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Supreme Court clarifies sentence modification

By: David Ziemer, [email protected]//May 12, 2011//

Supreme Court clarifies sentence modification

By: David Ziemer, [email protected]//May 12, 2011//

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Hon. Ann Walsh Bradley
Hon. Ann Walsh Bradley

For a new factor to warrant sentence modification, it need not be a fact that “frustrates the purpose of the original sentencing.”

The Wisconsin Supreme Court recognized that any fact that does frustrate the purpose of sentencing will necessarily warrant modification.

But it added, “The converse may not always be true.”

Justice Ann Walsh Bradley wrote for a unanimous court, “A circuit court might conclude that its entire approach to sentencing would have been different had it been aware of a fact that is ‘highly relevant to the imposition of sentence.’ Even so, the court may not be able to conclude that the new fact, which would have changed its entire approach to sentencing, necessarily frustrates the purpose of the original sentence it imposed.”

Accordingly, the court withdrew language from State v. Michels, 150 Wis.2d 94, 441 N.W.2d 278 (Ct.App.1989), and other opinions relying on Michels, asserting that frustration of purpose is a prerequisite for sentence modification.

But the “victory” was a hollow one – the court held that, in this case, the defendant failed to present a new factor, even under the correct standard.

Milwaukee attorney Joseph Redding, who represented the defendant, Shantell Harbor, said he was glad the court clarified the law, but was disappointed in the ultimate result. “The court got rid of an element that I don’t think anyone knew how to apply.”

Harbor pleaded guilty to two counts of attempted robbery with threat of force, and one count of armed robbery with threat of force.

At sentencing, defense counsel presented Harbor’s mental health as a mitigating factor, and the circuit court agreed. Nevertheless, the court imposed 12 years of confinement and 12 years of extended supervision, citing as one reason Harbor’s failure to take medication that would control her mental disorders.

Post-conviction counsel obtained more detailed evidence of Harbor’s mental health problems, and moved for sentence modification based on that evidence. The circuit court denied the motion without a hearing, noting that it had taken Harbor’s mental health issues into consideration, and concluding that more extensive knowledge of them would not have caused it to impose a lesser sentence.

The Court of Appeals affirmed, citing language in Michels that a prerequisite for sentence modification based on a new factor is that the factor be something that frustrates the purpose of the original sentence.

The Supreme Court accepted review and affirmed, but not for the reason given by the Court of Appeals.

The court noted there are two lines of cases addressing new factors.

One stems from Rosado v. State, 70 Wis.2d 280, 234 N.W.2d 69 (1975), in which the Court held that a new factor is a fact highly relevant to sentencing, but overlooked at the time of sentencing.

The second stems from Michels, and limits new factors to those which also frustrate the purpose of the original sentencing.

Rejecting the second line of cases, the court found that it had no support in the existing law when it was enunciated. Instead, it derived from a case which instead concerned a circuit court’s authority to increase a defendant’s punishment and revoke probation.

The court concluded, “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.”

Applying the Rosado standard, the court affirmed, agreeing with the circuit court’s assessment that it was aware of, and had considered, Harbor’s mental health issues at the original sentencing.

What the Court Held

Case: State v. Harbor, No. 2009AP1252

Issue: Must a new factor be something that frustrates the purpose of the original sentence in order to warrant sentence modification?

Holding: No. A new factor need only be highly relevant, but unconsidered at the original sentencing.

Attorneys: For Plaintiff: Michael Sanders, Madison; For Defendant: Joseph Redding, Milwaukee

David Ziemer can be reached at [email protected].

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