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Sentence Modification – New Factor: Test / Mental Health Background; Counsel – Effective Assistance – Sentencing

State v. Shantell T. Harbor, 2011 WI 28, affirming unpublished decision; for Harbor: Joseph E. Redding; case activity

Sentence Modification – New Factor

The “new factor” test for sentence modification has split into “two divergent lines of cases”: Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (fact(s) highly relevant to, but not brought out at, sentencing because not then in existence or  unknowingly overlooked); and State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989) (adding to this formulation requirement that new factor “frustrates the purpose of the original sentencing”). Noting “that the Michels court’s modification of the Rosado definition found no support in the existing law at the time,” the court now essentially overrules Michels on this point and restores Rosado:

¶48  We take this opportunity to clarify the law.  We conclude that frustration of the purpose of the original sentence is not an independent requirement when determining whether a fact or set of facts alleged by a defendant constitutes a new factor.


¶52  Accordingly, we conclude that the definition set forth in Rosado is the correct definition of a “new factor” for purposes of sentence modification.  We withdraw any language from Michels and the cases following Michels that suggests an additional requirement that an alleged new factor must also frustrate the purpose of the original sentence.

Harbor thus wins the war even though she loses the particular battle: the court ends up denying relief even under the now-loosened test. Henceforth, the Rosado test applies (70 Wis. 2d at 288: “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 because, even though it was then in existence, it was unknowingly overlooked by all of the parties”). If nothing else, eliminating the frustrate-sentencing-purpose requirement opens up possibilities for sentencing relief. Hard to say what they might be – Michaels has thwarted 22 years of caselaw development which would otherwise have tested those limits; and a short post such as this one isn’t the place for such exploration anyway. The specific limitation Michels itself imposed – significant, even fatal, health problems can’t be a new factor; same effect: State v. Johnson, 210 Wis. 2d 196, 565 N.W.2d 191 (Ct. App. 1997) – might have been resolved as a practical matter by § 302.1135 (“extraordinary health condition” may support early release from confinement). But the loosening of the test should afford opportunities where none previously existed. It is not that the test should be considered generous – clearly, it is not – just that it no longer is illusory.

New factor test “two-step inquiry” summarized, ¶¶36-38.

New Factor – Defendant’s Background

Where the sentencing court was made aware of the defendant’s mental health issues, including bipolar disorder, severe depression and hospitalization, additional facts relating to her mental health did not “as a matter of law” constitute a new factor, ¶¶53-58. Nor did the trial court erroneously exercise discretion in declining to view as a new factor, evidence of her “recurring drug use”; the judge perceived it as “a major aggravating factor,” ¶¶59-63. Finally, the trial court didn’t erroneously exercise discretion in refusing to find a connection between the defendant’s (previously unrevealed) difficult childhood and her commission of the crimes as an adult, ¶¶64-65.

Counsel – Effective Assistance – Sentencing

Failure to investigate and present possible mitigating factors may amount to deficient performance.

¶68  In all cases, and especially in a case involving a maximum sentence of almost 70 years, it behooves an attorney to investigate possible mitigating factors and to bring them to the attention of the court.  Doing so may involve requesting the court to order a PSI, commissioning a sentencing memorandum, or defense attorneys conducting their own investigation.

¶69  We have commented that, given the abolition of parole boards which had served as a check on a sentencing court’s exercise of discretion, “judges have an enhanced need for more complete information upfront, at the time of sentencing.”  Gallion, 270 Wis. 2d 535, ¶¶33-34. It is better for a judge to arrive at “a conclusion that is based on more complete and accurate information and reached by an organized framework for the exercise of discretion.”  Id., ¶36.

Here, however, deficient performance need not be reached; prejudice can’t be shown, notwithstanding that post-sentencing information “paints a more complete picture,” including “some sympathetic facts.” The trial court “considered many of the [new] facts to be aggravating and others to be irrelevant.” Harbor therefore fails to show reasonable probability the outcome would have been different absent the asserted deficient performance, ¶¶72-75.

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