Sentence Modification

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeffrey Lopez

Case No.: 2018AP1110-CR

Officials: Brash, P.J., Brennan and Dugan, JJ.

Focus: Sentence Modification

Jeffery Lopez appeals his judgment of conviction entered on his guilty plea to felony intimidation of a victim; a charge of physical abuse of a child was dismissed but considered at sentencing. Lopez also appeals an order denying his postconviction motion without a hearing.

In his postconviction motion, Lopez asserted that he was entitled to sentence modification based on a new factor: a doctor’s report regarding the examination of the child allegedly abused, which was not available at the time of sentencing. In its decision denying his motion, the trial court stated that it was aware of the doctor’s opinions at the time of sentencing—a summary of the doctor’s conclusions was included in the complaint—and therefore it was not a new factor. However, the full report from the doctor, which includes some findings that Lopez believes are material to his claim, was first submitted to the court with Lopez’s postconviction motion; thus, the court did not have that full report at the time of sentencing. Therefore, Lopez argues that the court’s determination that there was no new factor was erroneous as a matter of law.

Additionally, Lopez argues that his trial counsel was ineffective at sentencing by failing to present mitigating factors and exculpatory evidence regarding the dismissed child abuse charge. Lopez further asserts that the trial court never reviewed exhibits relating to these claims prior to issuing its decision denying his postconviction motion. He contends that those exhibits were likely not received by the court until after the filing date of its decision, and that it was an erroneous exercise of its discretion to deny his motion without reviewing those exhibits.

We conclude that Lopez has not established that the doctor’s report constitutes a new factor entitling him to sentence modification, nor has he proven that his trial counsel was ineffective. Furthermore, Lopez has not demonstrated that the trial court was obligated to review all of his exhibits prior to issuing its denial of his postconviction motion. Therefore, we affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.