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Sentence Modification: New Factor — TIS-II, Reduced Penalty In Relation to TIS-I Sentence, Not New Factor

State v. Jose A. Trujillo, 2005 WI 45, affirming summary order of court of appeals
For Trujillo: Suzanne L. Hagopian, SPD, Madison Appellate

Issue: Whether the TIS-II reduction of penalty, such that this TIS-I defendant was sentenced to confinement exceeding what would have been the TIS-II maximum, is a “new factor” supporting modification of sentence.

¶21 We are not persuaded by Trujillo’s attempt to convince us to distinguish Hegwood and overrule Torres. We agree with the court of appeals in Torresthat the holding in Hegwood should be applied to sentence modification motions involving TIS legislation. Trujillo does not present a sufficient reason as to why the legislature’s two-stage implementation of TIS should be considered a new factor, especially since we have never held that the reduction of maximum penalties was a new factor in any other case, where the legislature has not mandated the retroactive application of the lower penalties.¶22 We also conclude that Trujillo’s argument, that we should hold that there is a new factor here, is not consistent with the plain language used by the legislature in the TIS-II enactments.

¶23 … We hold, in line with Hegwood and Torres, that the omission by the legislature of retroactive language in enacting TIS-II is significant, and we accord deference to that legislative decision. [13]

The remedy for potential TIS-I sentencing disparity is § 973.195 which, the court holds without elaboration, is “adequate” to this task, ¶25. Consider, though, the tension this creates with the very purpose of TIS. The court, that is, stresses that the goal of TIS “is to create certainty of confinement,” ¶26. And this goal, the court says, is inconsistent with the idea of “open-ended” sentence modification, id. Put aside the yawning gap in logic (no one has ever claimed that new-factor based reduction is “open-ended”; and in any event this begs the question of whether the legislature can prevent the judiciary from exercising its inherent authority): mere days before releae of this decision, the court of appeals cavalierly dismissed the notion that a guilty plea defendant is entitled to know that a specific consequence of the plea is confinement time up to a specified length, State v. Richard C. Plank, 04AP2280-CR, Dist. III, 4/19/05. Here, then, is the tension: “the certainty as to the duration of confinement at the time a sentence is imposed” trumps any possibility of modifying sentence; but when it comes to requiring that the guilty plea defendant actually know about this all-important consequence, then all of a sudden the significance of adamantine punishment vanishes from sight. Certainty of punishment for purpose of keeping the defendant confined; but not for confining him in the first instance.

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