Chapter 973

973.19 Annotation There are two alternative means to seek modification of a sentence: proceeding under sub. (1) (a) or (b). Under either, a motion must be first made in the trial court. State v. Norwood, 161 Wis. 2d 676, 468 N.W.2d 741 (Ct. App. 1991).

973.19 Annotation Rehabilitation may not be considered as a “new factor” for purposes of modifying an already imposed sentence. State v. Kluck, 210 Wis. 2d 1, 563 N.W.2d 468 (1997), 95-2238.

973.19 Annotation A defendant’s sentence may be modified if there is some “new factor.” Post-sentencing conduct does not constitute a new factor. State v. Scaccio, 2000 WI App 265, 240 Wis. 2d 95, 622 N.W.2d 449, 99-3101.

973.19 Annotation A defendant subject to a post-probation revocation sentence cannot use sub. (1) (b) and s. 809.30 to raise issues that go to the original judgment, but the defendant may take a direct appeal from a subsequent judgment in order to fully litigate issues initially raised by the resentencing. State v. Scaccio, 2000 WI App 265, 240 Wis. 2d 95, 622 N.W.2d 449, 99-3101.

973.19 Annotation Under the facts of this case, information presented to the court that had a direct bearing on the length of the sentence that proved to be incorrect was a “new factor” warranting sentence modification. State v. Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, 00-3538. See also State v. Wood, 2007 WI App 190, 305 Wis. 2d 133, 738 N.W.2d 81, 06-1338.

973.19 Annotation A circuit court has the inherent power to modify a previously imposed sentence after the sentence has commenced, but it may not reduce a sentence merely upon reflection or second thoughts. A court may do so on the basis of new factors or when it concludes its original sentence was unduly harsh or unconscionable. A court’s altered view of facts known to the court at sentencing, or a reweighing of their significance, does not constitute a new factor for sentencing purposes but is mere reflection or second thoughts. State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507, 01-0542.

973.19 Annotation A circuit court should proceed in a fashion similar to that outlined in s. 974.06 (3) when it receives a motion requesting sentence modification. State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507, 01-0542.

973.19 Annotation A defendant can seek sentence modification in two ways: 1) moving for modification as a matter of right under this section, to assert an erroneous exercise of discretion based on excessiveness, undue harshness, or unconscionability; or 2) moving for discretionary review, invoking the inherent power of the circuit court, which applies only if a new factor justifying sentence modification exists, in which case, the timeliness requirements of this section are inapplicable. State v. Noll, 2002 WI App 273, 258 Wis. 2d 573, 653 N.W.2d 895, 01-3341.

973.19 Annotation A mental health professional who conducted a psychological assessment of a defendant convicted of sexual assault, which was incorporated into the presentence investigation report and admitted into evidence at the sentencing hearing, had a conflict of interest due to the fact that the professional had treated the victim in the case. The conflict of interest was a new factor justifying the modification of the sentence. State v. Stafford, 2003 WI App 138, 265 Wis. 2d 886, 667 N.W.2d 370, 02-0544.

973.19 Annotation A change in the classification of a crime under the 2001 Wis. Act 109 revisions to the sentencing laws was not a new factor for sentence modification purposes. State v. Longmire, 2004 WI App 90, 272 Wis. 2d 759, 681 N.W.2d 534, 03-0300.

973.19 Annotation The adoption of Truth-in-Sentencing, s. 973.01, did not affect existing “new factor” jurisprudence. State v. Crochiere, 2004 WI 78, 273 Wis. 2d 57, 681 N.W.2d 524, 02-1809.

973.19 Annotation The existence of a new factor does not automatically entitle the defendant to relief. The question of whether the sentence warrants modification is left to the discretion of the circuit court. State v. Trujillo, 2005 WI 45, 279 Wis. 2d 712, 694 N.W.2d 933, 03-1463.

973.19 Annotation A new factor refers to 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. A reduction in the maximum penalty after sentencing is not highly relevant to the imposition of sentence and does not constitute a new factor. State v. Trujillo, 2005 WI 45, 279 Wis. 2d 712, 694 N.W.2d 933, 03-1463.

973.19 Annotation A defendant’s substantial and important assistance to law enforcement after sentencing may constitute a new factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted. State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, 04-0773.

973.19 Annotation When resentencing based upon a new factor, the court’s rationale must clearly reflect the high relevance of the new factor. There must be some connection between the factor and the sentencing, something that strikes at the very purpose for the sentence selected by the trial court. The trial court cannot reduce or increase a sentence upon its reflection that the sentence imposed was harsh or inadequate. State v. Prager, 2005 WI App 95, 281 Wis. 2d 811, 698 N.W.2d 837, 04-0843.

973.19 Annotation The circuit court’s authority to review its decision to determine whether the sentence it imposed is unduly harsh does not include the authority to reduce a sentence based on events that occur after sentencing. In deciding whether a sentence is unduly harsh, the circuit court’s inquiry is confined to whether it erroneously exercised its sentencing discretion based on the information it had at the time of sentencing. A circuit court’s authority to modify a sentence based on events that occur after sentencing is defined by new factor jurisprudence. Because sexual assault in prison is not a new factor under the case law, the circuit court in this case correctly decided that it did not have the authority to modify the sentence based on the assault. State v. Klubertanz, 2006 WI App 71, 291 Wis. 2d 751, 713 N.W.2d 116, 05-1256.

973.19 Annotation When a defendant seeks modification of the sentence imposed at resentencing, this section and s. 809.30 (2) require the defendant to file a postconviction motion with the circuit court before taking an appeal. These rules on sentence modification apply even though the sentence imposed at resentencing is identical to a previous sentence. The rules apply regardless of whether a defendant challenges the original sentence, a sentence after revocation, or the sentence imposed at resentencing. State v. Walker, 2006 WI 82, 292 Wis. 2d 326, 716 N.W.2d 498, 04-2820.

973.19 Annotation Once the trial court found that grounds for sentence modification did not exist, particularly with an unrepresented defendant, the trial court should not have converted a motion for sentence modification to a motion for resentencing in the absence of a clear, unequivocal, and knowing stipulation by the defendant. State v. Wood, 2007 WI App 190, 305 Wis. 2d 133, 738 N.W.2d 81, 06-1338.

973.19 Annotation A defendant has a due process right to be sentenced based on accurate information. The defendant requesting resentencing must prove, by clear and convincing evidence, both that the information is inaccurate and that the trial court relied upon it. Once a defendant does so, the burden shifts to the state to show that the error was harmless. An error is harmless if there is no reasonable probability that it contributed to the outcome. State v. Payette, 2008 WI App 106, 313 Wis. 2d 39, 756 N.W.2d 423, 07-1192.

973.19 Annotation The Department of Correction’s determination that an inmate does not meet the placement criteria for the Challenge Incarceration Program under s. 302.045 does not constitute a new factor for purposes of sentence modification when a trial court has determined at sentencing that the defendant is eligible to participate in the program. Once the trial court has made an eligibility determination, the final placement determination is made by the department. Section 302.045 provides that, if an inmate meets all of the program eligibility criteria, the department “may” place that inmate in the program. It is not the sentencing court’s function to classify an inmate to a particular institution or program. State v. Schladweiler, 2009 WI App 177, 322 Wis. 2d 642, 777 N.W.2d 114, 08-3119.

973.19 Annotation A “new factor” in the context of a motion for sentence modification 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 it was unknowingly overlooked by all of the parties. Frustration of the purpose of the original sentence is not an independent requirement when determining whether a fact or set of facts alleged by a defendant constitutes a new factor. State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828, 09-1252.

973.19 Annotation The defendant did not show “by clear and convincing evidence that a new factor exists” when asserting that the scientific community recently realized that adolescents are generally impulsive and often have trouble making wise choices, such that the information was a new factor that, if known by the trial court at the time of sentencing, might have resulted in a different parole-eligibility date. Even though the studies proffered may not have been in existence at the time of sentencing, the conclusions reached by the studies were already in existence and well reported by that time. State v. McDermott, 2012 WI App 14, 339 Wis. 2d 316, 810 N.W.2d 237, 10-2232.

973.19 Annotation When fruits of a defendant’s substantial presentence assistance to law enforcement authorities are not known until after sentencing, those fruits, if highly relevant to the imposition of the sentence in light of the factors set forth in Doe, 2005 WI App 68, can constitute a new sentencing factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted. State v. Boyden, 2012 WI App 38, 340 Wis. 2d 155, 814 N.W.2d 505, 11-0977.

973.19 Annotation Repeal of a program that previously allowed inmates convicted of certain offenses to earn potential reductions in their terms of initial confinement for defined positive behavior was not a new factor justifying sentence modification when the possibility of positive adjustment time was not a factor highly relevant to the sentence imposed. State v. Carroll, 2012 WI App 83, 343 Wis. 2d 509, 819 N.W.2d 343, 11-1922.

973.19 Annotation A postsentencing report that expresses an opinion different from that of the trial court regarding the objectives of sentencing—protection, punishment, rehabilitation, and deterrence—is nothing more than a challenge to the trial court’s discretion and does not constitute a new factor for sentence modification purposes. State v. Sobonya, 2015 WI App 86, 365 Wis. 2d 559, 872 N.W.2d 134, 14-2392.

973.19 Annotation An error in imposing a parole eligibility date rather than an extended supervision eligibility date was not a new factor that warranted modifying the defendant’s sentence. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876.

973.195 973.195 Sentence adjustment.

973.195(1g) (1g) Definition. In this section, “applicable percentage” means 85 percent for a Class C to E felony and 75 percent for a Class F to I felony.

973.195(1r) (1r) Confinement in prison.

973.195(1r)(a) (a) Except as provided in s. 973.198, an inmate who is serving a sentence imposed under s. 973.01 for a crime other than a Class B felony may petition the sentencing court to adjust the sentence if the inmate has served at least the applicable percentage of the term of confinement in prison portion of the sentence. If an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this subsection.

973.195(1r)(b) (b) Any of the following is a ground for a petition under par. (a):

973.195(1r)(b)1. 1. The inmate’s conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs since he or she was sentenced.

973.195(1r)(b)3. 3. A change in law or procedure related to sentencing or revocation of extended supervision effective after the inmate was sentenced that would have resulted in a shorter term of confinement in prison or, if the inmate was returned to prison upon revocation of extended supervision, a shorter period of confinement in prison upon revocation, if the change had been applicable when the inmate was sentenced.

973.195(1r)(b)4. 4. The inmate is subject to a sentence of confinement in another state or the inmate is in the United States illegally and may be deported.

973.195(1r)(b)5. 5. Sentence adjustment is otherwise in the interests of justice.

973.195(1r)(c) (c) Upon receipt of a petition filed under par. (a), the sentencing court may deny the petition or hold the petition for further consideration. If the court holds the petition for further consideration, the court shall notify the district attorney of the inmate’s petition. If the district attorney objects to adjustment of the inmate’s sentence within 45 days of receiving notification under this paragraph, the court shall deny the inmate’s petition.

973.195(1r)(d) (d) If the sentence for which the inmate seeks adjustment is for an offense under s. 940.225 (2) or (3), 948.02 (2), 948.08, or 948.085, and the district attorney does not object to the petition within 10 days of receiving notice under par. (c), the district attorney shall notify the victim, as defined under s. 950.02 (4), of the inmate’s petition. The notice to the victim shall include information on the sentence adjustment petition process under this subsection, including information on how to object to the inmate’s petition. If the victim objects to adjustment of the inmate’s sentence within 45 days of the date on which the district attorney received notice under par. (c), the court shall deny the inmate’s petition.

973.195(1r)(e) (e) Notwithstanding the confidentiality of victim address information obtained under s. 302.113 (9g) (g) 3., a district attorney who is required to send notice to a victim under par. (d) may obtain from the clerk of the circuit court victim address information that the victim provided to the clerk under s. 302.113 (9g) (g) 3.

973.195(1r)(f) (f) If the sentencing court receives no objection to sentence adjustment from the district attorney under par. (c) or the victim under par. (d) and the court determines that sentence adjustment is in the public interest, the court may adjust the inmate’s sentence as provided under par. (g). The court shall include in the record written reasons for any sentence adjustment granted under this subsection.

973.195(1r)(g) (g) Except as provided under par. (h), the only sentence adjustments that a court may make under this subsection are as follows:

973.195(1r)(g)1. 1. If the inmate is serving the term of confinement in prison portion of the sentence, a reduction in the term of confinement in prison by the amount of time remaining in the term of confinement in prison portion of the sentence, less up to 30 days, and a corresponding increase in the term of extended supervision.

973.195(1r)(g)2. 2. If the inmate is confined in prison upon revocation of extended supervision, a reduction in the amount of time remaining in the period of confinement in prison imposed upon revocation, less up to 30 days, and a corresponding increase in the term of extended supervision.

973.195(1r)(h) (h)

973.195(1r)(h)1. 1. If the court adjusts a sentence under par. (g) on the basis of a change in law or procedure as provided under par. (b) 3. and the total sentence length of the adjusted sentence is greater than the maximum sentence length that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced, the court may reduce the length of the term of extended supervision so that the total sentence length does not exceed the maximum sentence length that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced.

973.195(1r)(h)2. 2. If the court adjusts a sentence under par. (g) on the basis of a change in law or procedure as provided under par. (b) 3. and the adjusted term of extended supervision is greater than the maximum term of extended supervision that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced, the court may reduce the length of the term of extended supervision so that the term of extended supervision does not exceed the maximum term of extended supervision that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced.

973.195(1r)(i) (i) An inmate may submit only one petition under this subsection for each sentence imposed under s. 973.01.

973.195 History History: 2001 a. 109; 2005 a. 253, 277; 2007 a. 97; 2009 a. 28; 2011 a. 38, 258; 2013 a. 168.

973.195 Annotation This section is a remedy that provides the procedure for judicial review of a sentence when the law relating to sentencing changes and is an adequate remedy to address the circumstances resulting from the reduction in penalties under the 2001 Wis. Act 109 revisions to the sentencing laws. State v. Trujillo, 2005 WI 45, 279 Wis. 2d 712, 694 N.W.2d 933, 03-1463.

973.195 Annotation Sub. (1g) sets forth the “applicable percentage” of the term of initial confinement a person must serve before being eligible for sentence adjustment utilizing the felony classification scheme adopted in 2001 Wis. Act 109 and does not indicate how to calculate the “applicable percentage” for a sentence under the scheme adopted in 1997 Wis. Act 283. This problem is remedied by applying the Act 109 felony classification under s. 939.50 to persons sentenced under Act 283 for the limited purpose of determining the applicable percentage of a term of initial confinement in a petition for sentence adjustment. State v. Tucker, 2005 WI 46, 279 Wis. 2d 697, 694 N.W.2d 926, 03-1276.

973.195 Annotation Two concurring/dissenting opinions joined in by the same four justices, read together, hold that “shall” in the last sentence of sub. (1r) (c) is directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under this section. The circuit court must exercise its discretion by weighing the appropriate factors under sub. (1r) (b) 1. when the court reaches its decision on sentence adjustment. State v. Stenklyft, 2005 WI 71, 281 Wis. 2d 484, 697 N.W.2d 769, 03-1533.

973.195 Annotation Sub. (1r) clearly states that if an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under sub. (1r). There is no alternative interpretation; multiple sentences are to be considered separately for the purpose of sentence adjustment. State v. Polar, 2014 WI App 15, 352 Wis. 2d 452, 842 N.W.2d 531, 13-1433.

973.195 Annotation A person serving an enhanced misdemeanor prison term imposed when a defendant is convicted of a misdemeanor and is subject to penalty enhancement, such that a bifurcated sentence under s. 973.01 (1) is a possibility and the court actually chooses to impose prison time, is eligible for sentence adjustment under this section. Because the “applicable percentage” for Class I felonies is 75 percent, and because 75 percent is the lowest “applicable percentage” specified by the legislature, the most reasonable assumption is that the legislature intended that 75 percent applies to enhanced misdemeanants. State v. Anderson, 2015 WI App 92, 366 Wis. 2d 147, 873 N.W.2d 82, 14-0982.

973.195 Annotation The Pendulum Swings: No More Early Release. Brennan. Wis. Law. Sept. 2011.

973.198 973.198 Sentence adjustment; positive adjustment time.

973.198(1) (1) When an inmate who is serving a sentence imposed under s. 973.01 and who has earned positive adjustment time under s. 302.113, 2009 stats., or under s. 304.06, 2009 stats., has served the confinement portion of his or her sentence less positive adjustment time earned between October 1, 2009, and August 3, 2011, he or she may petition the sentencing court to adjust the sentence under this section, based on the number of days of positive adjustment time the inmate claims that he or she has earned.

973.198(3) (3) Within 60 days of receipt of a petition filed under sub. (1), the sentencing court shall either deny the petition or hold a hearing and issue an order relating to the inmate’s sentence adjustment and release to extended supervision.

973.198(5) (5) If the court determines that the inmate has earned positive adjustment time, the court may reduce the term of confinement in prison by the amount of time remaining in the term of confinement in prison portion of the sentence, less up to 30 days, and shall lengthen the term of extended supervision so that the total length of the bifurcated sentence originally imposed does not change.

973.198(6) (6) An inmate who submits a petition under this section may not apply for adjustment of the same sentence under s. 973.195 for a period of one year from the date of the petition.

973.198 History History: 2011 a. 38.

973.198 Annotation The supreme court reversed the court of appeals determination that this section does not violate the constitutional prohibition against ex post facto laws, but did not provide a remedy in this case or remand for relief. State ex rel. Singh v. Kemper, 2016 WI 67, 371 Wis. 2d 127, 883 N.W.2d 86, 13-1724.

973.20 973.20 Restitution.

973.20(1g) (1g) In this section:

973.20(1g)(a) (a) “Crime considered at sentencing” means any crime for which the defendant was convicted and any read-in crime.

973.20(1g)(b) (b) “Read-in crime” means any crime that is uncharged or that is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at the time of sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.

973.20(1r) (1r) When imposing sentence or ordering probation for any crime, other than a crime involving conduct that constitutes domestic abuse under s. 813.12 (1) (am) or 968.075 (1) (a), for which the defendant was convicted, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. When imposing sentence or ordering probation for a crime involving conduct that constitutes domestic abuse under s. 813.12 (1) (am) or 968.075 (1) (a) for which the defendant was convicted or that was considered at sentencing, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime or, if the victim is deceased, to his or her estate, unless the court finds that imposing full or partial restitution will create an undue hardship on the defendant or victim and describes the undue hardship on the record. Restitution ordered under this section is a condition of probation, extended supervision, or parole served by the defendant for a crime for which the defendant was convicted. After the termination of probation, extended supervision, or parole, or if the defendant is not placed on probation, extended supervision, or parole, restitution ordered under this section is enforceable in the same manner as a judgment in a civil action by the victim named in the order to receive restitution or enforced under ch. 785.

973.20(2) (2) 

973.20(2)(am) (am) If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant:

973.20(2)(am)1. 1. Return the property to the owner or owner’s designee; or

973.20(2)(am)2. 2. If return of the property under subd. 1 is impossible, impractical or inadequate, pay the owner or owner’s designee the reasonable repair or replacement cost or the greater of:

973.20(2)(am)2.a. a. The value of the property on the date of its damage, loss or destruction; or

973.20(2)(am)2.b. b. The value of the property on the date of sentencing, less the value of any part of the property returned, as of the date of its return. The value of retail merchandise shall be its retail value.

973.20(2)(bm) (bm) The restitution order may require the department of employee trust funds to withhold the amount determined under par. (am) from any payment of the defendant’s annuity or lump sum under s. 40.08 (1t) and to deliver any amount withheld from the defendant’s annuity or lump sum in accordance with sub. (11) if the crime considered at sentencing satisfies all of the following:

973.20(2)(bm)1. 1. The crime was a violation of ss. 943.20 and 946.12.

973.20(2)(bm)2. 2. The crime resulted in loss of property for the defendant’s employer that participates in the Wisconsin Retirement System.

973.20(2)(bm)3. 3. The value of the property described in subd. 2. exceeds $2,500.

973.20(3) (3) If a crime considered at sentencing resulted in bodily injury, the restitution order may require that the defendant do one or more of the following:

973.20(3)(a) (a) Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric and psychological care and treatment.

973.20(3)(b) (b) Pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation.

973.20(3)(c) (c) Reimburse the injured person for income lost as a result of a crime considered at sentencing.

973.20(3)(d) (d) If the injured person’s sole employment at the time of the injury was performing the duties of a homemaker, pay an amount sufficient to ensure that the duties are continued until the person is able to resume performance of the duties.

973.20(4) (4) If a crime considered at sentencing resulted in death, the restitution order may also require that the defendant pay an amount equal to the cost of necessary funeral and related services under s. 895.04 (5).

973.20(4m) (4m) If the defendant violated s. 940.225, 948.02, 948.025, 948.05, 948.051, 948.06, 948.07, 948.08, or 948.085, or s. 940.302 (2), if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5), and sub. (3) (a) does not apply, the restitution order may require that the defendant pay an amount, not to exceed $10,000, equal to the cost of necessary professional services relating to psychiatric and psychological care and treatment. The $10,000 limit under this subsection does not apply to the amount of any restitution ordered under sub. (3) or (5) for the cost of necessary professional services relating to psychiatric and psychological care and treatment.

973.20(4o) (4o) If the defendant violated s. 940.302 (2) or 948.051, and sub. (2) or (3) does not apply, the restitution order may require that the defendant pay an amount equal to any of the following:

973.20(4o)(a) (a) The costs of necessary transportation, housing, and child care for the victim.

973.20(4o)(b) (b) The greater of the following:

973.20(4o)(b)1. 1. The gross income gained by the defendant due to the services of the victim.

973.20(4o)(b)2. 2. The value of the victim’s services as provided under the state minimum wage.

973.20(4o)(c) (c) Any expenses incurred by the victim if relocation for personal safety is determined to be necessary by the district attorney.

973.20(4o)(d) (d) The costs of relocating the victim to his or her city, state, or country of origin.