State v. Kodi L. Bear

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.
August 29, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP2020-CR Cir. Ct. No. 2012CF186

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KODI L. BEAR,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Forest County: JAMES R. HABECK and KATHERINE SLOMA, Judges.
Affirmed.

Before Stark, P.J., Hruz and Gill, 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).
No. 2021AP2020-CR

¶1 PER CURIAM. Kodi Bear appeals a judgment, entered upon his
guilty plea, convicting him of second-degree sexual assault of a child under the
age of sixteen. He also appeals an order denying his motion for postconviction
relief. Bear contends that the circuit court erred by denying his postconviction
motion for sentence modification based on the existence of three new factors.1 For
the reasons discussed below, we affirm the judgment and order.

BACKGROUND

¶2 Bear was charged with first-degree sexual assault of a child under
the age of sixteen (use or threat of force or violence and as an actor over the age of
eighteen) (Count 1) and incest (Count 2). The charges stemmed from allegations
that then-nineteen- or twenty-year-old Bear sexually assaulted his
then-fourteen-year-old female relative on several occasions. As a result of one of
the assaults, the victim became pregnant and later gave birth.

¶3 Ultimately, Bear entered into a plea agreement with the State that
was approved by the sentencing court. Pursuant to the agreement, the court
granted the State’s motion to amend Count 1 to a charge of second-degree sexual
assault of a child under the age of sixteen, and dismissed and read in Count 2. The
court then accepted Bear’s guilty plea to Count 1 as amended.

¶4 At a later hearing, the State asked the sentencing court to sentence
Bear to a twenty-five-year sentence consisting of ten years’ initial confinement
followed by fifteen years’ extended supervision. The State informed the court

1
The Honorable James R. Habeck presided over Bear’s sentencing, and the Honorable
Katherine Sloma presided over Bear’s postconviction proceedings. We will hereinafter refer to
Judge Habeck as the “sentencing court” and Judge Sloma as the “circuit court.”

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No. 2021AP2020-CR

that: “As part of the resolution of this [case], we did amend things to avoid a
mandatory minimum requirement of a [twenty-five-]year sentence.” The State
also requested that the court require Bear to register as a sex offender “consistent
with the statute.” In turn, the defense requested an imposed and stayed prison
sentence with orders for fifteen years of probation and fifteen years of sex
offender registration.

¶5 The sentencing court adopted the State’s recommendation regarding
incarceration and extended supervision and it sentenced Bear accordingly. In
sentencing Bear, the court stated that it possessed “a factual studies file in [its]
office” that stated females “younger than 15 that engage in sex:” (1) “have about
triple the suicide and depression rates”; (2) “aren’t well built physically for
becoming a parent”; (3) “often have drops in school performance”; and (4) have
“increased cancer rates.” Later in the sentencing, the court also noted the
“absolutely heinous type of act involving a vulnerable teenager.” The court
initially adopted the defense’s recommendation that Bear be required to register as
a sex offender for fifteen years, but subsequently amended the judgment of
conviction after it learned that Bear was required to register as a sex offender for
life pursuant to WIS. STAT. § 301.45(5)(b)1m. (2021-22).2

¶6 Bear filed a postconviction motion and argued that his sentence
should be modified based upon three new factors: (1) the State’s incorrect
statement at the beginning of the sentencing hearing that Bear was originally
charged with a crime that carried a twenty-five-year mandatory minimum; (2) the

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP2020-CR

incorrect belief by Bear’s trial counsel and the sentencing court that Bear could
register as a sex offender for fifteen years when, in reality, he was required by law
to register as a sex offender for life; and (3) the sentencing court’s reliance on
unverified “factual studies” when imposing Bear’s sentence.

¶7 The circuit court denied Bear’s postconviction motion. Bear appeals
and he again argues that the same three new factors warrant sentence modification.
Additional facts will be provided below as necessary.

DISCUSSION

¶8 Wisconsin circuit courts have inherent authority to modify criminal
sentences based upon a defendant’s showing of a “new factor.” State v. Harbor,
2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828 (citation omitted). “Deciding
a motion for sentence modification based on a new factor is a two-step inquiry.”
Id., ¶36. The defendant must first demonstrate by clear and convincing evidence
the existence of a new factor. Id. 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.

Id., ¶40 (citation omitted). If the defendant meets his or her burden of
demonstrating that a new factor is present, “the circuit court determines whether
that new factor justifies modification of the sentence.” Id., ¶37.

¶9 “Whether the fact or set of facts put forth by the defendant
constitutes a ‘new factor’ is a question of law.” Id., ¶36 (citation omitted).
“Accordingly, if [the circuit] court determines that the facts do not constitute a
new factor as a matter of law, ‘it need go no further in its analysis’ to decide the

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No. 2021AP2020-CR

defendant’s motion.” Id., ¶38 (citation omitted). We review questions of law
independently. Id., ¶33. Conversely, whether a new factor justifies modification
of a sentence is a matter left to a circuit court’s discretion and is reviewed under
the erroneous exercise of discretion standard. Id., ¶¶33, 37.

I. Mandatory Minimum

¶10 Bear first contends that the State’s comment at his sentencing
hearing regarding a twenty-five-year mandatory minimum sentence constitutes a
new factor. Specifically, during its sentencing argument, the State
commented: “As part of the resolution of this [case], we did amend things to
avoid a mandatory minimum requirement of a [twenty-five-]year sentence.”3 It is
undisputed that this statement was incorrect because, as charged in the criminal
complaint, Count 1 carried a mandatory minimum of five years’ initial
confinement and Count 2 did not carry a mandatory minimum. See WIS. STAT.
§§ 939.616(2), 944.06. The State nonetheless argues, as it did in the circuit court,
that the incorrect information regarding the mandatory minimum does not
constitute a new factor.

¶11 The circuit court concluded that the incorrect statement regarding a
twenty-five-year mandatory minimum did not constitute a new factor because it
“wasn’t really a concern for” the sentencing court in reaching a sentencing
decision. The court also noted that at the plea hearing the sentencing court
accurately outlined the sentence range for the amended Count 1.

3
On appeal, Bear states that there was “repeated use of the [twenty-five]-year time
frame” at his sentencing. While it is true that the State recommended a twenty-five-year
sentence, the “mandatory minimum” for the pre-amended Count 1 was mentioned only once.

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No. 2021AP2020-CR

¶12 “Erroneous or inaccurate information used at sentencing may
constitute a ‘new factor’ if it was highly relevant to the imposed sentence and was
relied upon by the [sentencing] court.” State v. Norton, 2001 WI App 245, ¶9,
248 Wis. 2d 162, 635 N.W.2d 656 (citation omitted), abrogated on other grounds
by Harbor, 333 Wis. 2d 53. “This determination will vary from case to case and
may depend upon the degree to which the sentencing court was influenced by the”
inaccurate information. See State v. Smet, 186 Wis. 2d 24, 34, 519 N.W.2d 697
(Ct. App. 1994).

¶13 We conclude that the State’s incorrect statement regarding the
twenty-five-year mandatory minimum sentence was not highly relevant to Bear’s
sentence, nor did the sentencing court rely upon the incorrect statement. Notably,
during the plea hearing, the court correctly recognized Count 1 as a Class C felony
carrying a confinement range between zero and forty years. During the sentencing
hearing, the court never referenced the State’s incorrect statement regarding the
mandatory minimum when articulating its reasoning for the imposed sentence.
Instead, in imposing Bear’s sentence, the court cited: the public policy behind
preventing child sex offenses even when it is unclear if the sexual conduct was
“forced”; the victim’s young age; Bear’s age; Bear’s recent federal conviction for
the sale of oxycodone; Bear’s result on the Rapid Risk Assessment for Sexual
Offense Recidivism showing a low risk of reoffending; and Bear’s expressed
remorse. The court also noted the “absolutely heinous type of act” committed by
Bear “involving a vulnerable teenager.” According to the court, it would have
imposed “more time” had the State recommended it.

¶14 Bear contends that the incorrect statement regarding the mandatory
minimum “gave a false sense of the seriousness of the punishment [he] would
have faced under the original charge” and “lent credence to the [S]tate’s

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No. 2021AP2020-CR

recommendation” by making that recommendation seem “more lenient and
appropriate.” We disagree. As articulated above, the question is whether the
incorrect information “was highly relevant to the imposed sentence and was relied
upon by the [sentencing] court.” See Norton, 248 Wis. 2d 162, ¶9. Nothing in the
record provides a basis for us to conclude by clear and convincing evidence that
the sentencing court found the State’s incorrect statement to be highly relevant, or
that it relied upon that statement. Instead, it is readily apparent that the court
placed little weight, if any, upon the statement. See Smet, 186 Wis. 2d at 34
(concluding that a scoring error for use of a sentencing guideline was not a new
factor because the court “placed little weight” on the guideline).

¶15 Bear cites State v. Travis, 2013 WI 38, ¶30, 347 Wis. 2d 142, 832
N.W.2d 491, in which our supreme court stated that: “For a reviewing court to
conclude there was actual reliance by [a] circuit court, a circuit court need not
have stated, ‘Because of the existence of this [inaccurate information], you are
sentenced to X years of imprisonment.’” (Second alteration in original.) Travis,
however, dealt with whether a defendant was sentenced upon inaccurate
information, not whether the defendant had shown the existence of a new factor.
See id., ¶17. Regardless, the Travis court required an examination of whether “the
circuit court gave ‘explicit attention’ or ‘specific consideration’ to the inaccurate
information so that the inaccurate information ‘formed part of the basis for the
sentence.’” Id., ¶31 (citation omitted). As explained above, there is no support in
the record for a conclusion that the inaccurate information regarding the
mandatory minimum formed part of the basis for Bear’s sentence. We therefore
conclude that Bear has failed to demonstrate by clear and convincing evidence that
the State’s misstatement regarding the mandatory minimum constitutes a new
factor.

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No. 2021AP2020-CR

II. Fifteen-year sex offender registration

¶16 Similarly, Bear contends that the misunderstanding by his trial
counsel and the sentencing court that the court could order Bear to register as a sex
offender for only fifteen years is a new factor. At sentencing, Bear’s trial counsel
argued that the State failed to provide notice that it was seeking “lifetime
supervision” under WIS. STAT. § 973.125, and that Bear should be subject to
supervision for only fifteen years. The court ruled that “the [fifteen-]year period
applies under these circumstances having reviewed the documents here.” It is
undisputed that Bear’s trial counsel incorrectly argued that Bear should be
required to register as a sex offender for fifteen years, and that the court erred by
initially requiring Bear to register as a sex offender for fifteen years, as Bear was
statutorily required to register as a sex offender for life. See WIS. STAT.
§ 301.45(5)(b)1m.

¶17 In support of his position that these misunderstandings constitute a
new factor, Bear argues that the sentencing court may have sentenced him to a
shorter sentence had it known that it must impose lifetime sex offender
registration. According to Bear, “[h]ad either party correctly informed the
[sentencing] court of the mandatory lifetime sex offender registration, it is
reasonable to assume the need for supervision in the community would have been
reduced and the court would have ordered a shorter sentence.”

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No. 2021AP2020-CR

¶18 The State argues, as it did in the circuit court, that the incorrect
information does not constitute a new factor.4 The circuit court concluded that the
sex offender registration issue did not constitute a new factor because “it was clear
to” the circuit court from the plea hearing “that there was an understanding that
there was going to be a long-term sex offender registry consequence as a result of
[Bear’s] plea.”5

¶19 We conclude that the misunderstanding by Bear’s trial counsel and
the sentencing court that Bear could be ordered to register as a sex offender for
fifteen years is not a new factor. As with Bear’s argument regarding the
mandatory minimum sentence, there is no evidence in the record that would allow
us to conclude by clear and convincing evidence that the court’s misunderstanding

4
At the postconviction hearing, the State commented, “I think there is probably a point
there that the judge may have given [Bear] a shorter sentence knowing that [Bear] could be on the
sex offender registry for the rest of his life. However, then we’re still back[ in] the realm of
speculation at that point. And again the record shows no reliance on that fact to justify
[modifying] the sentence.” Citing the first sentence of the State’s comment, Bear argues on
appeal that the State “conceded that the sentencing court’s decision could have been impacted by
this erroneous information.” We disagree. The State’s comment, taken as a whole, evinces a
clear argument that the court did not rely on the misunderstanding regarding the length of Bear’s
sex offender registration in setting Bear’s sentence. Regardless, even if the State did concede this
issue, “[w]hether the fact or set of facts put forth by the defendant constitutes a ‘new factor’ is a
question of law” that we independently review. See State v. Harbor, 2011 WI 28, ¶36, 333
Wis. 2d 53, 797 N.W.2d 828 (citation omitted).
5
The circuit court also determined that the sex offender registration issue was not a new
factor because sex offender registration is a “collateral consequence.” The State renews the
collateral consequence argument on appeal. It is well established, however, that while a
defendant does not have to be informed of a collateral consequence such as sex offender
registration before entering a guilty or no-contest plea, State v. Bollig, 2000 WI 6, ¶¶16, 27, 232
Wis. 2d 561, 605 N.W.2d 199, if a court does inform the defendant of that consequence, it must
do so accurately, see State v. Brown, 2004 WI App 179, ¶¶8-13, 276 Wis. 2d 559, 687 N.W.2d
543 (stating that a defendant may withdraw his or her plea if he or she had a misunderstanding—
that was not the product of his or her own inaccurate interpretation—of a collateral consequence).
Bear does not argue that he misunderstood the sex offender registration consequence, and we will
not consider that line of inquiry further.

9
No. 2021AP2020-CR

of the sex offender registration requirement was “highly relevant to the imposed
sentence and was relied upon by the [sentencing] court.” See Norton, 248 Wis. 2d
162, ¶9.

¶20 As described previously, the sentencing court agreed that Bear had a
low risk of reoffending and, therefore, the court was not expressly concerned with
protecting the public. See State v. Smith, 2010 WI 16, ¶26, 323 Wis. 2d 377, 780
N.W.2d 90 (sex offender registration statute “reflect[s] an ‘intent to protect the
public and assist law enforcement’ and [is] ‘related to community protection’”
(alterations in original; citations omitted)). The court was focused primarily on
sentencing factors involving the gravity and nature of the offense, the impact of
the crime on the victim, and punishing Bear for his actions.6 And we note that in
doing so, the court stated that it would have imposed a longer sentence had the
State requested it. Thus, Bear fails to present clear and convincing evidence that
any question regarding the length of Bear’s sex offender registry would have
impacted the court’s sentencing decision.

III. Outdated studies

¶21 Lastly, Bear contends that the sentencing court’s reliance on
inaccurate “factual studies” when imposing Bear’s sentence constitutes a new
factor. As noted above, the sentencing court stated that it possessed “a factual
studies file in [its] office” that stated females “younger than 15 that engage in
sex:” (1) “have about triple the suicide and depression rates”; (2) “aren’t well

6
Because we affirm the circuit court’s ruling on the first part of the new factor analysis
(i.e., that there was not a new factor) for the mandatory minimum and sex offender registration
issues, we need not consider the second part of the analysis regarding the court’s discretionary
decision as to whether those factors warranted sentence modification.

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No. 2021AP2020-CR

built physically for becoming a parent”; (3) “often have drops in school
performance”; and (4) have “increased cancer rates.”

¶22 Assuming without deciding that that the sentencing court’s reliance
on the factual studies constitutes a new factor because, as argued by Bear, those
studies contained inaccurate information that the court relied upon, we conclude
the circuit court did not erroneously exercise its discretion by denying Bear’s
motion to modify his sentence despite the existence of this new factor.

¶23 According to Bear, the circuit court “provided no ‘logical rationale’
for rejecting [his] argument that a sentence modification was warranted.”
See McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971)
(discretionary “decision making” “contemplates a process of reasoning”).
However, once we determine that discretion was indeed exercised, we will reverse
that decision only if the circuit court “applied the wrong legal standard or did not
ground its decision on a logical interpretation of the facts,” and “[w]e look for
reasons to sustain a [circuit] court’s discretionary decision.” See State v.
Wiskerchen, 2019 WI 1, ¶18, 385 Wis. 2d 120, 921 N.W.2d 730 (citations
omitted).

¶24 Contrary to Bear’s assertions, the circuit court “made no error of
law, and it explained its reason for concluding that the facts [Bear] presented did
not justify modification of [his] sentence.” See Harbor, 333 Wis. 2d 53, ¶63. The
court properly stated the law when it said: “[I]n order for … the [c]ourt to find a
new factor, [it] would have to have clear and convincing evidence of a new factor.
And then if there was one, it would have to be a factor that was justifying the
modification of a sentence.” (Emphasis added.) The court later reasoned that

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No. 2021AP2020-CR

judges all have different backgrounds …. That doesn’t
mean that I can’t use those things that I have in my brain
from my prior background when I’m going through cases.

And I think that [the sentencing court] had a similar
situation here. He recited and reiterated things that had
happened in prior cases, things that he read that made sense
as it applied to his sentencing in this particular case.

He didn’t say that these things happened to all victims, but
he said, you know, my understanding is that sometimes
victims have these problems.

And he talked about, you know, STDs and that sort of
thing. Whether that was highly relevant to sentencing,
whether it was dicta as the State says, I think is not so
unusual, not so relevant to this instance that it would
warrant any sort of sentence modification just because he
had that information in his office or in his file.

Like I said, it’s difficult to ask [a] judge to present
everything they have ever read about any sort of criminal
background or results of crime on victims, and then to have
to justify what they believe to be accurate. So I don’t think
there’s anything new there that would [a]ffect how [the
sentencing court] sentenced.

The circuit court’s reasoning here was based on a logical interpretation of the
facts. In the court’s view, the facts did not justify modifying Bear’s sentence
because the court did not find the sentencing court’s reference to the studies to be
a significant factor in its decision. The sentencing court was clearly motivated by
the “absolutely heinous type of act involving a vulnerable teenager.” Put
differently, while the sentencing court may have considered the general impact on
sexual assault and incest victims, it specifically considered the nature of Bear’s
actions and the impact upon the victim in this case. As such, the circuit court did
not erroneously exercise its discretion by concluding that the sentencing court’s
reference to the studies did not warrant a modification of Bear’s sentence.

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No. 2021AP2020-CR

¶25 Bear takes issue with this conclusion for two reasons. First, he
argues that “it is not clear [from the transcript] that [the circuit court] applied the
appropriate standard to this new factor under the second prong of the test.” To
that end, Bear contends the court never made a discretionary decision. The State
appears to agree with Bear that the court conducted only an analysis of whether
the factual studies constituted a new factor. We disagree with both Bear and the
State that the court never made a discretionary decision on the justifications for or
against modifying Bear’s sentence. Although the court referenced the relevancy
of the factual studies, those comments were made in the context of whether the
factual studies “[a]ffect[ed]” Bear’s actual sentence to a point that any inaccurate
information contained therein would justify a sentence modification.

¶26 Second, Bear takes issue with the circuit court’s analysis of the
factual studies because, according to Bear, he “did not argue that the sentencing
court’s possession of a file constituted a new factor. Nor did he challenge
everything the sentencing court had ever read, remembered or thought about the
effects of crimes. [Bear’s] claim was that the information contained in the ‘factual
studies’ file … was incorrect ….” Regardless of the merits of Bear’s arguments
regarding other comments that the circuit court made when ruling on his
postconviction motion, the court clearly analyzed Bear’s claim that the factual
studies were inaccurate. The record supports the circuit court’s finding that the
any inaccurate information in the factual studies did not provide a basis to modify
Bear’s sentence.

By the Court.—Judgment and order affirmed.

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

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