State v. Franklin

• Decision Date: 02 February 1989
• Docket Number: No. 87-0297,87-0297
• Citation: 148 Wis.2d 1,434 N.W.2d 609
• Court: Wisconsin Supreme Court
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael D. FRANKLIN, Defendant-Appellant-Petitioner.

Page 609

434 N.W.2d 609

148 Wis.2d 1

STATE of Wisconsin, Plaintiff-Respondent, v. Michael D. FRANKLIN, Defendant-Appellant-Petitioner.

No. 87-0297.

Supreme Court of Wisconsin.

Argued Dec. 13, 1988.

Decided Feb. 2, 1989.

Mary E. Waitrovich, Asst. State Public Defender, and oral argument by Eric Schulenberg, Chief of Appellate Div. of the State Public Defender Office, for defendant-appellant-petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., with whom on the brief was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals affirming an order of the Milwaukee County Circuit Court, Judge Ralph G. Gorenstein, refusing to modify Michael D. Franklin's sentence for armed masked robbery, attempted murder and escape. 142 Wis.2d 941, 419 N.W.2d 360.

We address two issues in this case. First, what is the burden of proof which a defendant must meet in order to demonstrate the existence of a new factor supporting a motion to modify a sentence? Second, has Michael Franklin (Franklin) met this burden of proof and demonstrated the existence of a new factor? We conclude that the appropriate burden of proof is that of clear and convincing evidence, and we further conclude that Franklin has not demonstrated the existence of a new factor by clear and convincing evidence in this case.

On November 29, 1972, Franklin pleaded guilty to charges of armed masked robbery and attempted murder arising out of an incident in which he held up the Beneficial Finance Company of Milwaukee with a sawed-off shotgun and then shot a police officer while running from the scene. He also pleaded guilty to a charge of escaping from police custody. The Milwaukee County Circuit Court, Judge Max Raskin, sentenced Franklin to thirty-five years in prison for armed masked robbery, thirty years in prison for attempted murder, to be served concurrently with the robbery sentence, and one year in prison for escape, to be served consecutive to the previous sentences.

At the time of the sentencing, the circuit court made no mention of parole board policy or Franklin's prospects for parole. It explicitly based the sentence on the severity of the offenses, Franklin's bad record and his antisocial attitude.

On April 10, 1985, Franklin filed a motion in Milwaukee County Circuit Court, Judge John E. McCormick, ¹ to modify his sentence. He supported this motion by alleging the existence of two new factors. He contended, first, that changes in Parole Board policies made subsequent to his sentencing resulted in a longer term of incarceration than could have been predicted when he was sentenced. He further contended that his sentence was improperly based on juvenile adjudications obtained without the assistance of counsel prior to the United States Supreme Court's decision in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). ²

On July 26, 1985, the circuit court issued an order denying Franklin's motion for modification. Franklin appealed from this order.

The court of appeals reversed the order holding that the circuit court abused its discretion by improperly relying on an unpublished court of appeals decision when it decided not to consider the existence of a parole policy change. It noted that the statistics regarding parole policy provided by Franklin may have been sufficient to establish the existence of a new policy. It also found that the circuit court abused its discretion by mistakenly concluding that the sentencing court did not rely on Franklin's pre-Gault record. The court of appeals concluded that it was reasonable to infer that the sentencing court did consider Franklin's pre-Gault record in its sentencing decision.

The case was remanded to the Milwaukee County Circuit Court, Judge Ralph G. Gorenstein. The circuit court did not decide whether there was a change in parole policy or whether such a change would constitute a new factor. It simply examined Franklin's record and presentence report and issued an order denying Franklin's modification request on March 16, 1987.

The court of appeals affirmed the circuit court's order refusing to modify the sentence. It first concluded that a change in parole policies constituted a new factor which warranted consideration of whether to modify Franklin's sentence. The court of appeals then improperly ³ decided to determine itself whether Franklin's sentence should be modified. It concluded, based upon factors other than parole policy, that the sentence should not be modified. It noted in particular that Franklin had been disciplined fifty times for rule violations in prison. These violations included participation in riots, fighting, possession of a weapon and stealing. It concluded that, rather than a change in parole policy, "[a] more plausible explanation for his remaining incarcerated is his lengthy record of misconduct while in prison." The court of appeals also discussed the sentencing court's reliance on pre-Gault adjudications but, overruling its prior decision, concluded that there was no evidence that the sentencing court actually relied on the adjudications themselves. Instead, it concluded that the sentencing court properly relied merely upon Franklin's contacts with juvenile authorities.

We granted review on the issue of the existence of a new factor. We agree with the court of appeals that modification of Franklin's sentence is not justified. We disagree, however, with the court's conclusion that Franklin has demonstrated the existence of a new factor supporting his modification motion.

Sentence modification involves a two-step process in Wisconsin. First, the defendant must demonstrate that there is a new factor justifying a motion to modify a sentence. State v. Hegwood, 113 Wis.2d 544, 546, 335 N.W.2d 399 (1983). A new factor, as defined in Rosado v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69 (1975), 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, even though it was then in existence, it was unknowingly overlooked by all of the parties." Whether a fact or set of facts constitutes a new factor is a question of law which may be decided without deference to the lower court's determinations. Hegwood, 113 Wis.2d at 547.

If a defendant has demonstrated the existence of a new factor, then the circuit court must undertake the second step in the modification process and determine whether the new factor justifies modification of the sentence. Id. at 546, 335 N.W.2d 399. This determination is committed to the circuit court's discretion and will be reviewed under an abuse of discretion standard. Id.

In this case we must determine whether Franklin has demonstrated the existence of a new factor allowing the circuit court to consider sentence modification. The first issue that we must address is the appropriate burden of proof under which a defendant must demonstrate the existence of a new factor. We are convinced that the proper standard is that of clear and convincing evidence.

We find this situation analogous to that of motions for post-conviction relief under sec. 974.06, Stats. In State v. Walberg, 109 Wis.2d 96, 102, 325 N.W.2d 687 (1982), we concluded that public policy requires a defendant to demonstrate a right to post conviction relief by clear and convincing evidence. The decision was based, in part, on the public policy promoting finality of judgments. Id. at 104, 325 N.W.2d 687. The same public policy applies in this instance. Franklin has been through the complete trial and sentencing process. He and other criminal defendants should not be able to question the validity of the results of this process except for clear and convincing reasons. A clear and convincing standard both promotes the policy of finality of judgments and satisfies the purpose of sentence modification, which is the correction of unjust sentences. Hayes v. State, 46 Wis.2d 93, 105, 175 N.W.2d 625 (1970).

Citing State v. Pope, 107 Wis.2d 726, 729-30, 321 N.W.2d 359 (Ct.App.1982), Franklin contends that, just as the original sentencing hearing does not require a burden of proof standard, neither should a motion for modification. He insists that, in both cases, a circuit court should have the ability to consider all information relevant to sentencing without being constrained by the rules of evidence or a burden of proof standard.

We agree that when a circuit court sentences a defendant it may operate under more relaxed procedural rules. However, in this case we are not addressing the issues of what information a court may consider or how much weight it may assign to it. This case addresses the burden of proof necessary to set aside a final judgment and reach the stage where relevant sentencing information may be considered. Thus, we find that this case is analogous to that of post-conviction motions and we adopt a clear and convincing evidence test.

We now must determine whether Franklin has demonstrated the existence of a new factor by clear and convincing evidence. We conclude that he has not.

Franklin insists that changes in parole eligibility constitute a new factor in this case just as they did in Kutchera v. State, 69 Wis.2d 534, 230 N.W.2d 750 (1975). In Kutchera, this court held that the defendant demonstrated the existence of a new factor by showing that he was eligible for instant parole when he was sentenced, but that, due to this court's modification of its previous interpretation of the sentencing statute in Edelman v. State, 62 Wis.2d 613, 215 N.W.2d 386 (1974), he was later required to serve a minimum sentence of one year before he and other defendants became eligible for parole. Kutchera, 69 Wis.2d at 552, 230 N.W.2d 750. Thus, in Kutchera, the defendant demonstrated that a parole policy change had occurred which changed his real eligibility for...