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2009AP1252-CR State v. Harbor

Sentencing
Modification; new factors

Frustration of the purpose of the original sentence is not an independent requirement when determining whether a fact or set of facts alleged by a defendant constitutes a new factor.

“The requirements for sentence modification are meant to ‘promote[] the policy of finality of judgments [while at the same time] satisf[ying] the purpose of sentence modification, which is the correction of unjust sentences.’ Franklin, 148 Wis. 2d at 9. During oral argument, the State appeared to concede that strictly applying the Michels language would unduly constrain the circuit court’s exercise of discretion in correcting unjust sentences: I do not know that I would want to argue that in the exercise of its discretion the court could not say well, this does not really frustrate what I was doing. However, with this new information that I did not have at sentencing, I would have had the same purpose but I might have changed the sentence slightly. I would not say that a court could not do that since this is a discretionary standard. Requiring the court to conclude that the purpose of the original sentencing was frustrated would undercut the purpose underlying sentence modification, which is to allow a circuit court discretion to modify sentences in an appropriate case.”

“Accordingly, we conclude that the definition set forth in Rosado is the correct definition of a ‘new factor’ for purposes of sentence modification. We withdraw any language from Michels and the cases following Michels that suggests an additional requirement that an alleged new factor must also frustrate the purpose of the original sentence.”

Affirmed.

2009AP1252-CR State v. Harbor

Bradley, J.

Attorneys: For Appellant: Redding, Joseph E., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison

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