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ON APPEAL: Court clarifies test for sentence modification

Amelia L. Bizzaro

Amelia L. Bizzaro

Before the Wisconsin Supreme Court’s decision in State v. Harbor, 2011 WI 28 on May 10, the test for seeking a sentence modification based on a new factor was a little bit muddled. The Wisconsin Supreme Court used Harbor to clarify it.

The court found that the information Harbor presented was not a new factor, but it took the case as an opportunity to re-examine the test for a new factor. A new factor is “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.” Rosado v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69 (1975).

This definition is longstanding and remains intact after Harbor. The court noted that subsequent cases, beginning with State v. Michels, 150 Wis.2d 94, 441 N.W.2d 278 (1989) modified this definition to include “situations where the new factor frustrates the purpose of the original sentencing.” Harbor at ¶41. The problem, the Harbor court found, is that this modification of the definition carried no authority in the law, and Wisconsin courts have not totally embraced it, leaving two line of cases – one that follows the Rosado definition and another that requires the Rosado definition and the Michels requirement that the new factor frustrate the purposes of the original sentence. Harbor at ¶47.

The Harbor decision gets rid of the Michels addendum. “We conclude that frustration of the purpose of the original sentence is not an independent requirement when determining whether a fact or set of facts alleged by the definition constitutes a new factor.” The main problem the court had is that a new factor that frustrates the original sentence probably meets the Rosado definition, but a new factor that meets the Rosado definition may not always frustrate the original purpose of the sentence. Harbor at ¶¶49-50.

So what does this mean practically? The obvious answer is that now defendants need not demonstrate that the new factor they identify frustrates the original purpose of the sentence, but that it only meets the Rosado definition.

That is not to say, however, that the circuit courts will suddenly start modifying sentences left and right. The purpose of the sentence modification process is to correct an unjust sentence. It is not an opportunity for a sentencing judge to change his mind or reward a defendant for good behavior.

Even with Harbor, modification is still the result of a two-part test. First, the proposed new factor must meet the Rosado definition, which is a question of law. Second, whether the existence of such a new factor warrants modification of the sentence, which is an act of discretion.

It has been my experience with new factor motions that the bigger battle is over whether the defendant’s proposed new factor meets the definition of a new factor. This case seems unlikely to change that. It is true that a defendant no longer has to demonstrate whether their proposed new factor frustrates the purpose of the original sentencing, but whether the Rosado definition is still met is a matter of law.

Elimination of the Michels addendum should also affect the second prong of the test because now the new factor need not frustrate the original purpose of the sentence in order to warrant modification.

I do not think that this return to the definition of a new factor is itself a new factor. But I do think that defendants whose motions to modify were denied because their proposed new factor did not frustrate the purpose of the original sentence may have a reason to return to court.

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