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COURT OF APPEALS DECISION DATED AND RELEASED October 31, 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. 95-1715-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LARRY L. MC AFFEE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Dane County: ROBERT R. PEKOWSKY, Judge.
Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Larry McAffee appeals from a judgment and
postconviction order denying his sentence modification motion.[1] Because we conclude that McAffee failed to
make a prima facie showing that a "new factor" existed, we
affirm.
BACKGROUND
During
the afternoon and night of November 25, 1992, McAffee consumed six to seven
ounces of brandy. He also smoked two
rocks of crack cocaine. After becoming
intoxicated, he went to a Burger King around midnight and committed a robbery
with his hand stuck in his pants to simulate a gun. He committed a similar robbery at an Ember's restaurant around
3:30 in the morning of November 26, 1992.
McAffee was charged with
two counts of armed robbery and pleaded no contest. McAffee was sentenced to two eight-year sentences, consecutive to
one another and consecutive to other sentences he became liable to serve
because of parole violations. In 1994,
McAffee became aware that his girlfriend had put LSD into his beer on the night
of November 25, 1992. McAffee moved the
circuit court to modify his sentence based on the previously unknown factor of
involuntary LSD intoxication. The court
denied his motion without a hearing.
STANDARD OF REVIEW
In
order to prevail on a motion to modify sentence, a defendant must demonstrate
by "clear and convincing evidence" that a "new factor"
exists unknown to any party at the time of sentencing, and the circuit court
must agree that the new factor warrants sentence modification. State v. Franklin, 148 Wis.2d
1, 8-9, 434 N.W.2d 609, 611-12 (1989).
The new factor must be not only previously unknown, but must strike 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).
It is within a circuit court's discretion whether to hear a sentence
modification motion. See Cresci
v. State, 89 Wis.2d 495, 506, 278 N.W.2d 850, 855 (1979). Whether facts constitute a "new
factor" is a question of law, which we review de novo. Michels, 150 Wis.2d at 97, 441
N.W.2d at 279.
ANALYSIS
McAffee argues that
involuntary LSD intoxication is a defense to criminal liability. Under § 939.42, Stats., involuntary intoxication by alcohol or drugs is a
defense to criminal liability.[2] Intoxication is involuntary where it is
perpetrated by force or fraud by a third party. Loveday v. State, 74 Wis.2d 503, 511-12, 247 N.W.2d
116, 122 (1976).
In support of his
modification motion, McAffee attached an affidavit by a psychologist. In the psychologist's evaluation, the amount
of alcohol and crack cocaine McAffee had consumed made it reasonable to assume
McAffee was "highly intoxicated" when he set off on his spree. However, based in part on McAffee's own
report that previous LSD ingestion had not caused loss of control or
hallucinations, the contribution of LSD to his criminal behavior "cannot
be determined to the requisite degree of professional certainty."
In light of this
conclusion, we affirm. Although McAffee
presented evidence that he had involuntarily ingested an unknown amount of LSD,
McAffee did not present to the circuit court "clear and convincing
evidence" that a "new factor" existed which "strikes at the
very purpose" of the sentence previously imposed. In the absence of any showing as to how much
LSD he unknowingly ingested and in the absence of any showing that the LSD made
his condition worse[3] than the
"high" degree of intoxication he had voluntarily achieved with
alcohol[4]
and crack cocaine, the LSD was not a "new factor" in the legal
sense.
Because McAffee's motion
was undercut by his own psychologist's affidavit, McAffee did not make a prima
facie showing that a new factor existed.
Therefore, the circuit court did not erroneously exercise its discretion
in failing to conduct a hearing.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Although McAffee styles his appeal as one of the sentence and of the adverse postconviction order, his real challenge is to the postconviction order denying sentence modification.
[2] Section 939.42, Stats., reads:
Intoxication.
An intoxicated or a drugged condition of the actor is a
defense only if such condition:
(1) Is involuntarily produced and renders
the actor incapable of distinguishing between right and wrong in regard to the
alleged criminal act at the time the act is committed; or
(2) Negatives the existence of a state of mind essential to the crime, except as provided in s. 939.24 (3).
[3] McAffee's girlfriend submitted an affidavit which stated that about one hour after she slipped him the LSD, his behavior became erratic and unusual. However, in light of the other intoxicants then in McAffee's system, such an observation, standing alone, is not unexpected and does not substantiate a finding of a "new factor."