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Sentencing Review: New Factor – Assistance to Law Enforcement – Reduced Threat – Adolescent Brain Development Research

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

Sentencing Review – New Factor – Assistance to Law Enforcement 

McDermott, convicted in 1991 of first-degree intentional homicide, ptac with a parole eligibility date of 35 years, seeks new-factor-based modification of his PED on the ground “he helped law enforcement by participating in prison programs designed to dissuade youth from crime.” The court holds that such participation isn’t a new factor, distinguishing State v. Doe, 2005 WI App 68, ¶¶8–9, 280 Wis. 2d 731, 697 N.W.2d 101 (Doe provided information leading to conviction for a homicide previously thought accidental; this “post-sentencing substantial assistance to law enforcement is a new factor”).

¶14      Doe is a far cry from what we have here.  The programs in which McDermott participated may or may not have been valuable in deterring at least some youngsters from committing crimes, but under no stretch of the imagination can McDermott’s participation be equated with the type of “substantial assistance” envisioned by Doe; simply put, McDermott did not give any “information to law enforcement to assist in ferreting out and curtailing crime,” no less “valuable information.”  See id., 2005 WI App 68, ¶10, 280 Wis. 2d at 740, 697 N.W.2d at 106 (emphasis added).  McDermott’s participation in the programs was not a “new factor” and thus, as a matter of law, does not pass the first hurdle of Harbor’s two-part analysis.

Two-step new factor test, State v. Harbor, 2011 WI 28, ¶¶35, 51, 333 Wis. 2d 53, 72, 77, 797 N.W.2d 828, discussed (defendant has burden to establish existence of new factor, reviewed de novo; if defendant passes this screen, then trial court exercises discretion on whether to modify sentence, reviewed deferentially), ¶9.

Sentencing Review – New Factor – Reduced Threat 

The court rejects McDermott’s argument that his sentence may be modified because he no longer presents a threat to society.

¶15      Recognizing that a new factor does not encompass post-sentencing “rehabilitation,” see State v. Crochiere, 2004 WI 78, ¶¶14–15, 273 Wis. 2d 57, 68–69, 681 N.W.2d 524, 530, clarified or modified on other grounds by Harbor, 2011 WI 28, ¶47 n.11, 333 Wis. 2d at 76 n.11, 797 N.W.2d at 839 n.11, McDermott contends that his “actions over the past 19 years remove” the basis for the trial court’s assertion that it would “never feel comfortable around you.”  He says that he “has made good” on his promise to rehabilitate himself, and that this is, therefore, a “new factor” that justifies modifying his parole-eligibility date: “Had the [trial] court known that McDermott’s transformation in fact was sincere, the scales would have weighed differently, with his sincerity mitigating against the perceived need for such a lengthy period before parole consideration to protect the community or to address his character.”  McDermott says “that the attainment of his goals and proving that he in fact could be rehabilitated, something the sentencing court was uncertain he could accomplish, is the new factor. McDermott’s conduct puts to rest any doubt the [trial] court had about his ability to change.”  This, however, is but an “I am now rehabilitated” argument in slightly different clothes, and could apply to almost any defendant who on sentencing day apologizes and promises to put his disordered life together.  If accepted as a “new factor,” it would wholly gut established law in Wisconsin that “an inmate’s progress or rehabilitation while incarcerated” is not a “new factor.”  See Crochiere, 2004 WI 78, ¶15, 273 Wis. 2d at 69, 681 N.W.2d at 530.

Sentencing Review – New Factor – Adolescent Brain Development Research 

McDermott, just turned 18 when he participated in the homicide, “argues that what he says is the recent realization in the scientific community that adolescents are generally impulsive and often have trouble making wise choices is a new factor that, if known by the trial court in 1991, would or might have resulted in a different parole-eligibility date,” ¶16. The court rejects the argument, deeming it controlled in the first instance by the holding of State v. Ninham, 2011 WI 33,¶91, 333 Wis. 2d 335, 797 N.W.2d 451 that, although studies re: adolescent brain development may not have been in existence at time of Ninham’s sentencing, the conclusions they reached “were already in existence and well reported by the time Ninham was sentenced in 2000”: “The conclusions were also known when the trial court sentenced McDermott” in 1991, ¶19.

¶20      Second, that adolescents are generally more impulsive than adults has been known since humans were able to observe their environment.  Thus, for example, Aristotle noted in his Nicomachean Ethics that, “[y]oung people are in a condition like permanent intoxication[.]” Wikiquote, (last visited Dec. 12, 2011).  And even before that, Book 23 of Homer’s The Illiad recited in one of the many translations:

You know how a young man
can do foolish things.  His mind works quickly,
but his judgment’s suspect.[[3]]

¶21      To say, as McDermott argues, that the trial court did not realize what recent scientific research has confirmed ignores reality, and, in essence, puts the old wine of human experience in the new bottles of recent research and labels the entire package as “new.”  As we have seen, Ninham rejected this false labeling.  Ninham, 2011 WI 33, ¶92, 333 Wis. 2d at 386, 797 N.W.2d at 476–477 (“[T]he ‘new’ scientific research regarding adolescent brain development to which Ninham refers only confirms the conclusions about juvenile offenders that the Supreme Court had ‘already endorsed’ as of 1988.”) (citation omitted).

¶22      In essence, McDermott’s lament echoes what has been attributed to Ben Franklin:  “Reckless youth makes rueful age.”[4]  The legislature has created a scheme of accountability for convicted criminals, and has given the circuit courts discretion either to deny the possibility of parole to those convicted of first-degree intentional homicide, or to set a parole-eligibility date.  Indeed, as we have seen, McDermott and his accomplice killed their victim when McDermott was eighteen. Under the capital-punishment decision on which McDermott relies for his contention that new research on brain function justifies a modification of his parole-eligibility date, Roper v. Simmons, 543 U.S. 551, 569 (2005), states may sentence eighteen-year olds to death, see id., 543 U.S at 575.  As with Ninham, McDermottt has not shown that the new research is a “new factor” under the first aspect of Harbor’s two-part analysis.  That McDermott may now rue what he did does not change things.

Take note: The court “commend(s) the State for including the full transcript of McDermott’s sentencing in its supplemental appendix, even though this was McDermott’s responsibility,” ¶1 n. 1. Recall that the court of appeals has the authority to impose a sanction for an  inadequate appendix, State v. Nielsen, 2011 WI 94, which authority it has specifically exercised where the appendix didn’t include the entire sentencing transcript on appeal of a sentencing issue (“there is no reason to omit the entirety of the sentencing court’s remarks when the exercise of sentencing discretion is at issue”). Hence the mention of the footnote in this post; a friendly reminder, in other words.

Separate post follows on the duty of a trial judge to exercise discretion independently. Here, it will simply be noted that the postconviction court seemed to abdicate its responsibility to engage in independent review of the motion to modify sentence, ¶9 n. 2. This abdication didn’t impede review, but only because the question (whether McDermott had established a new factor) was one of law, therefore reviewable de novo. Id. Hard to think that review of a discretionary ruling suffering the same defect would meet the same treatment.

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