New Factors That Worked: A Survey of Wisconsin Appellate Decisions Granting Sentence Modification

Introduction

Wisconsin courts repeatedly emphasize that sentence modification is an extraordinary remedy. Many motions fail because the alleged new factor does not satisfy the standards established in Rosado v. State and State v. Harbor. Despite the difficulty of obtaining relief, Wisconsin appellate courts have recognized several categories of facts that may constitute new factors.

The Governing Definition

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. Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975). The defendant bears the burden of proving a new factor by clear and convincing evidence. State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828.

Category One: Frustration of the Original Sentencing Purpose

One of the most successful categories involves circumstances that frustrate the sentencing court's original objectives. The key question is whether subsequent events substantially defeat what the sentencing court intended to accomplish.

Category Two: Sentences Based Upon Inaccurate Information

A defendant has a due process right to be sentenced based upon accurate information. When a sentencing court materially relies upon inaccurate information, relief may be available. See State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1.

Category Three: Previously Unknown Facts

Some successful cases involve facts genuinely unavailable at sentencing. The information must be highly relevant, previously unknown, and directly connected to the sentence imposed.

Category Four: Changes Affecting Sentencing Assumptions

Wisconsin courts have occasionally recognized circumstances that fundamentally alter assumptions underlying the sentence, including developments affecting sentencing objectives, program availability, or institutional placement.

New Factors That Commonly Fail

• Rehabilitation standing alone.
• Good institutional conduct by itself.
• Ordinary passage of time.
• General expressions of remorse.
• Facts already known at sentencing.

See State v. Crochiere, 2004 WI 78, 273 Wis. 2d 57, 681 N.W.2d 524.

What Successful Cases Tend to Have in Common

Successful cases often involve:

• Facts unknown at sentencing.
• Facts highly relevant to sentencing objectives.
• Documented evidence.
• Circumstances frustrating the purpose of the sentence.
• A direct connection to the sentencing court's rationale.

Lessons from Harbor

Harbor emphasized that proving a new factor is only the first step. Even when a new factor exists, sentence modification remains discretionary with the sentencing court.

Practical Considerations

Individuals evaluating sentence modification should consider whether the information was unknown at sentencing, whether it would have mattered to the sentencing court, whether it undermines the sentencing rationale, and whether it can be proven by clear and convincing evidence.

Conclusion

The most successful sentence modification cases typically involve facts that directly affect the sentencing rationale or frustrate the purpose of the sentence. By contrast, rehabilitation alone, good prison conduct, remorse, and ordinary passage of time generally fail to satisfy the new-factor doctrine.

Selected Authorities

• Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975).
• State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828.
• State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1.
• State v. Crochiere, 2004 WI 78, 273 Wis. 2d 57, 681 N.W.2d 524.