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State v. Shantell T. Harbor, 2009AP1252-CR, Wis SCt rev granted 9/22/10

decision below: unpublished; for Harbor: Joseph E. Redding; court of appeals briefs: BiC; Resp.; Reply

Issues (from Table of Pending Cases):

Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

Whether a defendant demonstrated ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

The asserted new factor? A counseling report reciting “previously unknown information about her mental health problems, her addictions, and her traumatic upbringing.” The court of appeals was unimpressed: “Since the information in the report does not bear on the circuit court’s primary concern in imposing sentence, it is not ‘highly relevant to the imposition of the original sentence,’ and thus is not a new factor.” What about the IAC claim? To the extent the info wasn’t “new,”  that’s only because trial counsel hadn’t done the spade work to turn it up. But Harbor can’t show prejudice, given that “the central focus of the circuit court’s sentence was the protection of the public.”

Granted that the new-factor test is overly rigid, not to say something of a sham (proof? the reports are littered with decisions rejecting proffered new factors, while you can count successes on a couple of fingers; even then, those successes would probably support an alternative theory of inaccurate information). Maybe the court will loosen the test. You can always hope. Otherwise, you’re left with yet one more fact-specific holding under well-settled law, the only oddity being that this is a defendant’s petition. The IAC claim might hold interest in its own right. From the briefs, it appears the trial judge denied the claim after concluding that, having now reviewed the previously undisclosed information, he would have given the same sentence. Isn’t that the essence of an outcome-determinative result? And doesn’t IAC-prejudice require something different, an objective assessment of the reasonable probability of a different result? We’ll see.

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