District II
January 21, 2015
To:
Hon. David M. Reddy
Circuit Court Judge
Walworth County Courthouse
P.O. Box 1001
Elkhorn, WI 53121
Sheila Reiff
Clerk of Circuit Court
Walworth County Courthouse
P.O. Box 1001
Elkhorn, WI 53121-1001
Daniel A. Necci
District Attorney
P.O. Box 1001
Elkhorn, WI 53121-1001
Sally L. Wellman
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Allen L. Heckert, #285116
Oshkosh Corr. Inst.
P.O. Box 3310
Oshkosh, WI 54903-3310
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Allen L. Heckert (L.C. #1995CF190) |
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Before Brown, C.J., Neubauer, P.J. and Reilly, J.
Allen L. Heckert appeals pro se from
an order denying his motion for sentence modification. Based on our review of the briefs and record, we conclude at
conference that this case is appropriate for summary disposition. See
Wis. Stat. Rule 809.21 (2011-12).[1] We affirm the order of the circuit court.
In February 1997, Heckert was convicted following a no
contest plea to first-degree sexual assault of a child. The circuit court sentenced Heckert to twenty
years in prison.
In April 2014, Heckert filed a motion for sentence
modification on the ground that a new factor existed. The circuit court denied his motion. This appeal follows.
A circuit court may modify a defendant’s sentence upon
a showing of a new factor. See State v. Harbor, 2011 WI 28, ¶35,
333 Wis. 2d 53, 797 N.W.2d 828. The
analysis involves a two-step process.
First, the defendant must demonstrate by clear and convincing evidence
that a new factor exists. Id.,
¶36. Second, the defendant must show
that the new factor justifies sentence modification. Id., ¶¶37-38. 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 … it was unknowingly overlooked by all of the parties.” Id., ¶40 (quoting Rosado
v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975)). Whether a fact or set of facts constitutes a
new factor is a question of law that this court decides independently. See id., ¶33. If the fact or set
of facts do not constitute a new factor as a matter of law, we need go no
further in our analysis. Id., ¶38.
On appeal, Heckert renews his argument that he is
entitled to sentence modification on the basis of a new factor. Specifically, he maintains that the circuit
court sentenced him without knowledge of a change in the law affecting his
mandatory release date.
In 1993, the legislature amended Wis. Stat. § 302.11 to make the mandatory
release date, otherwise established at two-thirds of a sentence, only presumptive
for prisoners who committed certain felonies, including first-degree sexual
assault of a child. 1993 Wis. Act 194. Although this amendment went into effect
nearly three years before his sentencing, Heckert claims that the circuit court
was unaware of it.
We are not persuaded that Heckert has established by
clear and convincing evidence that the circuit court was unaware of this change
in the law. To begin, we presume that
the circuit court knows the law. See Tri-State Mech., Inc. v. Northland Coll.,
2004 WI App 100, ¶10, 273 Wis. 2d 471, 681 N.W.2d 302. Moreover, the circuit court’s comments at
sentencing demonstrate that it was aware of the mandatory release statute as
well as the possibility that the parole commission would deny Heckert’s
presumptive mandatory release.[2] Accordingly,
we conclude that the circuit court properly denied Heckert’s motion.
Upon the foregoing reasons,
IT IS ORDERED that the order of the circuit court is
summarily affirmed, pursuant to Wis.
Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals
[1] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] At one point, the circuit court observed, “The problem with giving [Heckert] a jail term less than the maximum is that if I give him say 10, at the end of 10 years, he’s free of the system. In fact, he’s free of the system earlier than 10 years because if he reaches his minimum mandatory time and gets out on parole, they don’t revoke, they don’t send him back to prison; he’s finished his minimum mandatory time.” (Emphasis added.) The court’s use of the word “if” shows that it did not believe that Heckert’s release on parole was guaranteed.