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Cooperation with police is new factor

Post-sentencing assistance to law enforcement is a new factor permitting a sentence modification, the Wisconsin Court of Appeals held on March 22.

The defendant, identified only as John Doe, pleaded guilty to carrying a concealed weapon, felon in possession, and felony bail jumping.

At sentencing, the trial court heard the proceeding in chambers and ordered the transcript sealed. The court heard from a member of law enforcement who discussed the defendant’s significant assistance in several major investigations that led to numerous arrests and the recovery of weapons and illicit drugs. The trial court sentenced the defendant to a total of four years of confinement, followed by five years of extended supervision.

After sentencing, the defendant provided more information to law enforcement that solved a murder that had previously been considered an accident. The murderer was convicted almost entirely on information supplied by the defendant.

The defendant then filed a motion seeking an order permitting his postconviction motion to be filed under seal, as the sentencing transcript had been sealed and he was therefore prohibited from quoting from the transcript without an order sealing the motion.

The request was denied without an explanation or a hearing. The defendant then filed a postconviction motion, in which he sought a modification of his sentences based on a new factor — the post-sentencing cooperation. Milwaukee County Circuit Court Judge Mary M. Kuhnmuench held that the new information can not be a new factor because "a new factor must be something which existed at the time of sentencing but [was] not known to the trial court."

The defendant appealed, and the court of appeals reversed in a decision by Judge Patricia S. Curley.

The court concluded that the information provided to law enforcement can constitute a new factor, although it was not in existence at the time of the original sentencing.

A "new factor" is defined in Rosado v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69 (1975), as 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."

Also, a new factor must be an event or development that frustrates the purpose of the original sentence. State v. Johnson, 210 Wis. 2d 196, 203, 565 N.W.2d 191 (Ct.App.1997).

The court found that the defendant’s cooperation with law enforcement met the definition of "new factor" in Rosado, and thus met the first step of the analysis.

What the court held

Case: State of Wisconsin v. John Doe, No. 04-0773-CR.

Issues: Can information that a defendant provides to law enforcement, post-sentencing, constitute a new factor justifying sentence modification.

Holding: Yes. Public policy supports permitting modification to those already sentenced who possess and can provide valuable information to law enforcement.

Counsel: Amelia L. Bizzaro, Milwaukee, for appellant; Robert D. Donohoo, Milwaukee; Gregory M. Weber, Madison, for respondent.

The court wrote, "While the trial court explained, in its post-sentencing decision, its purposes for sentencing the defendant in the manner it did, and concluded that modification was not warranted, the trial court did so while operating under the mistaken belief that a new factor had to be something in existence at the time of sentencing. Finding that the evidence came into existence after sentencing, the trial court denied the motion. Consequently, the trial court’s analysis was flawed. The holding in the seminal case of Rosado clearly provides that a new factor may be something that comes into existence after the sentencing proceeding has been held."

Finding no published Wisconsin cases on whether post-sentencing assistance to law enforcement is a new factor, the court looked to federal law for guidance. The court found that the Federal Rules of Criminal Procedure specifically provide that such assistance is an appropriate factor for possible sentence modification in FRCP 35(b)(1)(A). In addition, the Federal Sentencing Guidelines provide for sentence reduction based on cooperation. U.S.S.G. 5K1.1.

Although the guideline provision concerns assistance before sentencing, the court wrote, "we find the enumerated considerations quite helpful in determining whether the post-sentencing assistance constitutes a new factor for the purposes of a postconviction motion for sentence modification as well," and adopted those factors.

Section 5K1.1(a) provides: "The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant’s assistance."

The court also concluded that allowing sentence modification for post-sentencing cooperation promotes sound public policy. The court reasoned, "Sentence modification should be available to those already sentenced who possess and can provide valuable information to law enforcement to assist in ferreting out and curtailing crime. To limit sentencing credit to only those facing sentences will act as a disincentive for prisoners to contact law enforcement when they either possess or come to possess valuable information that could prevent crimes or brin
g the guilty to justice."

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Case Analysis

Accordingly, the court reversed the denial of the motion for sentence modification, and remanded the case for the circuit court to apply the second part of the two-part test — whether the new factor justifies modification.

The court also addressed the denial of the defendant’s initial motion, requesting permission to file his motion under seal, pursuant to State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 556-57, 334 N.W.2d 252 (1983).

The court concluded that it was an abuse of discretion to deny the request, and ordered the court on remand to allow the defendant to supplement his motion under seal, reasoning, "The defendant explained that he sought such an order so that he could quote from the sealed sentencing transcript. The trial court denied this request without giving its reason or holding a hearing. Without any explanation from the trial court as to its reasons for the denial, the defendant was prohibited from quoting from the sentencing transcript. Having no explanation of the court’s decision, and noting that the defendant appears to have been severely restrained in presenting his request for sentence modification, we conclude that the trial court erroneously exercised its discretion in denying the request."

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David Ziemer can be reached by email.

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