COURT OF APPEALS
DATED AND FILED
January 23, 2013
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
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
Cir. Ct. No. 2009CF42
STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN,
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. CONEN, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
John Doe1 appeals from a judgment of homicide by
intoxicated use of a vehicle and from an order denying his postconviction motion
Because of the nature of this case, this court, on its own motion, has amended the
caption to shield the defendant’s identity. We also order that this court’s file be sealed.
for sentence modification. The defendant argues that assistance provided to law
enforcement in a separate case was a new factor warranting reduction of his
sentence. We affirm.
In 2009, the defendant was convicted of homicide by intoxicated use
of a vehicle for the death of his sister. The defendant received a ten year sentence,
consisting of five years’ initial confinement and five years’ extended supervision.
The conviction resulted in the revocation of the defendant’s extended supervision
in prior cases, thus his ten year sentence was consecutive to his other sentences.
On August 15, 2011, the defendant filed a motion for sentence
modification, based on his assertion that his cooperation with the State pertaining
to the investigation and prosecution of two murders constitutes a new factor.
Specifically, the defendant stated that while in custody (from the time of his arrest
until sentencing), the defendant obtained information implicating his cellmate at
the Milwaukee County Jail in two murders. The defendant stated that he shared
information regarding his cellmate with the police and the district attorney’s
office; that his cellmate was later charged with two counts of first-degree
intentional homicide; and that he (the defendant) was held as a material witness in
the consolidated cases against his cellmate. The defendant also stated that he
received multiple threats from his cellmate as a result of his cooperation with law
enforcement. Although the defendant was held at the Criminal Justice Facility as
a material witness, the State did not call the defendant to testify against his
The State, in opposition to the motion for sentence modification,
argued that because it chose not to call the defendant to testify, the defendant did
not provide any actual assistance to the State and therefore was not entitled to
sentence modification. At a hearing on the motion, the trial court denied the
defendant’s request, finding that the defendant was a non-credible witness whose
testimony would have hurt the State’s case against the cellmate, thereby leading
the State to forgo the defendant’s testimony. As such, the trial court found that the
defendant “wasn’t much of a help to anyone under any of the circumstances.”
This appeal follows.
A trial court may, in its discretion, modify a sentence if the
defendant shows that a new factor exists. See State v. Macemon, 113 Wis. 2d
662, 668, 335 N.W.2d 402, 406 (1983). 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 of the
parties.” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). “Deciding
a motion for sentence modification based on a new factor is a two-step inquiry.”
State v. Harbor, 2011 WI 28, ¶36, 333 Wis. 2d 53, 797 N.W.2d 828. First, the
defendant must “demonstrate by clear and convincing evidence the existence of a
new factor,” which is a question of law. Id. Second, if a new factor is present, the
trial court must determine “whether that new factor justifies modification of the
sentence.” Id., ¶37.
Whether something constitutes a new factor is a question of law we
review de novo, without deference to the trial court; however, whether “a new
factor, if there is one, warrants sentence modification is left to the trial court’s
discretion.” State v. Torres, 2003 WI App 199, ¶6, 267 Wis. 2d 213, 670 N.W.2d
400. In State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, we
addressed “whether post-sentencing substantial assistance to law enforcement is a
new factor.” Id., ¶8. We observed that there is a federal rule which “expressly
authorizes a reduction in a sentence if ‘the defendant, after sentencing, provided
substantial assistance in investigating or prosecuting another person.’”
(citation and footnote omitted).
We adopted five factors, derived from the federal sentencing
guidelines, to assist “in determining whether the post-sentencing assistance
constitutes a new factor[.]” Id., ¶9.
The appropriate reduction shall be determined by the court
for reasons stated that may include, but are not limited to,
consideration of the following:
(1) the court’s evaluation of the significance and
usefulness of the defendant’s assistance, taking into
consideration the government’s evaluation of the assistance
(2) the truthfulness, completeness, and reliability of any
information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to
the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
Id. (citation omitted).
The defendant asserts that the trial court erred in not finding that his
assistance to law enforcement was timely, meaningful and of value.
defendant also contends that his willingness to testify exposed him to the risk of
harm, including threats to his life and his family’s safety, and should have
weighed heavily in favor of sentence modification.
It is undisputed that the defendant alerted law enforcement as to his
knowledge of his cellmate’s crimes and was willing to testify against his cellmate.
However, we agree with the trial court that the defendant has not met the burden
of showing a new factor warranting sentence modification. At the modification
hearing, the prosecutor for the case against the defendant’s cellmate testified that
he chose not to call the defendant to testify because two other witnesses had also
obtained incriminating statements from the cellmate and because the prosecutor
believed the defendant would be a non-credible witness based upon the
defendant’s conduct during the investigation of the vehicular homicide case in
which the defendant was convicted. The trial court then considered the Doe
factors. Although the trial court did not apply the factors seriatim, it considered
them in its explanation as to why, the defendant’s cooperation notwithstanding,
sentence modification was not warranted. Specifically, the trial court found that
because the defendant did not testify in the case against his cellmate, he did not
render substantial assistance in the cellmate’s prosecution. The trial court stated:
[T]he long and short of it is, is that [the defendant] came
forward, gave information that may or may not have been
true that the State believed was consistent with other
matters and information that they had, but [the defendant]
made himself useless as a witness afterwards by becoming
incredible in his underlying case and by lying to the police
originally and dragging the matter out with the lies that he
The trial court also recognized the risks taken by the defendant for
his willingness to testify; however, the overriding factor in the trial court’s
evaluation was the minimal role the defendant’s information appears to have
played. The trial court is the sole judge of the weight to be given to the facts it
finds regarding sentencing. See McCleary v. State, 49 Wis. 2d 263, 281, 182
N.W.2d 512 (1971) (If “facts are fairly inferable from the record, and the [trial
court’s] reasons indicate the consideration of legally relevant factors, the sentence
should ordinarily be affirmed.”).
We conclude that the trial court properly
exercised its discretion because it explained its reasons for determining that,
notwithstanding the fact of the defendant’s assistance, modification was not
warranted because other facts weighed heavily against modification.
For the foregoing reasons, we affirm the trial court.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.