On Point

State v. Steven C. Feldmann, 2007 WI App 35, PFR filed 3/23/07
For Feldmann: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: The ch. 980 omission of required proof of a recent overt act of sexual violence does not violate equal protection, as compared with the ch. 51 mental health commitment requirement of proof of a recent overt act demonstrating dangerousness.

The supreme court refused to impose such requirement under ch. 980 as a matter of substantive due process, inState v. Thomas H. Bush (III), 2005 WI 103.

State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser

Issue/Holding:

¶6 “When a resentencing is required for any reason, the initial sentence is a nullity; it ceases to exist.” Carter, 208 Wis. 2d at 154. In resentencing “the court imposes a new sentence after the initial sentence has been held invalid.” Id. at 147. At resentencing not only may a court consider a defendant’s conduct after the imposition of the invalid sentence, id. at 146, but the court is not required to defer to the original sentencing objectives, State v. Naydihor, 2004 WI 43, ¶¶78-79, 270 Wis. 2d 585, 678 N.W.2d 220. In effect, the resentencing court is starting over. See Carter, 208 Wis. 2d at 157 (“The circuit court’s role in determining an appropriate sentence is the same whether the proceeding is an initial sentencing or a resentencing.”). Resentencing is limited only by the constitutional requirement that if a longer sentence is imposed at the second sentencing, a record must be made of the specific reasons for increased punishment in order to protect a successful defendant from vindictiveness by the court. North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). Our supreme court has read the Pearce rule as “extending to information about events and circumstances either that the circuit court was unaware of at the initial sentencing or that occurred after the original sentencing.” Carter, 208 Wis. 2d at 149 (citations omitted).

State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser

Issue/Holding:

¶7 Counsel for Wood points out that published opinions have been somewhat imprecise in distinguishing between the requirements for, and effect of, sentence modification as opposed to resentencing. We acknowledge that language has, on occasion, been imprecise. …

…

¶9 Similarly, in State v. Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, we reversed and remanded “for resentencing” when we concluded that the trial court relied upon inaccurate information (a probation officer’s representation that Norton’s probation would not be revoked) coupled with later circumstances that extended Norton’s sentence for nine months (when his probation was revoked). Id., ¶1. We held that the misrepresentation constituted “a new factor.” Id., ¶¶1-4. We held that “the circumstances do constitute a new factor and resentencing is required because the inaccurate information relied on by the trial court frustrates the purpose of the sentence.” Id., ¶13 (emphasis added). A new factor analysis and frustration of a purpose of the sentence are concepts related to modification of the sentence to correct specific problems, not to resentencing when it is necessary to completely re-do the invalid sentence. We inadvertently muddled the linguistic and legal waters with our mixing of distinctly different concepts.

¶10 We again mixed resentencing and sentence modification concepts in State v. Delaney, 2006 WI App 37, 289 Wis. 2d 714, 712 N.W.2d 368 …. Our use of the word “resentencing” in the context of a new factor analysis relevant to sentence modification may have contributed to additional confusion.

…

¶17 Once the trial court found that grounds for sentence modification did not exist, particularly with an unrepresented defendant, ^[8] the trial court should not have converted a motion for sentence modification to a motion for resentencing in the absence of a clear, unequivocal and knowing stipulation by the defendant. Accordingly, we reverse and remand with instructions to vacate the sentence now in effect, to deny the motion to modify the sentence and to reinstate the sentence originally imposed with credit for all time served from the date the original sentence was vacated.

Wood moved for new-factor based sentencing relief; the trial court denied relief on that basis, but went ahead and converted the request to one for re-sentencing, which it granted over Wood’s objections. The court of appeals says that refusal to find a new factor should have ended the matter. [Wood, by the way, got the same sentence re-imposed on re-sentencing, so “vacat(ing) the sentence now in effect” can’t have any real impact on him.] What are the implications? Re-sentencing wipes the slate clean, and affords more latitude for either a greater or lesser sentence. Greater potential risk, greater potential reward. But there is larger problem, one lying at the very core of new-factor analysis and exemplified if not articulated by this very case. When you get right down to it, the new-factor test is so stringent, and the courts’ administration of it so fussy, that satisfying the test is a virtual impossibility. Our reports are now littered with decisions telling us what does not amount to a new factor (as, indeed, is also true in this case). But just what does satisfy the test? As it turns out, the very sort of thing that would amount to inaccurate sentencing data and would therefore support re-sentencing based on inaccurate information. In brief, virtually every “new factor” will amount to inaccurate information; on the other hand, you can satisfy the inaccurate-information test for re-sentencing even though you fall short of the new-factor test. It’s not so much, then, that various decisions have used “imprecise” language but, rather, that there is very little if any functional difference between new-factor and inaccurate-information based sentencing relief—satisfy the former and you almost certainly satisfy the latter. This case takes us right up to the water’s edge but doesn’t plunge in. Note the court’s curious aside: “the trial court should not have converted a motion for sentence modification to a motion for resentencing in the absence of a clear, unequivocal and knowing stipulation by the defendant.” What difference would it make whether or not the defendant assented? Since when does a defendant rather than the court get to determine whether a sentence can be disturbed? Wood either had a basis for re-sentencing or he didn’t; and if he didn’t then his whole-hearted embrace of something he wasn’t entitled to would be utterly meaningless. Most likely, the trial court simply had an intuitive, and entirely correct, sense that his new-factor motion also went to inaccurate information. But that theory goes to a much different and riskier form of relief, one that Wood was not willing to undertake—which is undoubtedly why the court of appeals required his willing assent. Note that the court of appeals does not distinctly hold that Wood fell short of an inaccurate-information argument. Instead, the court simply holds that, given Wood’s unwillingness to go down that path, the trial court should have stopped immediately upon declining to find a new factor, ¶14. The point, again, is that failure to satisfy the impossibly daunting new-factor test doesn’t preclude inaccurate-information relief. The latter analysis wasn’t undertaken in this case because the defendant expressly disavowed it. At some point, perhaps, the doctrinal tensions will require either a loosening of the new-factor test or its abolition. As things now stand it is more or less a fiction.

State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser

Issue/Holding: The governor’s 1994 letter exhorting bureaucratic opposition to (pre-TIS) parole for certain crimes was not a new factor, even though the sentencing court expressly took into consideration DOC data purporting to show the likely chance of parole:

¶11 We held in Delaney that the Thompson 1994 letter was not a “new factor” in part because: (1) there was no showing that the 1994 letter had any impact on Delaney’s discretionary parole eligibility; ^[2] (2) the letter was not to the Parole Commission, but to the DOC Secretary who has no control over the Commission; ^[3] (3) the letter urged more aggressive conduct, but did not change existing law; ^[4] and (4) the letter did not mention parole, but referred only to mandatory release. ^[5] Thompson’s 1994 letter to the DOC Secretary is not a “new factor” justify ing sentence modification. Delaney, 289 Wis. 2d 714, ¶¶16-18.

¶12 Although unlike in Delaney, the trial court which sentenced Wood specifically considered when he would “likely” be paroled, nothing in the court’s sentencing explanation was a promise that he actually would be paroled at that date. Indeed, because an inmate’s behavior in prison has an impact on actually being granted parole, the trial court could not have ordered his release at a specific time.

Yet again, we are instructed as to what is not a new factor. In Delaney, the court of appeals stressed that the sentencing judge “neither expressly relied on nor discussed parole policy,” 2006 WI App 37, ¶12. But Wood’s judge did rely on assumed likelihood of parole release. That seemingly critical distinction turns out however to be meaningless.

State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser

Issue/Holding:

¶5 A new factor, as defined in Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), 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 because, even though it was then in existence, it was unknowingly overlooked by all of the parties.

A new factor is something that frustrates the purpose of the sentencing court. See State v. Franklin, 148 Wis. 2d 1, 14, 434 N.W.2d 609 (1989). “To promote the policy of finality of judgments, strict rules govern the information that can be considered in a request for sentence modification.” State v. Carter, 208 Wis. 2d 142, 146, 560 N.W.2d 256 (1997) (citing Franklin, 148 Wis. 2d at 9).

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: Sentence of 13 years (3 IC; 10 ES) for sexual contact was not harsh and excessive, notwithstanding closeness in age between defendant and underage victim:

¶12      As to excessiveness, Thexton notes that he was close in age to the victim. The sexual contact between the two began when he was seventeen and she fourteen and ended when he was eighteen and she fifteen. He points out that the sexual encounters between him and the victim did not involve force and argues that these facts, along with his other positive attributes, militate in favor a shorter sentence. However, it is clear that the court considered the relative gravity of the offenses as a mitigating factor in imposing the sentence that it did, but also considered Thexton’s other conduct, including that leading to his previous conviction and that which occurred while he was on probation. We note that the maximum sentence for Thexton’s offense at the time it was committed was thirty years, with twenty years of prison time. ^[7] A sentence of thirteen years, three of them in prison, does not strike us as disproportionate to the offense here. See State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983) (“A sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”).

Left unmentioned by the court: the settled principle that a sentence is presumptively not harsh and excessive, see, e.g., State v. Michael A. Grindemann,  2002 WI App 106, ¶¶29-33.

State v. Mark D. Jensen, 2007 WI 26, on bypass
For Jensen: Craig W. Albee

Issue/Holding:

¶27      In light of the standard set out above, we conclude that under the circumstances, a reasonable person in Julie’s position would anticipate a letter addressed to the police and accusing another of murder would be available for use at a later trial. The content and the circumstances surrounding the letter make it very clear that Julie intended the letter to be used to further investigate or aid in prosecution in the event of her death. Rather than being addressed to a casual acquaintance or friend, the letter was purposely directed toward law enforcement agents. The letter also describes Jensen’s alleged activities and conduct in a way that clearly implicates Jensen if “anything happens” to her.¶28      Furthermore, the State insists that the letter is nontestimonial because it was created before any crime had been committed so there was no expectation that the letter would potentially be available for use at a later trial. However, under the standard we adopt here it does not matter if a crime has already been committed or not. …

…

¶30      For many of the same reasons, we also determine that the voicemails to Kosman are testimonial. ^[10] The crux of Julie’s message was that Jensen had been acting strangely and leaving himself notes Julie had photographed and that she wanted to speak with Kosman in person because she was afraid Jensen was recording her phone conversations. Again, the circuit court determined that these statements served no other purpose than to bear testimony and were entirely for accusatory and prosecutorial purposes. Furthermore, Julie’s voicemail was not made for emergency purposes or to escape from a perceived danger. She instead sought to relay information in order to further the investigation of Jensen’s activities. This distinction convinces us that the voicemails are testimonial. See Pitts v. State, 627 S.E.2d 17, 19 (Ga. 2006) (“Where the primary purpose of the telephone call is to establish evidentiary facts, so that an objective person would recognize that the statement would be used in a future prosecution, then that phone call ‘bears testimony’ against the accused and implicates the concerns of the Confrontation Clause.”).