State v. Thomas M. Parkman

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 16, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP27-CR Cir. Ct. No. 2019CF513

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS M. PARKMAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: JILL KAROFSKY and CHRIS TAYLOR, Judges. Affirmed.

¶1 NASHOLD, J.1 The issue in this appeal is whether the COVID-19
pandemic, as it may affect Thomas M. Parkman, is a “new factor” for purposes of

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP27-CR

modifying Parkman’s sentence. See State v. Harbor, 2011 WI 28, ¶35, 333
Wis. 2d 53, 797 N.W.2d 828. Parkman pled guilty to three misdemeanor offenses
stemming from his use of pepper spray against T.S., his ex-girlfriend and the
mother of his child. On February 27, 2020—at least several weeks before the
COVID-19 virus became a widely recognized public-health risk in Wisconsin—
the circuit court sentenced Parkman to six months’ incarceration in the Dane
County Jail. The circuit court has since stayed Parkman’s sentence multiple times,
including pending this appeal, on acknowledgment of the dangers that the
COVID-19 virus poses to inmates.

¶2 In September 2020, Parkman filed a postconviction motion, arguing
that the combined circumstances of the COVID-19 pandemic and his “higher
vulnerability to the disease” constituted a new factor warranting sentence
modification. The circuit court denied the motion.2 I affirm, concluding, as a
matter of law, that Parkman has not demonstrated a “fact or set of facts highly
relevant to the imposition of sentence.” See Rosado v. State, 70 Wis. 2d 280, 288,
234 N.W.2d 69 (1975).

BACKGROUND

¶3 The following facts and procedural history are undisputed for
purposes of this appeal. On March 8, 2019, Parkman and T.S. had an argument at
her residence. Parkman eventually became physical, pushing T.S. and punching
her in the chest. The punch caused T.S. to fall against the closet, damaging her

2
The Honorable Jill Karofsky presided at the plea and sentencing hearings and entered
the judgment of conviction. The Honorable Chris Taylor entered the order on Parkman’s motion
for postconviction relief.

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No. 2021AP27-CR

closet door and knocking her onto the ground. Parkman also sprayed T.S.
“directly in the eyes” with pepper spray. T.S. called 911, and police arrested
Parkman.

¶4 Parkman was charged with seven counts and, on January 14, 2020,
pled guilty to three misdemeanor counts: intentional use of oleoresin device
(pepper spray) causing bodily harm, criminal damage to property, and disorderly
conduct. See WIS. STAT. §§ 941.26(4)(b), 943.01(1), 947.01(1). On February 27,
2020, the circuit court held the sentencing hearing. Neither the court nor the
parties mentioned or appeared to take the COVID-19 virus into account, and the
circuit court sentenced Parkman to six months’ jail time, to begin April 24, 2020.3

¶5 In the following weeks, the incidence and prevalence of COVID-19
in Wisconsin increased dramatically. In recognition of this circumstance, on
March 17, 2020, the circuit court, sua sponte, amended Parkman’s jail report date
to June 1, 2020. Thereafter, on Parkman’s motions, the circuit court postponed
Parkman’s report date three more times. See WIS. STAT. § 973.15(8)(a)3.
(authorizing the sentencing court to stay the execution of sentence for up to sixty
days at a time).

¶6 On September 3, 2020, Parkman filed a postconviction motion to
modify his sentence to probation, with his jail sentence stayed. See WIS. STAT.
§ 973.09(1)(a) (authorizing the sentencing court to stay the execution of sentence
and place the defendant on probation). The stated basis for the motion was that

3
The court imposed a six-month sentence for the offense of intentional use of oleoresin
device causing bodily harm, a six-month sentence for the offense of criminal damage to property,
and a ninety-day sentence for the offense of disorderly conduct, all running concurrently to each
another.

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No. 2021AP27-CR

“the COVID-19 pandemic and Mr. Parkman’s higher vulnerability to the disease”
represented a new factor warranting sentence modification. See Harbor, 333
Wis. 2d 53, ¶¶35-37, 40 (a fact or set of facts “highly relevant” to the sentence but
unknown at sentencing constitutes a new factor, on which basis the circuit court
may exercise its discretion to modify the sentence (internal quotation marks and
quoted source omitted)).

¶7 In his motion, Parkman argued that sentence modification was
justified because of the “serious health emergency” and “unreasonable risk” he
would face if incarcerated, given that he “has several underlying health issues that
render him at higher risk for serious complications if he is exposed to the COVID-
19 virus.” Specifically, Parkman stated that he has asthma, has lung problems
stemming from a 2018 car accident injury, and takes medications that negatively
impact his immune system. Parkman represented that he was “obtaining
documentation of his health conditions, which can be provided to the court.” One
month later, Parkman filed a letter from his primary care doctor, which states, in
relevant part, “I am confirming [that] your current medication[s] … [are] Vyvanse
for attention deficit disorder and Leflunomide for rheumatoid arthritis.” Parkman
did not submit any additional documentation discussing how these conditions or
medications bore on his risk of COVID-19 complications, or confirming his self-
reported asthma and lung problems.

¶8 On November 24, 2020, the circuit court again stayed Parkman’s jail
sentence pending its decision on his postconviction motion. On December 14, the
court held the motion hearing. The parties and court agreed that the impact of the
pandemic was a fact or circumstance “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.” See Rosado, 70 Wis. 2d at

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No. 2021AP27-CR

288. Likewise, it was undisputed that there had been a recent outbreak of COVID-
19 in the Dane County Jail and, more generally, that the inmate population was at
greater risk of contracting the virus. The parties, however, disagreed about
whether Parkman had established his own “higher risk for serious complications.”
The parties further disputed whether the COVID-19 pandemic and its particular
risk to Parkman was a set of facts “highly relevant to the imposition of sentence.”
See id.

¶9 Parkman did not testify but, through counsel, argued that he has
“some preexisting health conditions that … may make him more at risk of serious
complications should he actually contract the COVID-19 disease.” Parkman
pointed to the letter from his doctor as establishing that “he is prescribed an
immunosuppressant drug [Leflunomide] and is, therefore, immunocompromised.”
He represented that he also has asthma and lung problems, but does not take
medications for those conditions. Parkman asserted that he was “not looking to
continually push off this sentence”; he therefore requested a term of probation as
an alternative to jail time.

¶10 The State asserted that Parkman had not established a new factor
because he had presented insufficient proof of an elevated risk of COVID-19
complications. The State represented that, despite repeated requests for medical
documentation of Parkman’s various conditions, it received only a “two-sentence
letter” stating that Parkman had rheumatoid arthritis and was taking Leflunomide.4
The State further represented that it did “a quick Google search” on Leflunomide;

4
As quoted above, the medical letter also states that Parkman takes Vyvanse for
attention deficit disorder, but Parkman did not argue that this fact was relevant to sentence
modification.

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No. 2021AP27-CR

the State agreed that Leflunomide was an immunosuppressant but “couldn’t find,
either way, any clearer statement of whether someone with rheumatoid arthritis is
at an elevated risk of coming down with COVID and experiencing significant
issues.” In the State’s view, then, the unsubstantiated possibility Parkman was at
elevated risk of COVID-19 complications had to be weighed against those factors
relevant at sentencing, namely—as discussed below—the seriousness of the crime
and Parkman’s criminal history. The State did not oppose a continued stay of
Parkman’s jail sentence, stating, “We can certainly check in where we’re at in
three months or four months or whatever it is with the pandemic and determine
what to do then.” The State argued, however, that the “sentence that was
originally imposed was appropriate.”

¶11 The circuit court determined that, as a matter of law, the COVID-19
pandemic was not a new factor, because it was not “highly relevant” to Parkman’s
sentencing. See id. Accordingly, the court did not reach the question of whether
sentence modification was warranted. See Harbor, 333 Wis. 2d 53, ¶38 (if the
court determines, as a matter of law, that the facts do not constitute a new factor,
then it need not consider whether it should exercise its discretion to modify the
sentence). Parkman filed a notice of appeal, after which the circuit court stayed
the imposition of jail time pending the resolution of this appeal.

DISCUSSION

¶12 “Within certain constraints, Wisconsin circuit courts have inherent
authority to modify criminal sentences.” Id., ¶35. One avenue for doing so is for
the defendant to demonstrate a new factor warranting sentence modification. Id.
This is a two-part inquiry. Id., ¶36. First, the defendant must show, by clear and
convincing evidence, that a new factor exists. Id. As previously stated,

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No. 2021AP27-CR

the phrase “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, 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.

See Rosado, 70 Wis. 2d at 288. Whether a proffered fact or set of facts constitutes
a new factor is a question of law that this court decides de novo. Harbor, 333
Wis. 2d 53, ¶36.

¶13 The demonstration of a new factor does not automatically entitle the
defendant to sentence modification. Id., ¶37. Rather, if a new factor exists, the
circuit court must make the discretionary decision to modify the sentence. Id.
The court need not reach this second step if it determines that no new factor exists.
Id., ¶38.

¶14 It is undisputed that the impact of the COVID-19 pandemic was a
fact unknown or not fully understood “at the time of original sentencing.” See
Rosado, 70 Wis. 2d at 288. That is, in the early days of the pandemic in February
2020, when Parkman was sentenced, there was little practical way that the circuit
court could have meaningfully taken into account the risks that COVID-19 might
pose to Wisconsin inmates.

¶15 Parkman, however, fails on the second prong of Rosado: he has not
shown that the COVID-19 pandemic and his purported “higher vulnerability to the
disease” would have been “highly relevant to the imposition of sentence.” See id.
As a threshold matter, I question whether Parkman has met his burden of showing,
by clear and convincing evidence, that he has a “higher vulnerability to the
disease.” He failed to present any medical documentation confirming that he has
asthma or lung problems. Even accepting Parkman’s self-reported statement to

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No. 2021AP27-CR

this effect, the record contains no information regarding the degree of risk
COVID-19 poses to him. Similarly, a letter from Parkman’s doctor states that he
takes Leflunomide for rheumatoid arthritis, but nothing in the record indicates how
this circumstance impacts Parkman’s particular “vulnerability to the disease.”
Parkman bears the burden here, and without further documentation or testimony
on his medical conditions, it is difficult to meaningfully assess his motion.

¶16 Even assuming, however, that Parkman has a higher risk of COVID-
19 complications, Parkman has not demonstrated that the combined circumstances
of his health status and the COVID-19 pandemic would have been “highly
relevant” to the imposition of his sentence. It is important to note that Parkman
does not seek another stay of the execution of his jail sentence—in fact, the State
does not oppose postponing Parkman’s jail report date “if necessary[,] until this
pandemic subsides.” Parkman, rather, seeks sentence modification—from six
months’ incarceration to probation with a stayed jail sentence. The question, then,
is whether the COVID-19 pandemic and its particular risks to Parkman would
have been “highly relevant” to the decision to sentence Parkman to any term of
incarceration, to be served at some indeterminate point in the future.

¶17 I conclude that this set of facts is not “highly relevant” to the
imposition of Parkman’s sentence. Turning to the sentencing transcript, the circuit
court explicitly considered the severity of the offense (intentional use of pepper
spray against T.S.), Parkman’s character, and the protection of the public. See
State v. Gallion, 2004 WI 42, ¶¶40, 43-44 & n.11, 270 Wis. 2d 535, 678 N.W.2d
197 (discussing sentencing objectives and factors). First, the sentencing court was
concerned by the nature of the crime itself, commenting, “I can’t even image how
bad it would hurt to get pepper-sprayed in the face.” In the court’s view,
Parkman’s use of pepper spray reflected his mindset that he could “act[] in a really

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No. 2021AP27-CR

abusive and violent manner” so as to “control someone with violence.” The
offense was further “aggravated by the fact that [T.S.] was someone Mr. Parkman
was or has been or is in a romantic relationship with … [and] they have a child
together.” Moreover, the pepper spray incident was, potentially, one of several
recent crimes against T.S.: there were pending charges against Parkman involving
T.S. “where he shows up at her house in one of them and … in another one …
smashed out the window … of her car.” Notably, although defense counsel
requested a shorter jail term, counsel conceded that probation was “not an
appropriate disposition,” given the severity of the offense.

¶18 Relatedly, as to Parkman’s character, the sentencing court found it
significant that Parkman had “a long record … a really full record from 2014 on.”
The court was aware that Parkman had ten convictions between 2012 and 2020,
some encompassing multiple counts—including a 2016 felony battery charge with
a different victim and a 2017 misdemeanor disorderly conduct charge with T.S.
For some of these offenses, Parkman was placed on probation; twice, however, the
probation was revoked. In addition, as previously mentioned, Parkman faced
pending felony charges for domestic violence offenses against T.S. The State
argued that “another period of probation is [not] going to do what prior periods of
probation haven’t done”—that is, serve as “an effective consequence for”
Parkman. The sentencing court implicitly agreed, concluding that a jail sentence
was warranted, in part, because of the “close to a dozen different cases in that
short period of time.”

¶19 As to the third factor, the sentencing court remarked, “As far as
protecting the public—if we’re not going to protect women in this community by
people who are using [pepper] spray to control them, who are we protecting?”

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No. 2021AP27-CR

Accordingly, the court agreed with the State’s recommendation, imposing six
months’ jail time.

¶20 The record thus reflects that there were several facts or
considerations significant to sentencing, including: Parkman’s use of pepper spray
as a weapon; the fact that T.S. was a former romantic partner and the mother of
Parkman’s child; what the court perceived as Parkman’s belief that he could
“control someone with violence”; and Parkman’s extensive criminal history,
including convictions and pending domestic violence charges concerning T.S. Of
course, the sentencing court could not and did not consider how the COVID-19
pandemic, as it now exists, might impact Parkman’s term of incarceration. But it
is speculative to simply assume, as Parkman does, that the court’s “entire approach
to sentencing would have been different” if the court had understood the impact of
the pandemic, such that it would have “altered” its initial “calculus” favoring
incarceration over probation. Again, in this case, the “new factor” analysis
concerns the imposition of the sentence itself, not when or how that sentence is
served. Parkman’s sentence was based almost entirely on the nature of the offense
and his character, factors unaffected by the pandemic.

¶21 Relatedly, Parkman misses the mark in attributing significance to the
circuit court’s March 17, 2020 sua sponte decision to delay his jail report date
until June 1 (this was the first of several stays). In Parkman’s view, this is
“evidence that [the] circuit court did find the COVID-19 pandemic highly relevant
to … Parkman’s jail sentence.” But the court’s determination that Parkman should
not serve a term of incarceration starting April 2020 does not bear on whether that
sentence should be served at all.

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No. 2021AP27-CR

¶22 In sum, Parkman has not demonstrated, by clear and convincing
evidence, a new factor supporting sentence modification. Accordingly, I affirm.5

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

5
In light of my conclusion that Parkman has not established a new factor, I do not
address the State’s alternative argument that a defendant in Parkman’s position is entitled only to
corrective measures directed to changing conditions of confinement, and not to sentence
modification. See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436,
842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties
when one issue is dispositive.”).

11