State v. Benjamin R. Stibbe

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.
March 29, 2023
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 Nos.
2022AP497 Cir. Ct. Nos. 2005CF295
2006CF171
2022AP510
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BENJAMIN R. STIBBE,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Ozaukee County:
SANDRA JO GIERNOTH, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2022AP497
2022AP510

¶1 PER CURIAM. Benjamin R. Stibbe appeals pro se from orders
denying his postconviction motions seeking modification of his sentences based
on a new factor. Stibbe contends the circuit court erred in denying without a
hearing his request to modify his sentences based on assistance he provided to law
enforcement in 2002, which assistance he claims resulted in the arrests and
convictions of multiple drug dealers. For the following reasons, we affirm.

Background

¶2 In Ozaukee County Case Nos. 2005CF295 and 2006CF171, Stibbe
entered no-contest pleas to a total of four counts of first-degree reckless homicide,
drug delivery. The complaints alleged that Stibbe purchased heroin, gave it to the
victims, and the victims subsequently died. In 2006, the circuit court sentenced
Stibbe to eighteen years of initial confinement followed by fifteen years of
extended supervision on the first case, and in 2007, the court sentenced him to a
concurrent sentence of twenty-five years of initial confinement, followed by
fifteen years of extended supervision on the second case.

¶3 In 2021, Stibbe filed motions to modify his sentences, asserting that
his “substantial assistance to law enforcement” in 2002 is a “new factor”
warranting sentence modification. Stibbe acknowledged in his motion that his
assistance “was in existence” when he was sentenced in 2006 and 2007, but he
asserted it “was overlooked by all the parties.” The circuit court “assum[ed]
without deciding” that Stibbe’s assistance was unknowingly overlooked at the
time of his sentencings, but it nonetheless denied his motions on other grounds.
Stibbe appeals.

2
Nos. 2022AP497
2022AP510

Discussion

¶4 Although “[a circuit] court cannot base a sentence modification on
reflection and second thoughts alone,” “it may base a sentence modification upon
the defendant’s showing of a ‘new factor.’” State v. Harbor, 2011 WI 28, ¶35,
333 Wis. 2d 53, 797 N.W.2d 828. A “new factor” 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.” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). The
defendant has the burden to establish the existence of a new factor by clear and
convincing evidence. State v. Samsa, 2015 WI App 6, ¶14, 359 Wis. 2d 580, 859
N.W.2d 149 (2014). Whether a fact or set of facts constitutes a new factor is a
question of law we review de novo. Id.

¶5 Here, the circuit court denied Stibbe’s motion for sentence
modification without holding an evidentiary hearing. When a defendant moves for
sentence modification based on a new factor, the circuit court must hold a hearing
only if “the motion on its face alleges sufficient material facts that, if true, would
entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶¶9, 13, 274 Wis. 2d
568, 682 N.W.2d 433. This is a question of law we review independently. Id., ¶9.
“However, if the motion does not raise facts sufficient to entitle the movant to
relief, or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the circuit court has the
discretion to grant or deny a hearing.” Id. Discretionary decisions are reviewed
under the deferential erroneous exercise of discretion standard. Id.

3
Nos. 2022AP497
2022AP510

¶6 While Stibbe primarily relies on two cases in support of his assertion
that his assistance to law enforcement is a “new factor,” both are inapposite.1 In
State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, we recognized
that “a defendant’s substantial and important assistance to law enforcement after
sentencing may constitute a new factor that the trial court can take into
consideration when deciding whether modification of a sentence is warranted.”
Id., ¶1 (emphasis added). In State v. Boyden, 2012 WI App 38, ¶12, 340 Wis. 2d
155, 814 N.W.2d 505, we expanded Doe slightly to include the situation where a
defendant provides such assistance prior to sentencing but the “fruits” of that
assistance are realized after sentencing. Boyden, 340 Wis. 2d 155, ¶17 (“[T]he
postsentence fruits of a defendant’s substantial presentence assistance to law
enforcement authorities may constitute a new factor.”).

¶7 As indicated, Stibbe bears the burden of showing a “new factor” by
clear and convincing evidence. His appeal does not even get out of the gate as
neither his assistance to law enforcement (Doe) nor the “fruits” of that assistance

1
Stibbe also cites an unpublished per curiam opinion that is not citable under Wisconsin
rules of appellate procedure, see RULE 809.23(3) (2021-22), and we do not consider or discuss
that opinion. All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

4
Nos. 2022AP497
2022AP510

(Boyden) occurred after his 2006/2007 sentencings.2 His affidavit plainly
indicates he provided the assistance at issue to law enforcement in 2002—years
before his sentencings in these cases—and Wisconsin’s Consolidated Court
Automation Programs (CCAP) records, of which we may take judicial notice, see
Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829
N.W.2d 522, together with Stibbe’s averments in his affidavit indicate the fruits of
his assistance had all occurred by 2004.

¶8 To provide more specifics, Stibbe represents that in 2002 he pointed
out to law enforcement officers a Milwaukee “drug house” from which he
regularly purchased heroin, made a purchase of heroin at the house in cooperation
with and under the supervision of law enforcement, and immediately thereafter
“vouched” to the drug dealers for an undercover law enforcement officer who then

2
Stibbe does not aver or even suggest he was unaware of the fruits of his assistance to
law enforcement prior to sentencing. Even if he had made such a claim, it would appear difficult
to support, as he indicates in his affidavit and specifically states in his motion related to this
appeal that the drug house from which he regularly purchased heroin was “shut down” within
weeks of his direct assistance to law enforcement in connection with the house. Furthermore, in
his pro se brief-in-chief on appeal, he includes a timeline of “facts,” which begins with his
provision of assistance to law enforcement, then indicates “[t]his drug organization was shut
down after an investigation” that included his introduction of an undercover officer to “leaders of
the drug organization,” “[t]his investigation did lead to the arrest and conviction of Timothy
Milton and Demario Mosley,” “Milton/Mosley did release from prison a number of years later
and begin to operate their drug organization again,” Stibbe “being an addict did continue to
purchase heroin from Milton/Mosley as they had no knowledge of his cooperation with
authorities,” and Stibbe was subsequently arrested and convicted for his 2005/2006 crimes. In his
reply brief on appeal, Stibbe further represents that “Milton and Mosley were able to continue
operating their drug enterprise while incarcerated. Upon release from prison they gladly
reconnected with Stibbe. And although he was responsible for their incarceration they remained
in the dark to this fact.” While in his motion Stibbe asserts the “fruits” of his assistance were
“overlooked at the time of his [2006/2007] sentencing hearings,” he does not state that the fruits
were “unknowingly overlooked by all of the parties,” which is the legal standard for a showing of
a new factor. See State v. Crockett, 2001 WI App 235, ¶14, 248 Wis. 2d 120, 635 N.W.2d 673
(emphasis added). Of course, Stibbe himself was a “party” at the time of his 2006/2007
sentencings in this case.

5
Nos. 2022AP497
2022AP510

made a heroin purchase himself, or so it appeared to Stibbe, while Stibbe waited
outside in a car the officer had just exited. Stibbe avers that dealers at the house
were “busted within a matter of weeks” of his assistance, and he attributes this to
his cooperation with law enforcement. Stibbe more specifically states the
assistance he provided to law enforcement “led to the arrest, successful
prosecution, conviction, and imprisonment” of Neal Mosley and Eric Bennett, as
well as Timothy Milton and Demario Mosley, from whom Stibbe avers he
regularly purchased heroin.

¶9 Each of these individuals pled guilty in connection with these
charges and were sentenced to prison, with Bennett, Milton and Demario Mosley
being sentenced in 2003 and Neal Mosley being sentenced in 2004. Thus,
Stibbe’s assistance and the fruits thereof all occurred prior to his 2006/2007
sentencings. Moreover, he concedes, as he must, that prior to his sentencings, he
was aware of the assistance he provided; yet, for whatever reason (fear of
retaliation perhaps), he apparently chose not to inform the circuit court of this
assistance. And, even though he does not appear to explicitly concede he was also
aware of the fruits of his assistance prior to his sentencings, neither does he direct
us to anywhere in the record where he asserted he was unaware of said fruits at the
time of his sentencings, and we are unable to find such an assertion. He needed to
make such an assertion because had he been afforded an evidentiary hearing in
this case, he would have had to establish by clear and convincing evidence that the
sentencing courts were not aware of the fruits of his assistance “because … it was
unknowingly overlooked by all of the parties,” including Stibbe. See State v.
Crockett, 2001 WI App 235, ¶14, 248 Wis. 2d 120, 635 N.W.2d 673 (emphasis
added) (“Although the … court may have ‘unknowingly overlooked’ these facts,

6
Nos. 2022AP497
2022AP510

[the defendant] does not claim that he was unaware of them as well. Therefore,
these facts are not new factors.”).

¶10 Because Stibbe failed to “allege[] sufficient material facts that, if
true, would entitle [him] to relief,” the circuit court did not err in denying his
motion without a hearing, see Allen, 274 Wis. 2d 568, ¶9, and we affirm the
circuit court, see State v. Rognrud, 156 Wis. 2d 783, 789, 457 N.W.2d 573 (Ct.
App. 1990) (We may affirm a correct decision of the circuit court even though the
court relied on a different ground.).3

By the court.––Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).

3
Because Stibbe develops no alternative argument that the circuit court erroneously
exercised its discretion in declining to hold a hearing in the event we would conclude, as we do,
that he failed to “allege[] sufficient material facts that, if true, would entitle [him] to relief,” see
State v. Allen, 2004 WI 106, ¶¶9, 13, 274 Wis. 2d 568, 682 N.W.2d 433, we need not address that
question.

7