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State v. Jeremy D. Schladweiler, 2009 WI App 177

Sentence modification based on new factor; Earned Release Program and Challenge Incarceration Program

State v. Jeremy D. Schladweiler, 2008AP3119-CR, Dist II, 11/11/09

Pro se


¶7        Sentence modification involves a two-step process. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). First, a defendant must show the existence of a new factor thought to justify the motion to modify sentence. Id. If the defendant has demonstrated the existence of a new factor, the trial court must then decide whether the new factor warrants sentence modification. Id. A new factor is a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or it was in existence, but it was unknowingly overlooked by all of the parties. State v. Ralph, 156 Wis. 2d 433, 436, 456 N.W.2d 657 (Ct. App. 1990). In addition, the information or development must “frustrate[] the purpose of the original sentencing.” See State v. Johnson, 158 Wis. 2d 458, 466, 463 N.W.2d 352 (Ct. App. 1990). Finally, the defendant must establish the existence of a new factor by clear and convincing evidence. State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989). Whether a new factor exists is a question of law which we review de novo. Johnson, 158 Wis. 2d at 466.


¶9        Commonly referred to as “boot camp,” the CIP is governed by Wis. Stat. § 302.045, which provides that “the [DOC] shall provide a challenge incarceration program for inmates selected to participate” after meeting the eligibility requirements for the program. Sec. 302.045(1). …

 ¶10      Once the trial court has made an eligibility determination, the final placement determination is made by the DOC—the statute provides that, if an inmate meets all of the program eligibility criteria, the DOC “may” place that inmate in the program. Wis. Stat. § 302.045(2). Contrary to Schladweiler’s contention, it is not the sentencing court’s function to classify an inmate to a particular institution or program; this authority lies solely with the DOC. See State v. Lynch, 105 Wis. 2d 164, 168, 312 N.W.2d 871 (Ct. App. 1981) (Once a prison term is selected, the trial court may not order specific treatment; control over the care of prisoners is vested by statute in the overseeing department.). Thus, even when a sentencing court decides that a defendant is eligible for the CIP, the final placement decision is vested with the DOC.

Issue/Holding: DOC determination that an inmate isn’t eligible for CIP doesn’t constitute a new factor, notwithstanding the sentencing court’s determination that he is eligible.

11      Here, the trial court determined that Schladweiler was eligible for the CIP. … The sentencing court expressly indicated that participation in the CIP is a possibility to be ultimately determined by the department, explaining to Schladweiler the sentencing modifications that would take place “if you are placed in … the [CIP] as determined by the department.” (Emphasis added.) Based on these statements and the statutory framework which provides the DOC with the final word on his eligibility, Schladweiler simply cannot establish that the DOC’s potential denial of placement was a fact not known to the trial court at the time of sentencing.

. . . 

¶14      In sum, there is nothing in the court’s explanation that in any way indicates that its sentencing decision was premised upon Schladweiler’s acceptance into the CIP. We therefore conclude that Schladweiler has failed to demonstrate that his inability to meet the CIP placement criteria frustrated the purpose of the trial court’s sentence. See Johnson, 158 Wis. 2d at 466.

Appellate Procedure – Sentence Modification – New Factor, Generally; Sentencing – Boot Camp (CIP), Generally; Sentence Modification – New Factor – DOC Determination of Ineligibility for Boot Camp (CIP)