COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 4, 1997 |
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. |
No. 96-1181-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
FRANK W. JAKUBIEC,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Kewaunee County:
DENNIS J. MLEZIVA, Judge. Affirmed.
Before Cane, P.J., Myse
and Carlson, JJ.
PER
CURIAM. Frank Jakubiec appeals an order denying his motion to
modify his sentence based on a "new factor." Because Jakubiec failed to establish a new
factor, we affirm the order.
Jakubiec entered no
contest pleas to four crimes: attempted
first-degree intentional homicide, felon in possession of a firearm, burglary
and forgery. He was sentenced to ten
years in prison followed by five years' probation. In his motion to modify his sentence based on new factors, he
contends that recent discovery of a mental illness, bi-polar disorder, and his
psychiatrist's testimony that this disorder is effectively treated with lithium
and that his prognosis is excellent constitutes a new factor justifying a
reduction in his sentence.
The burden is on
Jakubiec to demonstrate the existence of a new factor by clear and convincing
evidence. State v. Franklin,
148 Wis.2d 1, 8-9, 434 N.W.2d 609, 611 (1989).
This court reviews the set of facts presented by Jakubiec without
deference to the trial court to determine whether he has established a new
factor. See State v.
Hegwood, 113 Wis.2d 544, 546-47, 335 N.W.2d 399, 400 (1983).
A "new factor"
is a fact or set of facts highly relevant to the imposition of sentence, but
unknown to the trial judge at the time of the 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. at 547, 335 N.W.2d at 401. To qualify as a new factor, Jakubiec's
undiagnosed mental illness must be an event or development that frustrates the
purpose of the original sentence. State
v. Michels, 150 Wis.2d 94, 99, 441 N.W.2d 278, 280 (Ct. App.
1989). There must be some connection
between the factor and the sentence--something that strikes at the very purpose
for the sentence selected by the trial court.
Id.
Jakubiec's undiagnosed
mental illness does not constitute a new factor. The sentence was based in part on Jakubiec's need for
rehabilitation services. The trial
court expected that his problems would be diagnosed and treated in the
prison. The diagnosis of his mental
illness and the treatment fulfill, not frustrate, the trial court's sentencing
expectations. In addition, Jakubiec
failed to prove any connection between his mental illness and the crimes he
committed. As the trial court noted, it
is hard to attribute the widely divergent types of crimes Jakubiec committed
with his mental illness. In the absence
of a clear nexus between the crimes and the illness, the diagnosis of the
mental illness does not constitute a new factor.
Finally, Jakubiec
challenges the trial court's statement that the assaultive nature of the
attempted murder precluded intensive sanctions. The trial court made that statement in its memorandum decision
following the postconviction hearing as it generally summarized its attitude at
the time of sentencing. The statement
does not relate to the trial court's decision to deny the motion based on new
factors, but relates to its initial sentencing decision. The initial sentencing decision is not
before this court on an appeal from an order denying a motion to modify the
sentence based on new factors. To
obtain review of alleged sentencing errors, Jakubiec had to file motions and
appeal under Rule 809.30, Stats.
See State v. Scherreiks, 153 Wis.2d 510, 516, 451
N.W.2d 759, 761 (Ct. App. 1989).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.