COURT OF APPEALS DECISION DATED AND RELEASED August 20, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 96-0165-CR &
96-0166-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARIO F. BLASNIG,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Milwaukee County: JOHN A. FRANKE, Judge. Affirmed.
WEDEMEYER, P.J.[1] Mario F. Blasnig appeals from judgments of
convictions entered after he pled guilty to endangering safety by reckless use
of a weapon and resisting an officer, contrary to §§ 941.21(a) and
946.41(1), Stats. He also appeals from an order denying his
postconviction motion seeking sentence modification.[2] Blasnig claims the trial court erred in
denying his motion seeking sentence modification because new factors existed
justifying modification of his sentence.
Because no new factors existed, this court affirms.
I. BACKGROUND
Pursuant to a plea
agreement, on January 3, 1994, Blasnig pled guilty to one count of
endangering safety by reckless use of a weapon and one count of resisting an
officer. The trial court found Blasnig
guilty and judgment was entered.
Sentencing, however, was withheld and Blasnig was placed on two years
probation.
In December of 1994,
Blasnig's probation agent began revocation proceedings for violation of his
probation. As a result, Blasnig was
sentenced on the above referenced convictions on May 4, 1995. The trial court sentenced him to six months
in jail on the endangering safety count and six months in jail (to be served
consecutively) on the resisting an officer count.
In December 1995,
Blasnig filed a postconviction motion seeking sentence modification, claiming
new factors existed which justify reducing his sentence. The trial court denied Blasnig's motion. Blasnig now appeals.
II. DISCUSSION
Blasnig claims that his
civil commitment and treatment with medication, both of which occurred
post-sentencing in this case, constitute a new factor justifying reduction of
his sentence. In essence, he argued
that because of this mental health treatment, he no longer posed a danger to
the community. The trial court ruled
that such did not constitute a new factor.
This court agrees.
A sentence can be
modified to reflect consideration of a new factor. State v. Macemon, 113 Wis.2d 662, 668, 335
N.W.2d 402, 406 (1983). A new factor is
a fact that is highly relevant to the imposition of sentence, but was not known
to the sentencing judge either because it did not exist or because the parties
unknowingly overlooked it. Id. There must also be a nexus between the new
factor and the sentence, i.e., the new factor must operate to frustrate the
sentencing court's original intent when imposing sentence. State v. Michels, 150
Wis.2d 94, 99, 441 N.W.2d 278, 280 (Ct. App. 1989). Whether a new factor exists presents a
question of law which this court reviews de novo. Michels, 150 Wis.2d at 97,
441 N.W.2d at 279. Further, it is
the defendant's burden to show by clear and convincing evidence that a new
factor exists that would warrant sentence modification. State v. Littrup, 164
Wis.2d 120, 131, 473 N.W.2d 164, 168 (Ct. App. 1991).
This court concludes
that Blasnig has failed to satisfy that burden. This court rejects Blasnig's assertion that the mental health
treatment he received post-sentencing, including use of medication to modify
his behavior, constitutes a new factor.
A defendant's post-sentencing conduct does not constitute a new
factor. State v. Ambrose,
181 Wis.2d 234, 240, 510 N.W.2d 758, 761 (Ct. App. 1993). Therefore, Blasnig's subsequent mental
health treatment is not “a fact that is highly relevant to the imposition of
sentence.” Further, a post-sentencing
finding that a defendant's behavior was treatable and that the defendant was
responding favorably to treatment are not new factors for sentence modification
purposes. State v. Prince,
147 Wis.2d 134, 136, 432 N.W.2d 646, 647 (Ct. App. 1988); State v.
Krueger, 119 Wis.2d 327, 335, 351 N.W.2d 738, 742 (Ct. App. 1984).
Accordingly, this court
rejects Blasnig's claims that his subsequent mental health treatment and his
use of medication to modify his behavior constitute a new factor justifying
sentence modification. Therefore, this
court affirms the judgments of conviction and the order denying postconviction
relief.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] By order dated April 16, 1996, this court granted Blasnig's motion to consolidate cases numbered 96-0165-CR (appeal from the resisting an officer conviction) and 96-0166-CR (appeal from the endangering safety conviction). Although each case generated a separate judgment, only one order was entered on the postconviction motion because the trial court heard the cases together.