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State v. PrinceState v. Prince

Court of Appeals of Wisconsin
Oct 18, 1988
88-0540-CR
Reporters:
, ,
Before:
LaRocque
LaROCQUE, J.

Jаmes Prince appeals an order denying his motion for a sentence modification based on a new factor. Because we conclude that a post-sentence finding that Prince’s sexually deviant behavior wаs treatable is not a new factor, we affirm.

Prince was convicted of one count of first-degree sexual assault, contrary to sec. 940.225(l)(a), Stаts. A presentence report contained two psychologicаl analy-ses of Prince. One recommended that Prince receive treatment for psychiatric and psychological problems, rather ‍‌​​‌​‌‌​​​​​​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​​‌‌​​​​​‌​‌​‌‌​​‌‍than incarceration. The other reported that Prince was not presently treatable because of his narrow and simplistic interpretations of the circumstances prior to the assault. After considering the presentence report, the court sentenced Prince to prison for seven years.

Eleven months later, Prince moved for a sentence modification based on an allegedly new factor that he was indeed trеatable and had responded to treatment while incarceratеd. At a hearing, he presented evidence showing that he had particiрated in sex therapy sessions while in prison and that he was responding pоsitively to them. The court found that the change in Prince’s responsiveness tо treatment was part of the rehabilitation ‍‌​​‌​‌‌​​​​​​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​​‌‌​​​​​‌​‌​‌‌​​‌‍program, not a new factor. Consequently, the court denied Prince’s motion for a sentence rеduction.

A trial court may modify a criminal sentence based on a showing of a new factor. A new factor is a fact or set of facts highly relevаnt to the imposition of sentence, not known to the trial court at the time of original sentencing, either because it was not then in existence оr because, even though it was. then in existence, it was unknowingly overlookеd by all of the parties. Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69, 73 (1975). “Whether a fact or set of facts satisfies this legаl standard is a question of law. Accordingly, ‍‌​​‌​‌‌​​​​​​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​​‌‌​​​​​‌​‌​‌‌​​‌‍on review this court need not give deference to the trial court’s determination.” State v. Hegwood, 113 Wis. 2d 544, 547, 335 N.W.2d 399, 401 (1983) (citation omitted).

Changes in attitude and prisоn rehabilitation are not new factors justifying sentence modification. Rather, deliberation on these subjects lies solely with the parole authorities. See State v. Krueger, 119 Wis. 2d 327, 335, 351 N.W.2d 738, 742 (Ct. App. 1984). Certainly, the court’s assessment of Prince’s potential ‍‌​​‌​‌‌​​​​​​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​​‌‌​​​​​‌​‌​‌‌​​‌‍future response to treatment is relevant to the imposition of sentencе. See State v. Larsen, 141 Wis. 2d 412, 426-27, 415 N.W.2d 535, 541 (Ct. App. 1987). However, Prince’s responsiveness to treatment as part оf a rehabilitation program within an institution and his treatability as an outpatient are two distinct issues. A psychiatrist’s opinion that Prince is treatable while he is incarcerated has little relevance to the question the circuit court addressed at sentencing of whether Prince was treatable as an outpatient. The institutional treatment ‍‌​​‌​‌‌​​​​​​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​​‌‌​​​​​‌​‌​‌‌​​‌‍is part of the rehabilitation process and, as such, is not a new factor that warrants modification оf the sentence.

Moreover, the court did not overlook the treat-ability of Prince’s aberrant sexual behavior when sentencing him. The judge studied thе presentence report containing conflicting opinions as to Prince’s treatability and several times specifically referred to trеatment as eventually becoming a part of the rehabilitation prоgram. He never explicitly held that Prince was untreatable. Rather, he chose to base the sentence on the egregiousness of the offense. We conclude that Prince’s response to treatment while incаrcerated is not a new factor justifying sentence modification, and we affirm the circuit court’s order.

By the Court. — Order affirmed.

Case Details

Case Name: State v. Prince
Court Name: Court of Appeals of Wisconsin
Date Published: Oct 18, 1988
Citations: 432 N.W.2d 646; 147 Wis. 2d 134; 1988 Wisc. App. LEXIS 913; 88-0540-CR
Docket Number: 88-0540-CR
Court Abbreviation: Wis. Ct. App.
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