State v. Santiago B. Rios

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.
February 16, 2022
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. 2020AP2132-CR Cir. Ct. No. 2019CF151

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SANTIAGO B. RIOS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: FAYE M. FLANCHER, Judge. Affirmed.

¶1 GROGAN, J.1 Santiago B. Rios appeals from a judgment entered
on his no contest pleas to misdemeanors for criminal trespass to dwelling, criminal

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. 2020AP2132-CR

damage to property, and disorderly conduct, all as a repeater. He also appeals
from an order denying his postconviction motion seeking resentencing or sentence
modification. Rios raises two issues on appeal. First, Rios argues that the circuit
court erroneously exercised its discretion because it failed to consider his drug
addiction in imposing sentence and was otherwise deficient in applying the
relevant factors as set forth in McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512
(1971). Second, Rios argues that the unforeseen disruption to drug treatment
programming in the prison system caused by the COVID-19 pandemic constitutes
a new factor warranting sentence modification.

¶2 This court previously ordered the State to file a responsive brief after
the State repeatedly failed to do so despite multiple notifications from the court
reminding it of its obligation to submit a response. See State v. Rios,
2020AP2132-CR, unpublished slip op. (WI App Sept. 29, 2021). That order
stated:

IT IS HEREBY ORDERED that the State of Wisconsin
shall file a respondent’s brief on this appeal that fully
complies with WIS. STAT. RULE 809.19, and, in conformity
with RULE 809.19(3)(a)1a, the brief shall be filed within
thirty days of the issuance of this order. Rios will then
have fifteen days to file a reply brief or a letter that he will
not file a brief. See RULE 809.19(4).

IT IS ALSO HEREBY ORDERED that if the State of
Wisconsin does not file the brief required by the previous
paragraph, such failure will be taken as an egregious act
amounting to its abandonment of its right to contest
Rios’[s] appeal, and, accordingly, this court will summarily
reverse the circuit court’s postconviction order and remand
the matter to the circuit court with directions to conduct a
resentencing. See Charolais Breeding Ranches, Ltd. v.
FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct.
App. 1979) (“Respondents on appeal cannot complain if
propositions of appellants are taken as confessed which
they do not undertake to refute.” (citation omitted)).

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No. 2020AP2132-CR

Rios, No. 2020AP2132-CR, ¶4. The State filed a response brief in accordance
with that order, and Rios subsequently filed a reply brief. This court affirms.

I. BACKGROUND

¶3 In February 2019, a FedEx driver reported having seen a white truck
with a tinted front license plate parked near a trailer container near the Dick’s
Sporting Goods located in the Village of Mount Pleasant in Racine County. The
driver further reported having seen two males with beards, that one of the men was
standing near the white truck, and that the second man jumped out of the trailer
container. A police officer spoke with the store’s manager, who confirmed the
store had been leasing the trailer for storage purposes and that the trailer’s lock
had been cut off. According to the manager, no one had been given consent to
enter or remove anything from the container. Although the manager was initially
unaware of whether any items were missing, it was later confirmed that no items
had been taken from the Dick’s Sporting Goods container.

¶4 After speaking with the FedEx driver and store manager, an officer
sent out an “attempt to locate” notification based on the description of the white
truck and two suspects. An officer who received the “attempt to locate” notice
subsequently observed two males walking away from a white truck matching the
vehicle description and into a nearby residence. Additional officers arrived on the
scene, one of whom looked through the truck’s windows and noticed what
appeared to be a bolt cutter sticking out from under the passenger seat. A male
later identified as Rios answered the door when officers approached the residence,
and Rios was detained at that time.

¶5 Officers learned the truck belonged to A.H., Rios’s brother’s
girlfriend. A.H. gave consent to search the vehicle and officers collected the bolt

3
No. 2020AP2132-CR

cutter as evidence. After obtaining a search warrant for Rios’s phone, a detective
reviewed the phone’s location history, which “show[ed] Rios’s phone was located
behind Dick’s Sporting Goods in the immediate vicinity of the trailer at the time of
the burglary[.]”

¶6 The State thereafter charged Rios with one count of felony burglary
of a locked, enclosed cargo portion of a truck or trailer as party to a crime and as a
repeater, contrary to WIS. STAT. §§ 943.10(1m)(d), 939.50(3)(f), 939.05, and
939.62(1)(b). After confirming no items had been taken from the Dick’s Sporting
Goods trailer container, the State amended the charges to one count of criminal
trespass as a repeater (WIS. STAT. §§ 943.14(2), 939.51(3)(a), and 939.62(1)(a)),
one count of criminal damage to property as a repeater (WIS. STAT. §§ 943.01(1),
939.51(3)(a), and 939.62(1)(a)), and one count of disorderly conduct as a repeater
(WIS. STAT. §§ 947.01(1), 939.51(3)(b), and 939.62(1)(a)).

¶7 Rios entered no contest pleas to all counts on December 16, 2019,
and both the State and Rios argued for time served, which amounted to
approximately ten months.2 After confirming Rios’s misdemeanor convictions
“over the past few years[,]” the court accepted Rios’s no contest pleas, heard
argument from counsel for both parties, and briefly addressed Rios’s assertion that
he would benefit from drug treatment. The following exchange between Rios and
the circuit court, along with the court’s sentencing decision, ensued:

THE COURT: Tell me how a 40 year old man with 14
years of education continues to commit crimes? Tell me,
because it’s been pretty nonstop for you, Mr. Rios.

2
Rios had been in custody since February 7, 2019, based on revocations in Racine
County Case Nos. 2017CM1436, 2017CM1437, 2018CM1610, and 2018CM166.

4
No. 2020AP2132-CR

[RIOS]: I have no answer for that, your Honor. It’s just
bad decisions.

THE COURT: I just don’t get it.

[RIOS]: Well, your Honor, I sit here to tell you the God
honest truth is -- I mean I probably could benefit from
some type of treatment probably.

THE COURT: What kind of treatment do you think that
you need, Mr. Rios?

[RIOS]: Drug treatment.

THE COURT: Uh-huh.

[RIOS]: I had been hurt on the job at work, and ever since
I’ve been at the hospital I’ve been on painkillers and that’s
been a problem for me.

THE COURT: So, Mr. Rios, again you are 40 years old.
You have 14 years of education. You had amazing
employment as a journeyman carpenter where you were
earning $37.47 an hour working full-time. And I look at
your underlying record which goes back to 1997, and it is
significant for a number of felony and misdemeanor
convictions.

It’s stunning, you know, you are telling me today that
with this record going back this far that you now need drug
treatment and that it’s never been requested or addressed in
the past. I’m just not sure how believable that is, Mr. Rios.

There are a number of factors I am required to consider
at sentencing. Punishment, rehabilitation, protection of the
community and deterrence of others. All of those factors
are implicated in sentencing you today.

You and one other enter the shipping area of Dick’s
Sporting Goods. A FedEx driver sees what is going on
here. A lock from one of their trailers was cut off.
Ultimately nothing was stolen, but you are in an area where
you had absolutely no business being.

I cannot follow a credit for time served
recommendation, Mr. Rios. It de minimizes the continued
involvement in the criminal justice system. It de minimizes
the fact that you just can’t keep yourself out of the criminal
justice system.

5
No. 2020AP2132-CR

Your record, I don’t know where these aliases were all
used. You have a number of aliases listed in the criminal
information.

I am sentencing you on each count[3] to two years in
prison; one year of initial incarceration, one year extended
supervision. I will run each of those counts concurrent to
one another, but it will be consecutive to revocation.

Terms and conditions of extended supervision,
Mr. Rios, absolute sobriety; no alcohol and no controlled
substances to be monitored by random UA’s and
breathalyzers. AODA treatment, which you indicate that
you need, and any other treatment, counseling or
programming recommended for you by the Department of
Corrections.

You will obtain and maintain full-time employment.
There is no restitution owing in this case. I am going to
order while on extended supervision fifty hours of
community service work, and order that you be in full
compliance with any family court orders, including
payment of child support.

Finally I am ordering that you pay the court costs, costs
of supervision, mandatory DNA surcharges associated with
this case. You would be entitled to credit for time served.
Again it is a consecutive sentence. You would not be
entitled to duplicate credit, Mr. Rios. As a -- these aren’t
felonies. Anything I may have neglected …?

….

[DEFENSE COUNSEL]: Is he eligible for any treatment
while in the institution?

THE COURT: He’s not eligible for Challenge
Incarceration Program given his age. He may be eligible
for substance abuse programming. I will find him eligible
after 80 percent of the initial incarceration is completed.

3
Rios incorrectly states that the circuit court sentenced him to “two years of
imprisonment on both counts one and two” but “did not impose a sentence with respect to count
three or otherwise mention it during sentencing.” The circuit court’s statement that it was
imposing the two-year bifurcated sentence “on each count” unquestionably encompasses count
three. (Emphasis added.)

6
No. 2020AP2132-CR

The circuit court then confirmed with both parties that all issues had been
addressed prior to concluding the hearing.

¶8 Rios thereafter filed a motion for postconviction relief, arguing he
was entitled to resentencing or sentence modification because the circuit court
failed to consider and apply the McCleary factors, because the circuit court failed
to consider his need for drug treatment, or because COVID-19 presented a new
factor because it prevented him from obtaining the drug treatment that was
ultimately ordered at sentencing.4 In support of his argument, Rios asserted he
had attended drug rehabilitation treatment “[i]n the early 2000s,” that he was
prescribed Percocet, which he described as “a combination medication comprised
of the opioid oxycodone and acetaminophen[,]” after being shot twice in 2008,
that “[h]e was again prescribed oxycodone-containing medication” in 2011 after
suffering a job-related hernia, and that he “has struggled with opioid dependency
ever since.”

¶9 In a written order, the postconviction court denied Rios’s motion
without a hearing, stating “[w]hile the Court did not recite on the record all of
[Rios’s] convictions going back to 1997, they were all certainly considered[]” and
that “[t]he sentencing transcript indicates this Court did consider the nature of the
offense, the character of the defendant and the need to protect the public.” The
postconviction court went on to state that it was unclear “what, if any, grievances
the defendant has regarding the sentence[,]” particularly in light of the fact that

4
In May 2020, prior to obtaining appellate counsel, Rios filed a handwritten, pro se
motion seeking sentence modification. Appellate counsel thereafter filed a motion seeking
postconviction relief in November 2020. All references to Rios’s postconviction motion are to
the November 2020 filing.

7
No. 2020AP2132-CR

Rios, at sentencing, had accepted the consequences of his actions, as well as that it
had not “readily dismiss[ed]” Rios’s comments regarding a drug addiction during
sentencing. As to Rios’s argument that the COVID-19 pandemic presented a new
factor that frustrated his ability to receive the ordered drug treatment, the
postconviction court rejected that argument because COVID-19 was neither “a
fact or circumstance that was highly relevant to the imposition of the sentence[]”
nor “connected to the sentencing decision.” This appeal follows.

II. DISCUSSION

¶10 On appeal, Rios argues that the circuit court erroneously exercised
its discretion at sentencing by failing to consider his drug addiction and by
otherwise improperly applying the McCleary factors, as well as that the disruption
to drug treatment programming itself is a new factor warranting resentencing or
sentence modification. For the reasons that follow, this court affirms.

A. The circuit court did not erroneously exercise its sentencing discretion.

¶11 “It is a well-settled principle of law that a circuit court exercises
discretion at sentencing[,]” and appellate review “is limited to determining if
discretion was erroneously exercised.” State v. Gallion, 2004 WI 42, ¶17, 270
Wis. 2d 535, 678 N.W.2d 197. “Discretion is not synonymous with decision-
making. Rather, the term contemplates a process of reasoning” that “must depend
on facts that are of record or that are reasonably derived by inference from the
record and a conclusion based on a logical rationale founded upon proper legal
standards.” McCleary, 49 Wis. 2d at 277. A circuit court erroneously exercises
its discretion if it fails to apply the proper legal standard. State v. Jackson, 2014
WI 4, ¶43, 352 Wis. 2d 249, 841 N.W.2d 791. If a circuit court properly exercises
discretion, “‘the appellate court follows a consistent and strong policy against

8
No. 2020AP2132-CR

interference with the discretion of the trial court in passing sentence.’” Gallion,
270 Wis. 2d 535, ¶18 (citation and brackets omitted).

¶12 A court must consider three primary factors at sentencing:
(1) protection of the public; (2) the gravity of the offense; and (3) the defendant’s
character. State v. Williams, 2018 WI 59, ¶46, 381 Wis. 2d 661, 912 N.W.2d 373;
see also Gallion, 270 Wis. 2d 535, ¶40; WIS. STAT. § 973.017(2).5 The court may
also consider the following secondary factors: (1) past record of criminal
offenses; (2) history of an undesirable pattern of behavior; (3) the defendant’s
personality, character, and social traits; (4) results of a presentence investigation;
(5) whether the crime was of a vicious or aggravated nature; (6) degree of
defendant’s culpability; (7) the defendant’s demeanor at trial; (8) the defendant’s
age, educational background, and employment history; (9) whether the defendant
shows remorse, repentance, or cooperativeness; (10) need for rehabilitative
control; (11) rights of the public; and (12) length of pretrial detention. Harris v.
State, 75 Wis. 2d 513, 519-20, 250 N.W.2d 7 (1977). The weight given to each

5
WISCONSIN STAT. § 973.017(2) provides:

(2) GENERAL REQUIREMENT. When a court makes a sentencing
decision concerning a person convicted of a criminal offense
committed on or after February 1, 2003, the court shall consider
all of the following:

(ad) The protection of the public.

(ag) The gravity of the offense.

(ak) The rehabilitative needs of the defendant.

(b) Any applicable mitigating factors and any applicable
aggravating factors, including the aggravating factors specified
in subs. (3) to (8).

9
No. 2020AP2132-CR

factor is within the circuit court’s discretion. State v. Wickstrom, 118 Wis. 2d
339, 355, 348 N.W.2d 183 (Ct. App. 1984).

¶13 A proper exercise of discretion requires that “[t]he application of
sentencing standards … be set forth on the record[.]” State v. Bolstad, 2021 WI
App 81, ¶13, 399 Wis. 2d 815, 967 N.W.2d 164 (citing Gallion, 270 Wis. 2d 535,
¶¶8, 51); see also McCleary, 49 Wis. 2d at 281 (“requisite to a prima facie valid
sentence is a statement by the trial judge detailing his reasons for selecting the
particular sentence imposed.”); WIS. STAT. § 973.017(10m)(a) (“The court shall
state the reasons for its sentencing decision and … shall do so in open court and on
the record.”). “[T]he requirement of an on-the-record explanation will serve to
fulfill the McCleary mandate that discretion of a sentencing judge be exercised on
a ‘rational and explainable basis.’ This will assist appellate courts in determining
whether the circuit court properly exercised its discretion.” Gallion, 270 Wis. 2d
535, ¶49 (quoting McCleary, 49 Wis. 2d at 276). A court can comply with this
requirement without explicitly identifying the sentencing factors so long as it is
clear that the court considered the sentencing factors. State v. Wegner, 2000
WI App 231, ¶7, 239 Wis. 2d 96, 619 N.W.2d 289.

¶14 While a circuit court is required to explain the reasons for its
sentencing decision, “[h]ow much explanation is necessary … will vary from case
to case.” Gallion, 270 Wis. 2d 535, ¶39. “Requiring explanation of the sentence
imposed ‘is not intended to be a semantic trap for circuit courts. It is also not
intended to be a call for … ‘magic words.’” Bolstad, 399 Wis. 2d 815, ¶16
(omission in original; citation omitted). On review, this court must “closely
scrutinize the record to ensure that ‘discretion was in fact exercised and the basis
of that exercise of discretion [is] set forth.’” Gallion, 270 Wis. 2d 535, ¶4
(quoting McCleary, 49 Wis. 2d at 277; alteration in original).

10
No. 2020AP2132-CR

¶15 A circuit court also “erroneously exercises its discretion in imposing
a sentence if it ‘actually relies on clearly irrelevant or improper factors.’”
Williams, 381 Wis. 2d 661, ¶45 (quoting State v. Alexander, 2015 WI 6, ¶17, 360
Wis. 2d 292, 858 N.W.2d 662); State v. Harris, 2010 WI 79, ¶3, 326 Wis. 2d 685,
786 N.W.2d 409. Certain factors—such as “race or national origin, gender,
alleged extra-jurisdictional offenses, and the defendant’s or victim’s religion”—
are inherently improper considerations at sentencing. Alexander, 360 Wis. 2d
292, ¶23 (footnotes omitted). “To establish error, a defendant must prove by clear
and convincing evidence that a circuit court relied on improper factors.”
Williams, 381 Wis. 2d 661, ¶45.

¶16 It is not enough, however, to establish consideration of an improper
factor; rather, “[a] defendant must prove both that the factor was improper and that
the circuit court actually relied on it.” Id.; see also Alexander, 360 Wis. 2d 292,
¶18 (describing the same two-step framework in the context of an allegation the
sentencing court relied on inaccurate information). To determine whether a circuit
court actually relied on an improper factor, “[w]e review the circuit court’s
articulation of its basis for sentencing in the context of the entire sentencing
transcript to determine whether the court gave ‘explicit attention’ to an improper
factor, and whether the improper factor ‘formed part of the basis for the
sentence.’” Alexander, 360 Wis. 2d 292, ¶25 (citations omitted).

1. The McCleary Factors and Rios’s Purported Drug Addiction

¶17 Rios asserts that the circuit court erroneously exercised its
sentencing discretion because it was deficient in assessing and applying the
required McCleary factors and because it “declined to consider Mr. Rios’s drug
addiction in determining the severity of his sentence.” Rios largely focuses on the

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No. 2020AP2132-CR

latter of these two arguments. According to Rios, the circuit court failed to use a
logical process of judicial reasoning because it “expressly refused to consider
Mr. Rios’s drug addiction in determining the severity of the sentence” despite also
imposing conditions “implicitly recogniz[ing] the truthfulness of Mr. Rios’s
assertion” that he has a drug addiction and would benefit from treatment when it
required drug treatment and made him eligible for substance abuse programming.
This court rejects Rios’s assertion.

¶18 As noted above, the circuit court was required to consider three
primary factors, often referred to as the McCleary factors, at sentencing—
protection of the public, gravity of the offense, and the defendant’s character—and
it was required to explain its sentencing decision in light of those factors on the
record. See Williams, 381 Wis. 2d 661, ¶46; Gallion, 270 Wis. 2d 535, ¶¶40-43.
Here, the circuit court specifically identified “a number of factors” it was required
to consider, namely “[p]unishment, rehabilitation, protection of the community
and deterrence of others.” Having reviewed the sentencing transcript, this court is
satisfied that the circuit court, despite its brevity, sufficiently considered and
addressed these primary sentencing factors in light of the sentence imposed.

¶19 First, the circuit court specifically—and repeatedly—noted Rios’s
lengthy criminal record and his inability to refrain from engaging in criminal
activity (both felonies and misdemeanors) over the course of multiple decades.
These statements pertain to both consideration of Rios’s recidivistic character—
although the circuit court also noted multiple positive characteristics—as well as
the need to protect the public from an individual who continues to commit crimes.
Second, the circuit court explained that following the recommended time-served
sentence would “de minimize” Rios’s continued criminal activity. The circuit
court therefore tied its sentencing decision to Rios’s ongoing criminal activity, as

12
No. 2020AP2132-CR

imposing a more significant term of imprisonment than what had been
recommended served multiple purposes: (1) protecting the public; (2) punishing
Rios for his continued poor choices; and (3) deterring others who may similarly
contemplate engaging in repeated criminal activity.

¶20 Although the circuit court did not explicitly reference the gravity of
the offense, it nevertheless satisfied McCleary’s requirement because the record
establishes that it considered the gravity of the offense. See Wegner, 239 Wis. 2d
96, ¶7 (“Proper sentencing discretion can exist without a delineation of sentencing
factors; what is required is a consideration of the sentencing factors.”). Here, the
circuit court clearly considered the gravity of the offense when it acknowledged
both that nothing was ultimately stolen from Dick’s Sporting Goods but that
regardless of that fact, Rios was “in an area where [he] had absolutely no business
being.”

¶21 Although its sentencing remarks were brief, the circuit court did
more than just address the protection of the public, punish Rios, and address
deterrence to others—the court also fashioned a sentence that accounted for Rios’s
rehabilitative needs. Specifically, it ordered drug treatment and found Rios
eligible for the Substance Abuse Program despite its skepticism that Rios’s drug
addiction had not been addressed in the past. This, too, takes Rios’s personal
characteristics and rehabilitative needs into account.

¶22 Rios, however, complains that the circuit court did not apply the
primary factors or specifically explain “why the Mc[Cl]eary factors justified the
severity of the chosen sentence.” However, in explaining why it was not
accepting the recommended time-served sentence—because it would “de
minimize” Rios’s continued criminal activity—the circuit court was also

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No. 2020AP2132-CR

explaining why it was imposing a longer sentence and why it was to run
consecutive to Rios’s unrelated revocation sentence. As previously noted, “[h]ow
much explanation is necessary … will vary from case to case[,]” Gallion, 270
Wis. 2d 535, ¶39, and so long as a circuit court considers all of the required
factors, as it did here, “[t]he weight to be given each factor is within the discretion
of the trial court” and “[t]he sentence may be based on any or all of the three
primary factors after all relevant factors have been considered[,]” see Wickstrom,
118 Wis. 2d at 355. The circuit court unquestionably gave the most weight to
protecting the public and to Rios’s character—namely, his inability to refrain from
engaging in criminal activity.

¶23 At its core, Rios takes umbrage with the length of the incarceration
imposed—particularly in light of the fact that despite running the sentences on
each of the three charges concurrent to one another, the circuit court imposed the
sentences consecutive to the revocation sentence Rios was then serving—and
apparently believes that having a drug addiction should entitle him to a lesser term
of incarceration than he received. However, the weight to be given to his drug
addiction as it relates to sentencing was within the circuit court’s discretion, and as
explained above, the circuit court did consider his drug addiction. That the circuit
court did not give his drug addiction the mitigating weight Rios desired does not
render its exercise of discretion erroneous, and the circuit court was certainly

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No. 2020AP2132-CR

under no obligation to impose a shorter sentence simply because Rios has a drug
addiction.6

¶24 Based on the foregoing, Rios has not established that the circuit
court erroneously exercised its discretion on the grounds that it did not adequately
consider and address the primary factors—protection of the public, gravity of the
offense, and the defendant’s characteristics—or his drug addiction in imposing
sentence.

2. Irrelevant or Improper Factor

¶25 Rios also suggests that the circuit court relied on an improper or
irrelevant factor—that the charging documents reflected Rios has used numerous
aliases—in imposing sentence.7 Having reviewed the record and sentencing
transcript as a whole, this court concludes Rios has not established by clear and
convincing evidence that the circuit court actually relied on an improper or
irrelevant factor at sentencing.

¶26 During the sentencing hearing, the circuit court stated: “Your
record, I don’t know where these aliases were all used. You have a number of

6
It is noteworthy that in arguing he received a more “severe” sentence than warranted in
light of his drug addiction, Rios seemingly ignores that despite facing a total of six years of
imprisonment on the three charges at issue here, he ultimately served a fraction of that total time
because the circuit court chose to run the sentences on these three charges concurrent to one
another.
7
On appeal, as he did in his postconviction motion, Rios identifies reliance on an
irrelevant or improper factor as one way in which a circuit court can erroneously exercise its
sentencing discretion. Specifically, he suggests the circuit court’s observation that Rios has
numerous aliases supports a finding that the court erroneously exercised its discretion because
whether Rios has aliases “is irrelevant to the sentence.” Although this argument is largely
undeveloped, this court addresses it for the sake of completeness in addressing Rios’s assertion
that the circuit court erroneously exercised its sentencing discretion.

15
No. 2020AP2132-CR

aliases listed in the criminal information.” When viewed as a whole, it is clear this
single comment regarding Rios’s aliases was part of the circuit court’s overall
reflection on Rios’s inability to refrain from engaging in both felony and
misdemeanor level criminal activity over a period spanning two decades, and past
criminal activity is unquestionably a proper factor for consideration at sentencing.
See Harris, 75 Wis. 2d at 519-20. Rios has therefore failed to establish by clear
and convincing evidence that the circuit court’s comment about his multiple
aliases was an improper or irrelevant factor.

¶27 In summary, the circuit court neither failed to properly consider the
required McCleary factors and Rios’s drug addiction nor relied on an improper or
irrelevant factor in imposing sentence. Accordingly, the circuit court did not
erroneously exercise its sentencing discretion.

B. Rios has not established the existence of a new factor.

¶28 “Deciding a motion for sentence modification based on a new factor
is a two-step inquiry.” State v. Harbor, 2011 WI 28, ¶36, 333 Wis. 2d 53, 797
N.W.2d 828. Whether a fact or a set of facts “constitutes a ‘new factor’ is a
question of law.” 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.”
Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). The defendant
bears the burden of establishing the existence of a new factor “by clear and
convincing evidence.” Harbor, 333 Wis. 2d 53, ¶36.

¶29 If a new factor exists, the defendant is not automatically entitled to
sentence modification. Id., ¶37. “Rather, if a new factor is present, the circuit

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No. 2020AP2132-CR

court determines whether that new factor justifies modification of the sentence.”
Id. Whether a new factor justifies sentence modification is within the circuit
court’s discretion. Id. When the circuit court concludes as a matter of law that
there is no new factor, it is unnecessary to “determine whether, in the exercise of
its discretion, the sentence should be modified.” Id., ¶38. “[I]f the court
determines that in the exercise of its discretion, the alleged new factor would not
justify sentence modification,” it is unnecessary for the court to “determine
whether the facts asserted by the defendant constitute a new factor as a matter of
law.” Id.

¶30 On appeal, Rios argues that “the unforeseen disruption to drug
treatment programming in Wisconsin prisons constitutes a new factor and warrants
a sentence modification.” (Capitalization altered.) He also argues that the
postconviction court, in denying his postconviction motion, failed to discuss
“whether the suspension of drug rehabilitation on account of COVID-19
constituted a new factor.” However, Rios did not argue in his postconviction
motion that it was the unforeseen disruption to drug treatment programming
caused by COVID-19 that constituted the “new factor” warranting resentencing or
sentence modification. Rather, in his postconviction motion, Rios argued that
“[t]he COVID-19 pandemic is a new factor that frustrates Mr. Rios’[s] ability to
receive the drug treatment he needs.” (Emphasis added.) In support of that
argument, Rios repeatedly referred to COVID-19 as a new factor in his
postconviction brief: (1) “COVID-19 is ‘highly relevant’ to his sentence”;
(2) “COVID-19 is a new fact that clearly undermines, if not entirely negates, the
rehabilitative intent of Mr. Rios’[s] sentence[]”; (3) “COVID-19, and its effect on
Mr. Rios’[s] drug treatment needs, is just the sort of factor that justifies a sentence
modification.” (Emphasis added.)

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No. 2020AP2132-CR

¶31 While the emergence of COVID-19 and the subsequent disruption to
drug treatment programming available within the prison system may be connected,
Rios’s general focus on COVID-19 itself in his postconviction brief is different
than his appellate argument that it was specifically the disruption to drug
treatment programing itself that constitutes the new factor. Because Rios first
raises the disruption-as-new-factor argument on appeal and the postconviction
court therefore did not have an opportunity to consider that specific argument, this
court declines to address Rios’s new factor argument further.8 See In re
Guardianship of Willa L., 2011 WI App 160, ¶¶24, 27, 338 Wis. 2d 114, 808
N.W.2d 155 (rejecting argument that appellate court “must address the merits of
new legal arguments made on appeal so long as the arguments somehow relate to
an issue that was raised before the circuit court” and explaining that although an
appellate court may address a new argument raised on appeal, it is not required to
do so).

Even if this court addressed the merits of Rios’s new argument on appeal—that the
8

disruption to programming itself is a new factor—it would ultimately reject this argument
because Rios has not established that drug treatment programming, while part of Rios’s sentence,
was highly relevant to the sentence imposed. See Rosado v. State, 70 Wis. 2d 280, 288, 234
N.W.2d 69 (1975) (defining a “new factor” as “a fact or set of facts highly relevant to the
imposition of sentence” that was unknown to the circuit or unknowingly overlooked at sentencing
(emphasis added)). Rather, the record reflects that the circuit court remained skeptical of Rios’s
purported drug addiction but nevertheless imposed drug treatment conditions primarily based on
Rios’s request for treatment.

18
No. 2020AP2132-CR

III. CONCLUSION

¶32 Rios pled no contest to three misdemeanors related to his
February 2019 conduct involving a Dick’s Sporting Goods trailer container. In
imposing sentence, the circuit court did not erroneously exercise its sentencing
discretion because it sufficiently addressed the three primary factors required by
McCleary and considered Rios’s admission that he has a drug addiction in
fashioning a sentence. Rios has failed to establish the existence of a new factor
warranting sentence modification, as his argument that the disruption to drug
treatment programming within the prison system constitutes a new factor was not
sufficiently raised before the circuit court.

By the Court.—Judgment and order affirmed.

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

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