Wisconsin Court of Appeals says post-sentencing assistance to law enforcement is factor.

• Author: Ziemer, David

Byline: David Ziemer

Post-sentencing assistance to law enforcement is a new factor permitting a sentence modification, the Wisconsin Court of Appeals held on March 22.

The defendant, identified only as John Doe, pleaded guilty to carrying a concealed weapon, felon in possession, and felony bail jumping.

At sentencing, the trial court heard the proceeding in chambers and ordered the transcript sealed. The court heard from a member of law enforcement who discussed the defendant's significant assistance in several major investigations that led to numerous arrests and the recovery of weapons and illicit drugs. The trial court sentenced the defendant to a total of four years of confinement, followed by five years of extended supervision.

After sentencing, the defendant provided more information to law enforcement that solved a murder that had previously been considered an accident. The murderer was convicted almost entirely on information supplied by the defendant.

The defendant then filed a motion seeking an order permitting his postconviction motion to be filed under seal, as the sentencing transcript had been sealed and he was therefore prohibited from quoting from the transcript without an order sealing the motion.

The request was denied without an explanation or a hearing. The defendant then filed a postconviction motion, in which he sought a modification of his sentences based on a new factor - the post-sentencing cooperation. Milwaukee County Circuit Court Judge Mary M. Kuhnmuench held that the new information can not be a new factor because "a new factor must be something which existed at the time of sentencing but [was] not known to the trial court."

The defendant appealed, and the court of appeals reversed in a decision by Judge Patricia S. Curley.

The court concluded that the information provided to law enforcement can constitute a new factor, although it was not in existence at the time of the original sentencing.

A "new factor" is defined in Rosado v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69 (1975), as 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."

Also, a new factor must be an event or development that frustrates the purpose of the original sentence. State v. Johnson, 210 Wis. 2d 196, 203, 565...