State v. Darin E. Haizel

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.
June 2, 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. 2019AP2324-CR Cir. Ct. No. 2010CF88

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DARIN E. HAIZEL,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Washington County:
JAMES H. MUEHLBAUER, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

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. 2019AP2324-CR

¶1 PER CURIAM. Darin E. Haizel appeals from a circuit court order
denying his motion for sentence modification. He also appeals from the order
denying his motion for reconsideration. Haizel contends that the circuit court
violated constitutional double jeopardy protections when it removed the possibility
of a risk reduction sentence (RRS) from one of his terms of confinement. Haizel
also contends that the Department of Corrections’ (DOC) refusal to reduce
Haizel’s security classification status to minimum custody due to his sentence
structure constitutes a new factor justifying sentence modification. Upon review,
we affirm.

BACKGROUND

¶2 On March 26, 2010, the State charged Haizel with one count of
attempted first-degree intentional homicide, three counts of recklessly endangering
safety with the dangerous weapon penalty enhancer, and one count of intentionally
pointing a firearm at an officer. The charges stemmed from a shootout between
Haizel and Washington County sheriff’s deputies. Haizel ultimately pled guilty to
two counts of reckless endangerment with a dangerous weapon; the third was
dismissed outright. The attempted first-degree intentional homicide and
intentionally pointing a firearm at an officer counts were dismissed and read in for
sentencing.

¶3 At the sentencing hearing, the circuit court sentenced Haizel to
thirteen years’ imprisonment on the first reckless endangerment count, bifurcated
as eight years of initial confinement and five years of extended supervision. On
the second reckless endangerment count, the circuit court also sentenced Haizel to
thirteen years’ imprisonment, bifurcated as eight years of initial confinement and

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five years of extended supervision. The circuit court ordered the sentences to run
consecutive to one another.

¶4 Following the circuit court’s imposition of sentence, Haizel’s
counsel asked the court whether the sentence was “risk reduction eligible.” The
circuit court explained that a risk reduction sentence is “the possibility of getting a
reduced sentence serving 75 percent rather than a hundred percent of the
confinement time.” The circuit court found that “a risk reduction would be
appropriate.” The circuit court asked Haizel whether he was willing to participate
in the programs necessary to receive “a risk reduction type sentence.” When
Haizel responded affirmatively, the circuit court stated that it “will find Mr. Haizel
eligible for a risk reduction sentence.”

¶5 On September 12, 2019, Haizel moved to modify his sentence,
asking the circuit court to reduce his first term of confinement by twenty-five
percent (two years). Haizel argued that the circuit court structured his sentence
“with the understanding that he would be rewarded for his participation in RRS
programming on two consecutive terms of confinement.” The motion stated that
due to Haizel’s “consecutive sentence structure, it was impossible for him to
achieve one of his RRS plan requirements—attaining minimum custody.” Thus,
Haizel argued that he could not attain the benefit of RRS on his first term of
confinement despite fully complying with the other requirements in his RRS plan.
Haizel argued that the impossibility of early release on the initial term of
confinement constituted a new factor warranting sentence modification.

¶6 The circuit court denied the motion, stating that it “never stated, and
never intended Haizel to be eligible for RRS on both sentences.” The circuit court
referenced the sentencing transcript, noting that it referred to RRS in the singular,

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not in the plural, thus intending to limit RRS to Haizel’s second sentence only.
The circuit court concluded that Haizel failed to establish a new factor justifying
sentence modification.

¶7 Haizel moved for reconsideration, again arguing that the circuit
court intended to make both of Haizel’s eight-year consecutive sentences RRS
eligible. Haizel also argued that by eliminating RRS on the first sentence, the
circuit court effectively increased his sentence, thereby violating constitutional
double jeopardy protections.

¶8 The circuit court denied the motion but did note that the judgment of
conviction incorrectly reflected that both sentences were RRS eligible. The circuit
court corrected that clerical error by amending the judgment of conviction to
indicate RRS eligibility only for Haizel’s second sentence. This appeal follows.

DISCUSSION

¶9 On appeal, Haizel argues that the circuit court’s “removal of RRS on
[his] first term of confinement … violates double jeopardy.” He also contends that
“DOC’s refusal to reduce [his] security status … to minimum custody during his
first term of confinement because of his sentence structure is a new factor that
justifies sentence modification.” (Bolding and some capitalization omitted.) We
address each issue.

A. Double Jeopardy

¶10 Whether a defendant’s double jeopardy protections have been
violated is a question of law we review de novo. See State v. Steinhardt, 2017 WI
62, ¶11, 375 Wis. 2d 712, 896 N.W.2d 700. “[T]he analytical touchstone for
double jeopardy is the defendant’s legitimate expectation of finality in the

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sentence ….” State v. Jones, 2002 WI App 208, ¶10, 257 Wis. 2d 163, 650
N.W.2d 844. That expectation may be influenced by many factors, such as
completion of the sentence, the passage of time, the pendency of an appeal, or the
defendant’s misconduct in obtaining sentence. Id. If a defendant has a legitimate
expectation of finality in his sentence, then an increase in that sentence violates
double jeopardy. Id., ¶9. However, where the defendant cannot show that his
sentence was increased and the sentence remains the same, no double jeopardy
violation occurs. See State v. Amos, 153 Wis. 2d 257, 281-82, 450 N.W.2d 503
(Ct. App. 1989).

¶11 Haizel’s double jeopardy argument centers on his contention that the
circuit court imposed, and then removed, RRS eligibility from his first sentence.
This argument is flawed because at no point during the sentencing hearing did the
circuit court impose RRS on both of Haizel’s sentences; indeed, the circuit court
repeatedly referred to RRS in the singular, stating multiple times that Haizel was
eligible for “a risk reduction sentence.” (Emphasis added.) The circuit court
twice clarified its intention to impose RRS on only one sentence in both its order
denying Haizel’s motion for sentence modification and its order denying Haizel’s
motion for reconsideration. Because the circuit court never imposed RRS on both
of Haizel’s sentences, Haizel’s sentence was not unconstitutionally increased.
Thus, double jeopardy was not violated.

B. New Factor

¶12 Haizel also contends that the DOC’s failure to place him in
minimum custody status constitutes a new factor warranting sentence
modification. We disagree.

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¶13 “Within certain constraints, Wisconsin circuit courts have inherent
authority to modify criminal sentences.” State v. Harbor, 2011 WI 28, ¶35, 333
Wis. 2d 53, 797 N.W.2d 828 (citing State v. Hegwood, 113 Wis. 2d 544, 546, 335
N.W.2d 399 (1983)). A defendant seeking sentence modification has the burden
to demonstrate by clear and convincing evidence the existence of a new factor.
State v. Franklin, 148 Wis. 2d 1, 8-9, 434 N.W.2d 609 (1989). A new factor is a
fact or set of facts “highly relevant to the imposition of sentence” but unknown to
the court at the time of sentencing, either because the factor did not yet exist or it
was overlooked by all parties. Harbor, 333 Wis. 2d 53, ¶40. Whether a fact or set
of facts constitutes a new factor is a question of law. Id., ¶33. If the facts do not
constitute a new factor as a matter of law, the analysis ends. Id., ¶38.

¶14 At the time of Haizel’s sentencing hearing, an RRS-eligible inmate
was eligible for release on extended supervision after serving no less than seventy-
five percent of his or her sentence if he or she completed the programming or
treatment plan developed by the DOC and maintained a good conduct record while
confined. See WIS. STAT. § 302.042 (2009-10).1 The RRS plan the DOC
developed for Haizel required him to attain a “minimum” custody classification.
However, the DOC denied Haizel’s request for reclassification due to his
consecutive sentences. As a result, Haizel contends that it was impossible for him
to successfully complete the RRS program during his first of the two consecutive
sentences and that this impossibility constitutes a new factor.

1
Risk reduction sentences were eliminated as a sentencing option in 2011. See 2011
Wis. Act 38, §§ 13, 92.

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No. 2019AP2324-CR

¶15 We conclude that under the circumstances of this case, Haizel’s
inability to achieve a minimum custody classification during his first term of
initial confinement is not a new factor because Haizel’s completion of the RRS
program was not “highly relevant” to his original sentence. The record supports
our conclusion. First, as we have just discussed, the RRS program was not
intended to be available during his first sentence. Second, in explaining its
sentencing rationale, the circuit court did not mention the RRS program. The
circuit court summarized the facts of the case, discussed the relevant sentencing
factors, imposed Haizel’s sentence, and informed Haizel of the conditions of his
extended supervision. The circuit court then addressed costs, fees, and sentence
credit before asking the parties if they wished to discuss anything further. Only
then did defense counsel ask whether the sentence was “risk reduction eligible.”
Because Haizel’s participation in the RRS program was not raised until after the
circuit court imposed his sentence, Haizel’s participation in that program was not,
and could not have been, “highly relevant to the imposition of sentence.” Harbor,
333 Wis. 2d 53, ¶40 (citation omitted). Accordingly, Haizel’s inability to reach
minimum security status is a not a new factor warranting sentence modification.

¶16 For the foregoing reasons, we affirm the circuit court.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).

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