Wisconsin Statutes & Annotations
Chapter 973 - Sentencing.
973.19 - Motion to modify sentence.

973.19 Motion to modify sentence.
(1)
(a) A person sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts under s. 809.30 (2) may, within 90 days after the sentence or order is entered, move the court to modify the sentence or the amount of the fine.
(b) A person who has requested transcripts under s. 809.30 (2) may move for modification of a sentence or fine under s. 809.30 (2) (h).
(2) Within 90 days after a motion under sub. (1) (a) is filed, the court shall enter an order either determining the motion or extending the time for doing so by not more than 90 days for cause.
(3) If an order determining a motion under sub. (1) (a) is not entered timely under sub. (2), the motion shall be considered denied and the clerk of the court shall immediately enter an order denying the motion.
(4) An appeal from an order determining a motion under sub. (1) (a) is governed by the procedure for civil appeals.
(5) By filing a motion under sub. (1) (a) the defendant waives his or her right to file an appeal or postconviction motion under s. 809.30 (2).
History: Sup. Ct. Order, 123 Wis. 2d xiv (1985); 1991 a. 39.
Judicial Council Note, 1984: This section is intended as an expeditious alternative to the procedure prescribed in s. 809.30 (2) when the only claim for postconviction relief relates to the severity of the sentence. It is not intended to alter the substantive grounds for such relief and it restores the time limits governing such motions prior to the 1978 revision of the appellate rules.
This section will probably be most frequently used in guilty plea cases, although it is not limited to such cases. However, if the defendant intends to withdraw a guilty plea or file other postconviction motions, s. 809.30 (2) or 974.06 provides the appropriate procedure. Motions under this section should usually be filed by trial counsel without the need for transcripts or for appointment of an appellate public defender. A defendant must elect between the remedies provided by this section and s. 809.30 (2). Filing a motion under this section waives relief under s. 809.30 (2). However, a defendant who has filed a notice of intent to pursue postconviction relief under s. 809.30 (2) (b) may invoke this remedy at any time before transcripts are ordered under s. 809.30 (2). If transcripts are required for prosecution of a motion under sub. (1) (a), they should be sought under SCR 71.03 (2).
Sub. (4) does not expand the scope of appellate review. [Re Order effective July 1, 1985.]
The trial court can, on a motion or on its own motion, modify a criminal sentence if the motion is made within 90 days after sentencing. The first judgment should be amended, not vacated. Hayes v. State, 46 Wis. 2d 93, 175 N.W.2d 625 (1970).
Hayes, 46 Wis. 2d 93 (1970), does not impose a jurisdictional limit on the power of a court to review a sentence. Hayes recognized the inherent power in a trial court to review its sentencing. State ex rel. Warren v. Shawano-Menominee County Court, 54 Wis. 2d 613, 197 N.W.2d 1 (1972).
The trial court's increase of the defendant's sentence based solely on “reflection" did not constitute a valid basis for modification of a sentence. There was no “new factor" justifying a more severe sentence, a prerequisite for sentence reevaluation. Scott v. State, 64 Wis. 2d 54, 218 N.W.2d 350 (1974).
A reduction in the maximum statutory penalty for an offense is not a “new factor" justifying a postconviction motion to modify the sentence. State v. Hegwood, 113 Wis. 2d 544, 335 N.W.2d 399 (1983).
There are two alternative means to seek modification of a sentence; proceeding under sub. (1) (a) or (b). Under either, a motion must be first made in the trial court. State v. Norwood, 161 Wis. 2d 676, 468 N.W.2d 741 (Ct. App. 1991).
Rehabilitation may not be considered as a “new factor" for purposes of modifying an already imposed sentence. State v. Kluck, 210 Wis. 2d 1, 563 N.W.2d 468 (1997), 95-2238.
A defendant's sentence may be modified if there is some “new factor." Post-sentencing conduct does not constitute a new factor. State v. Scaccio, 2000 WI App 265, 240 Wis. 2d 95, 622 N.W.2d 449, 99-3101.
A defendant subject to a post-probation revocation sentence cannot use sub. (1) (b) and s. 809.30 to raise issues that go to the original judgment, but the defendant may take a direct appeal from a subsequent judgment in order to fully litigate issues initially raised by the resentencing. State v. Scaccio, 2000 WI App 265, 240 Wis. 2d 95, 622 N.W.2d 449, 99-3101.
Under the facts of the case, information presented to the court that had a direct bearing on the length of the sentence that proved to be incorrect was a “new factor" warranting sentence modification. State v. Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, 00-3538. See also State v. Wood, 2007 WI App 190, 305 Wis. 2d 133, 738 N.W.2d 81, 06-1338.
A circuit court has the inherent power to modify a previously imposed sentence after the sentence has commenced, but it may not reduce a sentence merely upon reflection or second thoughts. A court may do so on the basis of new factors or when it concludes its original sentence was unduly harsh or unconscionable. A court's altered view of facts known to the court at sentencing, or a reweighing of their significance, does not constitute a new factor for sentencing purposes but is mere reflection or second thoughts. State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507, 01-0542.
A circuit court should proceed in a fashion similar to that outlined in s. 974.06 (3) when it receives a motion requesting sentence modification. State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507, 01-0542.
A defendant can seek sentence modification in two ways: 1) moving for modification as a matter of right under this section, to assert an erroneous exercise of discretion based on excessiveness, undue harshness, or unconscionability; or 2) moving for discretionary review, invoking the inherent power of the circuit court, which applies only if a new factor justifying sentence modification exists, in which case, the timeliness requirements of this section are inapplicable. State v. Noll, 2002 WI App 273, 258 Wis. 2d 573, 653 N.W.2d 895, 01-3341.
A mental health professional who conducted a psychological assessment of a defendant convicted of sexual assault, which was incorporated into the presentence investigation report and admitted into evidence at the sentencing hearing, had a conflict of interest due to the fact that she had treated the victim in the case. The conflict of interest is a new factor justifying the modification of the sentence. State v. Stafford, 2003 WI App 138, 265 Wis. 2d 886, 667 N.W.2d 370, 02-0544.
A change in the classification of a crime under the 2001 Wis. Act 109 revisions to the sentencing laws was not a new factor for sentence modification purposes. State v. Longmire, 2004 WI App 90, 272 Wis. 2d 759, 681 N.W.2d 354, 03-0300.
The adoption of Truth-in-Sentencing, s. 973.01, did not affect existing “ new factor" jurisprudence. State v. Crochiere, 2004 WI 78, 273 Wis. 2d 57, 681 N.W.2d 524, 02-1809.
The existence of a new factor does not automatically entitle the defendant to relief. The question of whether the sentence warrants modification is left to the discretion of the circuit court. State v. Trujillo, 2005 WI 45, 279 Wis. 2d 712, 694 N.W.2d 933, 03-1463.
A new factor refers to 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. A reduction in the maximum penalty after sentencing is not highly relevant to the imposition of sentence and does not constitute a new factor. State v. Trujillo, 2005 WI 45, 279 Wis. 2d 712, 694 N.W.2d 933, 03-1463.
A defendant's substantial and important assistance to law enforcement after sentencing may constitute a new factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted. State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, 04-0773.
When resentencing based upon a new factor, the court's rationale must clearly reflect the high relevance of the new factor. There must be some connection between the factor and the sentencing, something that strikes at the very purpose for the sentence selected by the trial court. The trial court cannot reduce or increase a sentence upon its reflection that the sentence imposed was harsh or inadequate. State v. Prager, 2005 WI App 95, 281 Wis. 2d 811, 698 N.W.2d 837, 04-0843.
The circuit court's authority to review its decision to determine whether the sentence it imposed is unduly harsh does not include the authority to reduce a sentence based on events that occurred after sentencing. In deciding whether a sentence is unduly harsh, the circuit court's inquiry is confined to whether it erroneously exercised its sentencing discretion based on the information it had at the time of sentencing. A circuit court's authority to modify a sentence based on events that occurred after sentencing is defined by new factor jurisprudence. Because sexual assault in prison is not a new factor under the case law, the circuit court in this case correctly decided that it did not have the authority to modify the sentence based on the assault. State v. Klubertanz, 2006 WI App 71, 291 Wis. 2d 751, 713 N.W.2d 116, 05-1256.
When a defendant seeks modification of the sentence imposed at resentencing, this section and s. 809.30 (2) require the defendant to file a postconviction motion with the circuit court before taking an appeal. These rules on sentence modification apply even though the sentence imposed at resentencing is identical to a previous sentence. The rules apply regardless of whether a defendant challenges the original sentence, a sentence after revocation, or the sentence imposed at resentencing. State v. Walker, 2006 WI 82, 292 Wis. 2d 326, 716 N.W.2d 498, 04-2820.
Once the trial court found that grounds for sentence modification did not exist, particularly with an unrepresented defendant, the trial court should not have converted a motion for sentence modification to a motion for resentencing in the absence of a clear, unequivocal, and knowing stipulation by the defendant. State v. Wood, 2007 WI App 190, 305 Wis. 2d 133, 738 N.W.2d 81, 06-1338.
A defendant has a due process right to be sentenced based on accurate information. The defendant requesting resentencing must prove, by clear and convincing evidence, both that the information is inaccurate and that the trial court relied upon it. Once a defendant does so, the burden shifts to the state to show that the error was harmless. An error is harmless if there is no reasonable probability that it contributed to the outcome. State v. Payette, 2008 WI App 106, 313 Wis. 2d 39, 756 N.W.2d 423, 07-1192.
The Department of Correction's determination that an inmate does not meet the placement criteria for the Challenge Incarceration Program under s. 302.045 does not constitute a new factor for purposes of sentence modification when a trial court has determined at sentencing that the defendant is eligible to participate in the program. Once the trial court has made an eligibility determination, the final placement determination is made by the department. Section 302.045 provides that, if an inmate meets all of the program eligibility criteria, the department “may" place that inmate in the program. It is not the sentencing court's function to classify an inmate to a particular institution or program. State v. Schladweiler, 2009 WI App 177, 322 Wis. 2d 642, 777 N.W.2d 114, 08-3119.
A “new factor" in the context of a motion for sentence modification 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. Frustration of the purpose of the original sentence is not an independent requirement when determining whether a fact or set of facts alleged by a defendant constitutes a new factor. State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828, 09-1252.
The defendant did not show “by clear and convincing evidence that a new factor exists" when asserting that the scientific community recently realized that adolescents are generally impulsive and often have trouble making wise choices, such that the information was a new factor that, if known by the trial court at the time of sentencing, might have resulted in a different parole-eligibility date. Even though the studies proffered may not have been in existence at the time of sentencing, the conclusions reached by the studies were already in existence and well reported by that time. State v. McDermott, 2012 WI App 14, 339 Wis. 2d 316, 810 N.W.2d 237, 10-2232.
When fruits of a defendant's substantial presentence assistance to law enforcement authorities are not known until after sentencing, those fruits, if highly relevant to the imposition of the sentence in light of the factors set forth in Doe, 2005 WI App 68, can constitute a new sentencing factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted. State v. Boyden, 2012 WI App 38, 340 Wis. 2d 155, 814 N.W.2d 505, 11-0977.
Repeal of a program that previously allowed inmates convicted of certain offenses to earn potential reductions in their terms of initial confinement for defined positive behavior was not a new factor justifying sentence modification when the possibility of positive adjustment time was not a factor highly relevant to the sentence imposed. State v. Carroll, 2012 WI App 83, 343 Wis. 2d 509, 819 N.W.2d 343, 11-1922.
A postsentencing report that expresses an opinion different from that of the trial court regarding the objectives of sentencing (protection, punishment, rehabilitation, and deterrence) is nothing more than a challenge to the trial court's discretion and does not constitute a new factor for sentence modification purposes. State v. Sobonya, 2015 WI App 86, 365 Wis. 2d 559, 872 N.W.2d 134, 14-2392.
An error in imposing a parole eligibility date rather than an extended supervision eligibility date was not a new factor that warranted modifying the defendant's sentence. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876.

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