Opinion
No. 2014AP2298–CR.
2015-07-31
STATE of Wisconsin, Plaintiff–Respondent, v. Larry D. MITCHELL, Defendant–Appellant.
The court also questioned how probation could even be considered. It stated, “What would they tell him to do? What could they do for him? How can they habilitate him? I just don't know where to start with ... Mitchell.” The court concluded, “I don't think the community services have been fully tried but I don't think they're up to the needs of ... Mitchell.” The court then ordered ten years' imprisonment, consisting of five years' initial confinement and five years' extended supervision. Id., ¶ 40 (quoting Rosado v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69 (1975)). Deciding a motion for sentence modification based on a new factor is a two-step inquiry. Id., ¶ 36, 234 N.W.2d 69. The defendant has the burden to demonstrate by clear and convincing evidence the existence of a new factor. Id. Whether the proffered fact or set of facts constitutes a new factor is a question of law. Id. The existence of a new factor does not, however, automatically entitle the defendant to sentence modification. Id., ¶ 37, 234 N.W.2d 69. Rather, if a new factor is present, the circuit court determines in its discretion whether that new factor justifies sentence modification. Id.