COURT OF APPEALS DECISION DATED AND FILED July 29, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Avery D. Shelton, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Wedemeyer,[1] Fine and Kessler, JJ.
¶1 PER CURIAM. Avery D. Shelton appeals from an
order denying his sentence modification motion.
The issue is whether the presumptive mandatory release statute, Wis. Stat. § 302.11(1g) (created
April 21, 1994), constitutes a new sentencing factor warranting sentence
modification.[2] We conclude that the trial court was aware of
the current applicable law, namely the presumptive mandatory release statute,
when it sentenced
¶2
¶3 On April 21, 1994, Wis.
Stat. § 302.11(1g) became effective, which altered the mandatory
release law insofar as offenders convicted of certain specified crimes that
occurred between April 21, 1994 and December 31, 1999, were now only presumed
to be entitled to release from prison on the applicable mandatory release date
because the offenders were now also subject to the parole commission’s approval.
See
§ 302.11(1g)(am) and (b). Thus,
the homicide that
¶4
¶5 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.”
The
existence of a new factor must be shown by clear and convincing evidence. Franklin, 148
State v. Delaney, 2006 WI
App 37, ¶9, 289
¶6 The trial court did not
mention parole eligibility or the presumptive mandatory release date in its
sentencing remarks. The following
remarks of the trial court when it sentenced
The
defendant went from exposure of life imprisonment with a parole eligibility
date probably in – when he was 70 or 80 to a maximum prison term of 40
years. The State felt due to the
evidence this was in the State’s best interest and the Court accepted a plea,
but it’s still a homicide case. It’s the
most serious crime a person can be charged with in the State of
In
fact, in
In addressing
The
matrix here calls for 120 to 240 months and [the trial court] believe[s] that
is inadequate under the circumstances.
[The trial court] believe[s] there are aggravating circumstances,
specifically how the incident happened, specifically that [the victim] was shot
in the back, specifically the attitude of [
It’s great to say you’re remorseful but [the trial court] just question[s] the validity of it; but [the trial court] can’t immediately just say you get the maximum.…
[The trial court] ha[s] to reject the contention of [the defense] attorney that 20 years is adequate. As far as the victim’s family’s concerned, the maximum sentence, 40 years, is inadequate. As far as [Shelton’]s family is concerned, the maximum would be unduly harsh, and [the trial court] ha[s] to weigh all the facts and circumstances here…[the trial court] also ha[s] to take in consideration that this case could have gone to trial … and you could have been convicted of first degree intentional homicide, and if convicted, you probably … would have been in prison for most of your life.
[The trial court] believe[s] the most appropriate sentence under the circumstances is to sentence you in excess of the matrix for the reasons stated on the record, the recommendation of the D.A. and the manner in which the victim was killed in this case. So [the trial court] can’t accept the matrix and … sentence[s] you in excess of it but not to the maximum.
¶7 We conclude that the substance of the trial court’s
sentencing remarks, and its failure to mention
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).
[1] This opinion was circulated and approved before Judge Wedemeyer’s death.
[2] Wisconsin Stat. § 302.11 was amended effective April 21, 1994, at which time subsection (1g) was also created. All references to § 302.11 are to the foregoing applicable version of the Wisconsin Statutes.
We use the phrases presumptive mandatory release statute and Wis. Stat. § 302.11(1g) interchangeably.