New Factor Case Analysis

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The court only held that post-sentencing information provided to law enforcement may be a new factor, but remanded the case to the circuit court to exercise its discretion in deciding whether to modify the sentence. What constitutes a proper exercise of that discretion, however, is a question on which this case provides no guidance, and which is complicated by the court using federal law as guidance.

The court refers to Federal Rule of Criminal Procedure 35, and Section 5K1.1 of the federal sentencing guidelines. However, both of these require motion by the government as a prerequisite for a reduction in sentence.

Without approval of the government, there can be no reduction, and the government’s decision not to seek reduction is not reviewable by the court.

In a state court sentence modification motion based on a new factor, however, the defendant is the one making the motion. If one were to adopt federal law concerning sentence reductions for guidance, government acquiescence in sentence modification would be a prerequisite.

Even where the government agrees to reduction, Application Note 3 to U.S.S.G. 5K1.1 provides, "substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain."

Thus, if the state opposes a motion for sentence modification, or opposes the amount requested by the defendant, Wisconsin state courts will have to grapple with the question of how much weight to give the State’s position — preclusive weight, substantial weight, or only consideration as one of many factors.

That issue could also be affected by a case currently pending in the Wisconsin Supreme Court, State v. Stenklyft, No. 03-1533-CR, in which the issue is whether the State’s veto power over sentence modification pursuant to sec. 973.195 is constitutional.

If that question were to be answered in the negative, then a court could not give preclusive weight to the State’s opposition to a defendant’s motion for sentence modification.

Another question is the relevance of the Section 5K1.1 factors in deciding the extent of sentence modification. The court of appeals directed that the factors be considered in determining "whether the post-sentencing assistance constitutes a new factor for the purposes of a postpetition motion for sentence modification (emphasis added)."

However, under the federal rules, Section 5K1.1 actually is used in determining the length of a reduction, not whether a defendant is eligible for one in the first instance. The factors assume as a prerequisite that the question whether a defendant should receive a reduction has already been answered in the affirmative.

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Presumably, the court of appeals intends that, in the sentence modification context, the Section 5K1.1 factors are to be used in determining the length of any modification, as well as whether a new factor is present, but the court’s opinion does not explicitly say so.

A far bigger potential problem that could arise in this context is conflict with Chapter 950, relating to Rights of Victims and Witnesses of Crime, when a defendant moves to modify his sentence under seal to prevent disclosure to the public.

Under sec. 950.04(b), a defendant’s victim has the right to attend court proceedings. Subsection (nt) also provides that a victim has the right "to attend a hearing on a petition for modification of a bifurcated sentence and provide a statement concerning modification of the bifurcated sentence, as provided under sec. 302.113(9g)(d)."

It is not clear how a court would comply with Chapter 950, without undermining the defendant’s need for filing his motion under seal.

– David Ziemer

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David Ziemer can be reached by email.