Sentence Modification: New Factor, Generally

State v. Wayne Delaney, 2006 WI App 37

Pro se

Issue/Holding:

¶7 To have his sentence modified, Delaney must overcome two hurdles. First, he must demonstrate that a new factor exists. If so, he next must demonstrate that the new factor warrants sentence modification. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor is a question of law this court decides without deference to the circuit court’s determination. Id. Whether the new factor warrants sentence modification, however, is a matter we entrust to the circuit court’s discretion. Id.

¶8 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. Id. The effect of the “new factor” must frustrate the purpose of the original sentencing. State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989).