State v. Crochiere

• Decision Date: 16 June 2004
• Docket Number: No. 02-1809-CR.,02-1809-CR.
• Citation: 681 N.W.2d 524,2004 WI 78,273 Wis.2d 57
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James D. CROCHIERE, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

273 Wis.2d 57

2004 WI 78

681 N.W.2d 524

STATE of Wisconsin, Plaintiff-Respondent, v. James D. CROCHIERE, Defendant-Appellant-Petitioner.

No. 02-1809-CR.

Supreme Court of Wisconsin.

Oral argument January 13, 2004.

Decided June 16, 2004.

For the defendant-appellant-petitioner there were briefs and oral argument by Steven P. Weiss, assistant state public defender.

For the plaintiff-respondent the cause was argued by Sarah K. Larson, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

An amicus curiae brief was filed by Walter Dickey, David E. Schultz and Michael E. Smith, Madison, on behalf of the University of Wisconsin Law School, and oral argument by Michael E. Smith.

¶ 1. PATIENCE D. ROGGENSACK, J.

J. James D. Crochiere seeks review of an unpublished court of appeals decision affirming a Marathon County Circuit Court order, denying Crochiere's motion for sentence modification. Crochiere argues that the circuit court should have considered his prison classification, his rehabilitative progress and his child support obligations as new factors that require sentence modification. While acknowledging that these facts may have been insufficient for sentence modification of an inmate serving an indeterminate sentence, Crochiere claims that "new factor" jurisprudence must be changed for those sentenced under Truth-in-Sentencing I. He asserts that the courts should exercise their inherent power to do so.

¶ 2. We reaffirm that circuit courts have inherent authority to modify sentences on the basis of a new factor. Additionally, we continue to employ existing "new factor" jurisprudence for TIS-I sentences, while noting there may be additional new factors unique to TIS-I that we have not previously identified. However, we conclude, as did the court of appeals, that Crochiere has presented no information that constitutes a new factor supportive of sentence modification and that the circuit court appropriately exercised its discretion when it identified and applied the correct law in denying his motion. Therefore, we affirm the court of appeals.

I. BACKGROUND

¶ 3. Crochiere pled no contest to reckless endangerment, operating a motor vehicle while intoxicated, third offense, and battery to a prisoner. The first two charges arose from an incident in November 2000 when Crochiere was stopped for speeding. The officer believed Crochiere was intoxicated and returned to his squad car to determine what additional information might be available on Crochiere. When Crochiere began to rev the engine of his truck, the officer told him to turn it off. Because he did not do so, the officer returned to Crochiere's vehicle and reached into it in an attempt to remove the keys from the ignition. Instead of permitting the officer to take the keys, Crochiere pressed on the accelerator and began to drive away. The officer's arm was stuck in the steering wheel area and as a result, Crochiere dragged the officer for some distance before the officer was able to free himself and fall to the ground. Crochiere was apprehended after he drove his truck into a ditch. The circuit court, Judge Patrick M. Brady presiding, sentenced him to three years of initial confinement and five years of extended supervision for the reckless endangerment conviction.¹

¶ 4. After serving approximately eighteen months, Crochiere moved to modify his sentence. He alleged that his classification by the Department of Corrections as a minimum security prisoner, his approval to do off-ground maintenance work for the Department of Natural Resources and his rehabilitative progress while imprisoned are new factors warranting sentence modification. He also asked the circuit court to consider that he is paid only 24 cents per hour for his work, when he could return to his former job where he would earn ten dollars per hour, thereby improving his ability to make child support and restitution payments. Crochiere contends that because TIS eliminated parole, "new factor" sentence modification jurisprudence should be changed to permit consideration of those circumstances formerly taken into account by the parole board. The circuit court denied his motion; the court of appeals affirmed; and we accepted Crochiere's petition for review.

II. DISCUSSION

A. Impact of Truth-in-Sentencing

¶ 5. On December 31, 1999, the effect of sentencing on the amount of time a convicted defendant actually serves in prison changed dramatically, as 1997 Wis. Act 283, commonly referred to as Truth-in-Sentencing I (TIS-I), became effective. This legislation was the first of two truth-in-sentencing acts. The second, 2001 Wis. Act 109 or TIS-II, became effective February 1, 2003, and modified TIS-I. See State v. Cole, 2003 WI 59, ¶ 4, 262 Wis. 2d 167, 663 N.W.2d 700

. Crochiere was sentenced under TIS-I. He has not argued that any aspect of TIS-II is at issue in this appeal.

¶ 6. Prior to TIS-I, Wisconsin used indeterminate sentencing, whereby a convicted defendant was sentenced to serve up to a stated number of years. Generally, an inmate was eligible for parole after serving the greater of six months or one-quarter of the sentence. Wis. Stat. § 304.06(1)(b) (1999-2000); Michael B. Brennan & Donald V. Latorraca, Truth-in-Sentencing Comes to Wisconsin, Wis. Law., May 2000, at 14 [hereinafter TIS Comes to Wisconsin]. An inmate's time in confinement could be reduced due to his or her good behavior. Wis. Stat. § 302.43 (1999-2000). The parole commission decided when an eligible inmate would be released on parole. Wis. Stat. § 304.01, et seq. (1999-2000); TIS Comes to Wisconsin, supra, at 14.² Additionally, unless there were extenuating circumstances, an inmate reached his or her mandatory release date after serving two-thirds of the stated sentence.³ Wis. Stat. § 302.11(1) (1999-2000); TIS Comes to Wisconsin, supra, at 14. ¶ 7. TIS-I eliminated indeterminate sentencing and established determinate sentencing whereby a convicted defendant serves each day of the sentence imposed. Wis. Stat. § 973.01(4) and (6) (2001-02);⁴see TIS Comes to Wisconsin, supra, at 14. Under TIS-I, all felony sentences except life imprisonment are bifurcated, with at least one year of confinement in prison followed by a term of extended supervision in the community. Sections 973.01(1) and (2)(b).⁵ TIS-I eliminated reduction in confinement time based on an inmate's good behavior, and it abolished parole. Sections 973.01(4) and (6);⁶see also TIS Comes to Wisconsin, supra, at 17 (noting that in addition to the elimination of "good time," TIS-I provides that "`bad time' in the form of extra days in confinement before release to [extended supervision]" can be assessed).

¶ 8. A related change brought about by TIS-I was to increase the role of the judicial branch in sentencing. Prior to TIS-I, sentencing was a responsibility shared by all three branches of government: the legislature, in setting the maximum penalties for crimes; the courts, in imposing indeterminate terms on individual convicted defendants; and the executive branch, through the parole commission, in deciding how much of the term imposed an inmate actually would serve. State v. Gallion, 2004 WI 42, ¶ 28, 270 Wis. 2d 535, 678 N.W.2d 197. After TIS-I, where the legislature opted for more certainty in sentencing through the elimination of parole, Wis. Stat. § 973.01(6), the executive branch's participation in sentencing was significantly diminished. Gallion, ¶ 28. The overriding theme became certainty in sentencing: a convicted defendant sentenced to one year in confinement will serve precisely one year in prison. See TIS Comes to Wisconsin, supra, at 16 (explaining that TIS-I "establishes an informationally accurate system of sentencing. A sentence to one-year confinement in prison means the offender will be incarcerated for exactly 365 days before being released to a term of extended supervision")⁷. The shift away from executive branch participation in sentencing placed more responsibility on the courts because of the removal of the safety valve provided by the parole commission that once could have corrected a sentence that proved to be longer than was necessary to achieve the sentencing court's objectives.⁸

¶ 9. Crochiere bases his argument for sentence reduction, in part, on this shift away from the executive branch's participation due to the legislature's elimination of parole. He contends that this change brought about through TIS-I requires courts to examine rehabilitative progress and to conclude that since there is no longer any other way to review it, rehabilitation must become a new factor upon which a circuit court may base sentence modification. The State contends that to hold that Crochiere's conduct after incarceration is a new factor would strike at the very heart of TIS—certainty in sentencing. It would give courts the discretion to modify sentences based on post-incarceration conduct of inmates, which is the same discretion the legislature took from the executive branch by enacting TIS-I. It is within this framework that we review Crochiere's and the State's contentions.

B. Standard of Review

¶ 10. Whether a fact or set of facts constitutes a new factor is a question of law that we decide de novo. State v. Lechner, 217 Wis. 2d 392, 424, 576 N.W.2d 912 (1998). However, whether a sentence should be modified based upon a new factor is a decision committed to the circuit court's discretion, which we will not disturb unless it was erroneously exercised. Id.

C. Inherent Power of the Courts

¶ 11. Courts have those inherent powers that are necessary "to enable the judiciary to accomplish its constitutionally or legislatively mandated functions." State ex rel. Friedrich v. Circuit Court for Dane County, 192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995). The power to modify a sentence is one of the judiciary's inherent powers. Hayes v. State, 46 Wis. 2d 93, 101, 175 N.W.2d 625 (1970).⁹ This power is exercised to...