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Sentence — Modification — New Factor: Parole Policy

State v. Wayne Delaney, 2006 WI App 37
Pro se

Issue/Holding: Governor Thompson’s 1994 letter to the DOC exhorting pursuit of all available remedies to block release of (pre-TIS) violent offenders reaching their mandatory release date is not a new factor:

¶9        The existence of a new factor must be shown by clear and convincing evidence. Franklin, 148 Wis.  2d at 8-9. “In order for a change in parole policy to constitute a new factor, parole policy must have been a relevant factor in the original sentencing. It is not a relevant factor unless the court expressly relies on parole eligibility.” Id. at 15.

¶12      … The June 10, 1994 sentencing transcript reveals that Judge Flynn neither expressly relied on nor discussed parole policy. Nor did the judge address the April 28, 1994 Thompson letter, the parole board’s policy generally, or Delaney’s prospects for parole in particular. …

¶13      … Judge Flynn in no way suggested that Delaney would be paroled after serving only one-fourth of the time. To the contrary, the record demonstrates a sentence carefully fashioned after an express consideration of the relevant factors, and Delaney’s parole eligibility was not one of those factors.

¶16      Delaney also fails to show what impact the Thompson letter might have had on his discretionary parole eligibility. The letter refers only to Wisconsin’s mandatory release law, not parole eligibility. … Until 2014, Delaney will be eligible only for discretionary parole review. The Thompson letter thus does not apply to his situation.

¶21      In summary, Delaney has failed to establish that the Thompson letter was a new factor. The letter had nothing to do with parole and, even if we were to assume that it did, the prospect of parole played no demonstrated role in Judge Flynn’s sentencing of Delaney. As such, Judge Ptacek correctly rejected Delaney’s argument for sentence modification under the law of new factors.


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