State v. Garland H. Hampton

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COURT OF APPEALS DECISION DATED AND FILED NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. May 15, 2012 A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62. Diane M. Fremgen Clerk of Court of Appeals Appeal No. Cir. Ct. No. 1994CF943992 2011AP1393-CR STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. GARLAND H. HAMPTON, DEFENDANT-APPELLANT. APPEAL from an order of the circuit court for Milwaukee County: REBECCA F. DALLET, Judge. Affirmed. Before Curley, P.J., Kessler and Brennan, JJ. ¶1 PER CURIAM. Garland H. Hampton, pro se, appeals from an order denying his postconviction motion for resentencing based on a new factor. The circuit court denied the motion, concluding that there was no new factor and No. 2011AP1393-CR that the motion was procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We agree and affirm. BACKGROUND ¶2 In 1995, then sixteen-year-old Hampton was convicted of first- degree intentional homicide while armed as party to a crime. He was sentenced to life imprisonment with parole eligibility beginning in 2015. His conviction was upheld on appeal. See State v. Hampton, 207 Wis. 2d 367, 558 N.W.2d 884 (Ct. App. 1996). Hampton has since made several other attempts at relief, including a 2010 motion filed pursuant to WIS. STAT. § 974.06 (2009-10).1 The circuit court denied the motion, we affirmed, and the supreme court denied the petition for review on May 24, 2011. ¶3 On May 3, 2011, Hampton filed in the circuit court the motion for sentence modification underlying this appeal. That motion was based on an alleged new factor, though on appeal, Hampton s main brief does not identify what he argued the new factor to be. We have, however, reviewed the postconviction motion itself and, in short, Hampton contended that there is new [scientific] evidence regarding adolescent brain development that bears on distinctly diminished culpability of children and adolescents. He further asserted that such evidence would demonstrate that his adolescent culpability ¦ is far less than what could justify a sentence of life imprisonment. 1 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted. 2 No. 2011AP1393-CR ¶4 The circuit court denied the motion, noting that the same factor could have been raised in the 2010 motion Hampton was relying, in part, on Roper v. Simmons, 543 U.S. 551 (2005), a case available well before either motion.2 Therefore, the circuit court reasoned, Hampton had not shown a new factor and the motion was procedurally barred because Hampton offered no reason for failing to raise the issue in his prior motion. Hampton moved for reconsideration, but the circuit court also denied that motion. Hampton appeals. DISCUSSION ¶5 Despite other procedural bars that may exist, a circuit court may modify a sentence if the defendant shows a new factor that warrants modification. See State v. Harbor, 2011 WI 28, ¶¶35, 51, 333 Wis. 2d 53, 797 N.W.2d 828. A new factor is a fact or 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 the parties. Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (reaffirmed by Harbor, 333 Wis. 2d 53, ¶¶40, 52). 2 In rejecting the motion, the circuit court noted that the case record was still with this court following the appeal of the denial of the 2010 motion. When the record for a case is transmitted to the court of appeals, a circuit court may act only as provided by statute. See WIS. STAT. § 808.075(1)-(4). Hampton points out that under § 808.075(4)(g)6., the circuit court was permitted to act on a sentence modification request even if the record was with this court. WISCONSIN STAT. § 808.075(4)(g)6. merely provides that the circuit court may act on a sentence modification motion while an appeal is pending; it does not require the circuit court to do so. Indeed, in some instances, the lack of the record may hamper a circuit court s ability to decide a matter, the permissions of § 808.075 notwithstanding. We need not address this part of the circuit court s order any further. 3 No. 2011AP1393-CR ¶6 The defendant has the burden to demonstrate by clear and convincing evidence the existence of a new factor. Harbor, 333 Wis. 2d 53, ¶36. Whether facts constitute a new factor is a question of law that this court reviews de novo. See id. If the defendant demonstrates that there is a new factor, the question of whether that new factor warrants sentence modification is committed to the circuit court s discretion. See id., ¶37. ¶7 It is not wholly clear whether the circuit court concluded that there was no new factor because the motion was barred by Escalona or whether it concluded that there was no new factor and the motion was barred by Escalona. Nevertheless, we affirm the circuit court because Hampton s particular theory that certain scientific evidence about juvenile brain development constitutes a new factor has been rejected by both this court and the supreme court. See State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451; State v. McDermott, 2012 WI App 14, 339 Wis. 2d 316, 810 N.W.2d 237; see also Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995) (we may affirm on different grounds than those relied upon by circuit court). ¶8 Ninham argued that he was entitled to sentence modification on the grounds that new scientific research regarding adolescent brain development constitutes a new factor[.] Ninham, 333 Wis. 2d 335, ¶87. He was relying in part on magnetic resonance imaging (MRI) studies, see id., just as Hampton did in his postconviction motion. According to Ninham, the studies demonstrated that the brain is not fully developed early in childhood and that making impulsive decisions and engaging in risky behavior is an inevitable part of adolescence. Id. Ninham asserted that this research undermines the circuit court s findings regarding ¦ culpability[.] Id. 4 No. 2011AP1393-CR ¶9 The supreme court rejected this evidence as a new factor because the conclusions reached by the studies were already in existence and well reported by the time Ninham was sentenced in 2000. Id., ¶91. Indeed, United States Supreme Court jurisprudence from 1988 had relied on studies from 1978, meaning the new scientific research regarding adolescent brain development ¦ only confirms the conclusions about juvenile offenders that the Supreme Court had already endorsed as of 1988. Id., ¶92 (citing Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)).3 ¶10 Likewise, McDermott argued that the recent realization in the scientific community that adolescents are generally impulsive and often have trouble making wise choices was a new factor. McDermott, 339 Wis. 2d 316, ¶16. We rejected McDermott s assertion in light of Ninham. See McDermott, 339 Wis. 2d 316, ¶18. ¶11 In short, then, the notion that juveniles brains function differently than the brains of adults is not a new factor. For that reason, it was not error for the circuit court to deny Hampton s motion for sentence modification. ¶12 That Hampton s evidence was not a new factor would not necessarily be fatal to his motion but for the fact that Hampton has pursued prior postconviction motions and appeals. Thus, the circuit court had also invoked the procedural bar of Escalona, noting that the scientific-evidence claim could have been raised in the 2010 motion. We agree: to the extent that Hampton s current 3 Roper v. Simmons, 543 U.S. 551 (2005), the case on which Hampton heavily relied in his postconviction motion, discussed and adopted the reasoning of Thompson v. Oklahoma, 487 U.S. 815 (1988). See Roper, 543 U.S. at 570-72. 5 No. 2011AP1393-CR claim for relief does not satisfy the new factor test, he offers no sufficient explanation to the circuit court or this court for his failure to raise the claim in a prior motion or appeal. See WIS. STAT. § 974.06(4); Escalona, 185 Wis. 2d at 181-82. Thus, the claim is now barred. By the Court. Order affirmed. This opinion shall not be published. 809.23(1)(b)5. 6 See WIS. STAT. RULE

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