial court to apply the second part of the Franklin two-part test to determine whether the defendant is deserving of a sentencing reduction in light of his post-sentencing assistance. (Emphasis supplied.)

Remarkably, there are no published cases …. True, but that is simply because the courtconsistently, in an unbroken string of unpublished cases going back nearly two decades rejected the idea of post-sentencing assistance as a new factor. The court thus took it for granted that activity such as Doe’s was not a new factor, a conclusion apparently so obvious that publication was never warranted — and a good thing, too: absence of negative precedent may have invited recurrent litigation, but it culminated in this reversal. Indeed, as recently as 12/3/02, the court came to the following (representative) conclusion, in State v. Nkosi K. Brown, 02AP0397:

¶22. Nkosi Brown claims that his “enthusiastic” post-sentencing cooperation with the federal government in an unrelated case is a new factor. We disagree. “Post-sentence conduct is not a new factor for sentence modification purposes.” State v. Kaster, 148 Wis.  2d 789, 804, 436 N.W.2d 891, 897 (Ct. App. 1989). Nkosi Brown’s cooperation with the authorities and his favorable progress in the prison rehabilitation system are matters to be considered by parole authorities, not the courts. See State v. Kluck, 210 Wis.  2d 1, 8, 563 N.W.2d 468, 471 (1997).

¶23. Moreover, Nkosi Brown’s post-sentencing cooperation with the authorities does not frustrate the purpose of the original sentence. The trial court selected the sentence in part because Nkosi Brown refused to identify a co-actor in the robberies: “I also express my concern that Mr. Brown has not identified the coactor who participated in the armed robberies.”2 Thus, Nkosi Brown’s subsequent willingness to cooperate with law enforcement authorities is not a proper basis for sentence modification-indeed, it is evidence that the sentence is achieving its purpose. See id., 210 Wis. 2d at 10, 563 N.W.2d at 472 (“it flies in the face of reason and logic to modify a sentence that is achieving its purpose”).

Doe, then, works substantial revision of caselaw, so that assistance to law enforcement may now be regarded a new factor, as a matter of law. (Of course, whether this will be enough in any given case to justify sentence reduction is a fact-specific, discretionary exercise which involves the second phase of the new-factor test; the point is simply that now, you can get to that stage and before, you couldn’t.)

There are several immediate points of interest. First is the court’s invocation of policy concerns, which is itself (to borrow a term) bifurcated into both a specific incentive to help law enforcement and a more general one to assure a fair and just result in light of the TIS abolition of parole. These aren’t unrelated considerations. Under a parole regime, cases such as Brown might readily dispatch a substantial-assistance argument by placing it in the rehabilitation-therefore-parole pigeonhole. That, of course, is no longer the case, asDoe recognizes. More interesting still, this conclusion runs counter to the prevailing (and heretofore rigidly adhered to) assumption that the TIS abolition of parole did not, as a matter of law, make rehabilitative progress a new factor, State v. James D. Crochiere, 2004 WI 78. (The court previously held that unavailability of parole, as in the case of misdemeanor sentence, similarly could not be a new factor, Kluck.) At least in the context of substantial-assistance, the TIS abolition of parole does impact new-factor analysis.

This leads to the second point, which is really more of a question: how far can you extend the holding? Any extension beyond the immediate factual context is potentially problematic, as illustrated by the recent cases of State v. Jose A. Trujillo, 2005 WI 45 and State v. James Hubert Tucker, Jr.. 2005 WI 46 (TIS-II reduction of TIS-I penalties not new factor to support TIS-I sentence modification). Trujillo and Tucker might be read narrowly to mean that where the legislature has, however tentatively, occupied the field, then the matter so occupied can’t support a new factor. More concretely: the legislature has enacted a “safety-valve” provision, § 973.195, which both safeguards against TIS-I vs. –II disparity and also evinces legislative intent that this provision be the exclusive mechanism for relief on that particular ground. But to be sure, there is no language in these cases which explicitly supports such a narrow reading.  Moreover, some cases rejecting the proffered new factor have nothing to do with any legislative scheme. That said, there ought to be some effort to reconcile Doe with these cases. Doe is premised on the combined effects of the TIS abolition of parole, and societal value in encouraging revelation of crime. But we know that the first rationale is a nonstarter under Crochiere at least as a standaloneargument. And the clear message of Trujillo (¶26, advancing “certainty of confinement” as the overarching goal of TIS, and rejecting “open-ended” sentence modification) is that “policy” grounds are viewed skeptically. If you assign a value of “zero” to each of these variables, then (zero + zero being zero), then it’s hard to explain Doe. But perhaps they each have some weight, however faint; or they synergize each other in some fashion. Or perhaps new-factor analysis is simply incoherent and doomed to yield idiosyncratic, irreconcilable results.

Finally, the true significance of this case may lie in its impact on sentencing discretion, not post-sentencing procedure. Note, that is, the court’s explicit adoption of federal sentencing provisions, in the form of the FRCrP and USSGM; and, equally significant, note its invocation of Gallion, the seminal case on general sentencing discretion, and its linkage to the Guideline. It is hard to imagine, then, that the particular Guideline adopted by the court is limited to merely post-sentencing consideration; or that other Guidelines would be considered irrelevant to sentencing. Counsel therefore is well-advised to acquire at least a passing acquaintance with the Guidelines.


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