COURT OF APPEALS DECISION DATED AND RELEASED July 5, 1995 |
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
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No. 94-2473-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK CIANCIOLO,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DIANE S. SYKES, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Mark Cianciolo appeals from a judgment of
conviction for two counts of operating an auto without the owner's consent,
following his guilty plea, and for one count of fleeing an officer, following
his no contest plea. He also appeals
from an order denying his motion for sentence modification. Cianciolo seeks sentence modification on the
basis of an alleged new factor or, alternatively, an evidentiary hearing on his
mental condition. We affirm.
Cianciolo
was sentenced to four years' imprisonment, receiving two-year consecutive
prison terms on each of the operating-without-owner's-consent charges. A nine-month sentence was imposed and stayed
on the fleeing count, with probation to run consecutively.
After sentencing,
Cianciolo brought a motion seeking sentence modification, arguing that his
alleged mental illness constituted a “new factor” justifying sentence
modification. Cianciolo claimed that
his condition led him to boast to the presentence investigator about committing
twenty car thefts, retail fraud offenses, and selling drugs. After he received a longer sentence than he
expected to receive, Cianciolo argued that he may not have committed those
crimes after all. Cianciolo also
claimed that the trial court unfairly sentenced him on the basis of his
admissions to the presentence investigator.
The trial court, which
was also the sentencing court, denied Cianciolo's motion without a
hearing. In a thorough and
well-reasoned written decision, the trial court concluded that Cianciolo's
alleged mental illness was not a “new factor,” and, alternatively, that
Cianciolo's alleged mental illness did not justify sentence modification even
if it qualified as a “new factor.” Cianciolo appeals.
A
defendant seeking sentence modification must demonstrate by clear and
convincing evidence the existence of a “new factor.” State v. Michels, 150 Wis.2d 94, 96-97, 441 N.W.2d
278, 279 (Ct. App. 1989). A new factor
has been defined 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.” Rosado v. State,
70 Wis.2d 280, 288, 234 N.W.2d 69, 73 (1975).
Whether a new factor exists is a question of law to be reviewed de
novo. Michels, 150
Wis.2d at 97, 441 N.W.2d at 279.
The existence of a new
factor alone, however, does not justify sentence modification. A new factor justifies sentence modification
only if it “frustrates the purpose of the original sentence.” Id. at 99, 441 N.W.2d at
280. The determination of whether the
new factor justifies sentence modification rests within the discretion of the trial
court. State v. Hegwood,
113 Wis.2d 544, 546, 335 N.W.2d 399, 401 (1983). We review the trial court's decision under the erroneous exercise
of discretion standard. See State
v. Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609, 611 (1989).
The trial court
correctly determined that Cianciolo's alleged mental illness did not constitute
a new factor justifying sentence modification.
At several points in proceedings before the trial court, Cianciolo
denied being mentally ill or having a history of mental illness. Although he told the trial court he was
taking Thorazine to be able to sleep, he denied that he had any history of
mental illness. The presentence
investigation report, however, detailed Cianciolo's mental history.
In support of his “new
factor” claim, Cianciolo submitted a psychiatric report by Dr. Donald
Feinsilver. Dr. Feinsilver's report
chronicles Cianciolo's history of mental illness and treatment. It also notes Cianciolo's cocaine and
alcohol abuse. The report diagnoses
Cianciolo as being “mentally ill,” with a bipolar disorder, and cocaine and
alcohol abuse. Dr. Feinsilver's report
also stated that Cianciolo explained having made allegedly inaccurate
representations to the presentence investigator about the exact number of cars
he had stolen:
Although
he said he was uncertain as to why he said that, he then said “I was ‘clowning'
... I knew for sure I was going to get probation.”
Dr.
Feinsilver's report further stated:
I, of
course, do not know what crimes Mr. Cianciolo
may or may not have committed.
Perhaps he did previously steal cars.
I do not know. But it may well
be that his statements were more-indicative of underlying mental illness than
those statements typically made by skillful car thieves. Whether true or false, the statements
certainly give psychiatric information about his affective state at the time
and about his judgement. It may well
have been that because of mania Mr. Cianciolo simply could not stop talking,
and spoke in a gradios [sic] manner.
Dr.
Feinsilver's report is not significantly different from the information in the
presentence report. The presentence
report contained much of the same information about Cianciolo's mental health
history, his addictions and past treatment efforts. Thus, the trial court was aware of Cianciolo's history of mental
and emotional problems at the time it sentenced him. The trial court correctly determined that no new factor exists.[1]
As part of a due process
claim that he was sentenced on allegedly inaccurate information, Cianciolo
argues that the trial court should have granted his request for an evidentiary
hearing. We disagree. Nothing in Cianciolo's postconviction
submissions demonstrates the existence of facts that, if accepted, would
entitle him to an evidentiary hearing. See
Nelson v. State, 54 Wis.2d 489, 497-498, 195 N.W.2d 629, 633
(1972). Dr. Feinsilver's report states
that Cianciolo may have committed the crimes, but that there was no way for Dr.
Feinsilver to know. Additionally,
Cianciolo has never retracted the statements he made to the presentence
investigator. In short, Cianciolo has
not met the burden to demonstrate the need for an evidentiary hearing.
Moreover,
the record demonstrates no prejudice to Cianciolo even assuming the alleged
inaccuracy of Cianciolo's remarks to the presentence writer. See State v. Littrup,
164 Wis.2d 120, 132, 473 N.W.2d 164, 168 (Ct. App. 1991) (defendant alleging
due process sentence violation must show inaccurate evidence used at sentencing
was prejudicial). The trial court
clearly explained its decision regarding the length of Cianciolo's
sentences. The trial court focused on
the severity of each of the three crimes to which Cianciolo pled, Cianciolo's
character and his potential for rehabilitation, and the interests of the
community. The trial court also noted
that: 1) Cianciolo's parents installed
a burglar alarm and numerous locks in their house to prevent him from breaking in;
2) despite Cianciolo's claims that he had no outstanding bills, Cianciolo's
father showed the presentence writer numerous bills and collection letters that
had been sent to his parents' house; and 3) Cianciolo had unsuccessfully been
through drug treatment. The trial court
further stated, “I think I agree with your father's characterization of you,
which is that you are a con artist.”
Cianciolo has shown no prejudice as a result of his statements to the
presentence investigator.[2]
In conclusion, the trial
court properly denied Cianciolo's motions for sentence modification and an
evidentiary hearing.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Because the trial court correctly determined that Cianciolo's alleged mental illness did not constitute a new factor, we need not address whether it would have justified sentence modification. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).
[2] Cianciolo also offers a rather confused “erroneous exercise of sentencing discretion” argument. For the same reasons set forth in our analysis of Cianciolo's due process claim, we conclude that the trial court did not erroneously exercise its sentencing discretion. See State v. Littrup, 164 Wis.2d 120, 126, 473 N.W.2d 164, 166 (Ct. App. 1991) (reviewing court will uphold sentence absent an erroneous exercise of discretion).