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COURT OF APPEALS DECISION DATED AND RELEASED July 11, 1996 |
NOTICE |
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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. 95-0508-CR
No. 95-0509-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SHAWN R. COLEMAN,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Rock County:
J. RICHARD LONG, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
PER
CURIAM. Shawn R. Coleman appeals from a postconviction order
denying his motion for sentence modification.
The issue is whether the discoveries that Coleman's mental disorder is
treatable and may have contributed to his criminal conduct constitute new
factors entitling him to sentence modification. We conclude that the treatability of Coleman's disorder does not
frustrate the purpose of the original sentence and that he has not proven, by
clear and convincing evidence, that his mental disorder contributed to his
criminal conduct. Therefore we affirm.
Coleman was convicted of
operating a motor vehicle without the owner's consent (OMVWOC), recklessly
endangering safety, and two burglaries.
The trial court imposed two concurrent eleven-year sentences on the
OMVWOC and reckless endangering convictions.
On the burglary convictions, it imposed but stayed two concurrent
ten-year sentences and ordered two concurrent ten-year terms of probation to
run consecutive to the other sentences.
Although defense counsel recommended that all of these sentences run
concurrently, he agreed with the presentence investigator that imposition of
the maximum sentences was appropriate.
Consequently, the trial court deviated from defense counsel's sentencing
recommendation only by imposing the burglary sentences consecutive to the other
sentences.
The presentence
investigation report mentioned that Coleman had been treated for depression and
had problems controlling his anger.[1] The investigator concluded that Coleman
"feels fine now and feelings of depression ceased ...." Coleman confirmed to the sentencing court
that he "ha[s] no depression ... [but has] an anger control problem." Eighteen months after sentencing, Coleman
moved for sentence modification on a new factor, namely, that he was mentally
ill, and that illness is treatable and had contributed to his criminal
conduct. The trial court concluded that
Coleman had not established a new factor which would entitle him to sentence
modification. We agree.
The trial court is
empowered to modify its sentence if (1) the defendant demonstrates, by clear
and convincing evidence, that there is a new factor, and (2) that the new
factor justifies sentence modification.
State v. Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609, 611
(1989). 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.
Rosado
v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69, 73 (1975). "The new factor must be an event or
development that `frustrates the purpose of the original
sentencing.'" State v.
Johnson, 158 Wis.2d 458, 466, 463 N.W.2d 352, 356 (Ct. App. 1990). "There must be some connection between
the factor and the sentencing--something which strikes at the very purpose for
the sentence selected by the trial court." State v. Michels, 150 Wis.2d 94, 99, 441 N.W.2d
278, 280 (Ct. App. 1989).
"Whether a set of
facts is a `new factor' is a question of law which we review without deference
to the trial court. Whether a new
factor warrants a modification of sentence rests within the trial court's
discretion." Michels,
150 Wis.2d at 97, 441 N.W.2d at 279 (citation omitted).
The postconviction court
read its sentencing transcript aloud to demonstrate that it was aware of
Coleman's problems with depression. It
also noted that medication, administered while in prison, ameliorated his
depression. The postconviction court
was unpersuaded that it had relied on inaccurate information or had overlooked
relevant information when it originally sentenced Coleman. It concluded that nothing Coleman presented
in his modification motion "in any way frustrate[d] the purpose of
original sentencing." We agree.
Although Coleman filed
additional psychological reports with the postconviction court to demonstrate
that his mental disorder is treatable, the sentencing court was aware that he
had responded favorably to treatment in the past. While the sources of this information may have changed, the
treatability of his condition has not.
The sentencing court had concluded that Coleman's treatment needs would
be more suitably met in a correctional institution than in a community
facility. We agree with the trial court
that Coleman has not presented any new information about his treatability which
"frustrate[d] the purpose of [the] original sentenc[e]." Moreover, Coleman has not persuaded us, by
clear and convincing evidence, that his mental problems contributed to his
criminal conduct.[2]
By the Court.--Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.