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Sentencing – modification — new factors

Wisconsin Court of Appeals


Sentencing – modification — new factors

The legislative repeal of positive adjustment time, which previously allowed inmates convicted of certain offenses to earn potential reductions in their terms of initial confinement for defined positive behavior, is not a new factor justifying sentence modification.

“Carroll also claims his existing sentence has effectively been increased by the repeal. That conclusion assumes that the legislature would not change the positive adjustment time statute before 2020 (when he begins serving his sentence at the end of his initial confinement), that he would eventually earn a significant amount of such time by violating no prison regulations, and that the court would ultimately allow that time to reduce his incarceration time. See WIS. STAT. § 302.113(2)(c)2. (sentencing court may accept or reject the department of corrections award of positive adjustment time or may order inmate to serve entire incarceration portion of the sentence). Because Carroll had earned no adjustment time when the statute was repealed, his argument is premised on nothing more than multiple assumptions. Such a speculative syllogism does not persuade us that he has been harmed in any way by the repeal of a statute under which he had no vested rights.”

“We conclude, based on the facts of the case before us, that the existence of positive adjustment time at the time of sentencing was not a factor highly relevant to the sentence imposed, thus the repeal of positive adjustment time is not a new factor warranting sentence modification. The motion for sentence modification was properly denied.”


Recommended for publicationin the official reports.

2011AP1922-CR State v. Carroll

Dist. I, Milwaukee County, Konkol, Kahn, JJ., Kessler, J.

Attorneys: For Appellant: Pinix, Matthew S., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison; Remington, Christine A., Madison

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