01-0542 State v. Grindemann

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“We nonetheless conclude, pursuant to our authority under Wis. Stat. § 752.02, that a circuit court should proceed in a fashion similar to that outlined in Wis. Stat. § 974.06(3) when it receives a motion requesting sentence modification. Under that subsection, a court may proceed in one of two ways to dispose of a postconviction motion: it may either deny the motion if ‘the motion and the files and records of the action conclusively show that the person is entitled to no relief’; or, the court shall ‘[c]ause a copy of the notice to be served upon the district attorney who shall file a written response within the time prescribed by the court’ and ‘[g]rant a prompt hearing.’ Section 974.06(3). Because the court omitted these steps and summarily granted Grindemann’s motion, we reverse the appealed order.”

And, even though the sentencing judge subsequently “recognized in the face of new evidence that [defendant’s] past sexual history with an older male was a mitigating factor rather than an aggravating one,” that did not constitute the type of “new factor” which justified the court’s reduction of defendant’s sentence.

“We reject Grindemann’s assertion that a court’s altered view of facts known to the court at sentencing, or a reweighing of their significance, constitutes a new factor for sentencing purposes. Rather, we conclude that this is a classic example of the ‘mere reflection’ or ‘second thoughts’ which cannot form the basis for a sentence reduction.”

And, where the 44-year sentence originally imposed was less than one-half the maximum that could have been imposed, “we find no basis in the record before us on which a judge could reasonably conclude that the sentence originally imposed was ‘unduly harsh or unconscionable,’ as that standard has been defined and applied by Wisconsin courts. Accordingly, there is no cause for further proceedings in the circuit court.”

Order reversed.

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DISSENTING IN PART: Dykman, J., concurring in part and dissenting in part. “A victim of a past sexual assault would probably not expect a trial court to use this traumatic experience as an aggravating factor justifying a harsher sentence for a crime the victim commits years later. But that is what happened here, and the majority finds this result proper. Indeed, the majority goes one step further. When the trial court in this case eventually realized that penalizing a person for being a sexual assault victim was wrong, and reduced the defendant’s sentence, the majority finds this to be unreasonable, irrational and illogical, and reinstates the previous sentence.”

Dist IV, Waushara County, Curtin, J., Deininger, J.

Attorneys:

For Appellant: Christian R. Larsen, Madison; Guy D. Dutcher, Wautoma

For Respondent: Michael Grindemann, Plymouth; Leonard D. Kachinsky, Neenah