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Sentencing – Modification — New Factor — General Test

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”)


¶6. Thus, sentence modification on the basis of a new factor is a two-step process. Id. First, the defendant must demonstrate, by clear and convincing evidence, that there is a new factor justifying a motion for sentence modification. See id. at 8-9. If the defendant demonstrated the existence of a new factor, the circuit court was then obliged to determine whether the new factor justifies modification. See id. at 8. In other words, in order to succeed on a claim for sentence modification based on a new factor, an inmate must prevail in both steps of the new factor analysis by proving the existence of a new factor and that it is one which should cause the circuit court to modify the original sentence. Id.

¶7. While the trial court explained, in its post-sentencing decision, its purposes for sentencing the defendant in the manner it did, and concluded that modification was not warranted, the trial court did so while operating under the mistaken belief that a new factor had to be something in existence at the time of sentencing. Finding that the evidence came into existence after sentencing, the trial court denied the motion. Consequently, the trial court’s analysis was flawed. The holding in the seminal case of Rosado clearly provides that a new factor may be something that comes into existence after the sentencing proceeding has been held. Indeed, in State v. Ramuta, 2003 WI App 80, 261 Wis. 2d 784, 661 N.W.2d 483, this court stated that: “Our recent decision in State v. Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, is an excellent example of how something that happens after sentencing can be a new factor warranting sentencing modification because it frustrates what the sentencing court wanted the sentence to accomplish.”Ramuta, 261 Wis. 2d 784, ¶10.


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