State v. Ronald S. Schilling

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 10, 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. 2022AP404-CR Cir. Ct. No. 1975CF1

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RONALD S. SCHILLING,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, and Nashold, 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. 2022AP404-CR

¶1 PER CURIAM. Ronald Schilling, pro se, appeals the circuit court’s
order denying his motion for sentence modification. He argues that new factors
justify modification of his sentence. We conclude that he has not established the
existence of any new factor. Accordingly, we affirm.1

Background

¶2 In 1976, Schilling was convicted of first-degree murder as party to a
crime. He stabbed the victim multiple times in the course of an armed robbery
committed with two co-actors. He was twenty-four years old at the time of the
offense.

¶3 The circuit court sentenced Schilling to life imprisonment. Under
sentencing law then in effect, a term of life imprisonment carried the possibility of
parole. See WIS. STAT. § 57.06(1)(a) (1975-76).2

¶4 In June 2021, Schilling filed the motion for sentence modification at
issue here. He alleged that there were multiple new factors justifying modification
of his sentence, including new research on adolescent brain development and
factors relating to denial of parole. The circuit court concluded that Schilling had
not established the existence of any new factor.

1
Schilling filed his reply brief after the deadline, but the brief was nonetheless accepted
for filing, and we have considered the reply brief arguments.
2
Schilling was also convicted of armed robbery as party to a crime. On that charge, the
circuit court imposed a five-year prison sentence to run concurrent with Schilling’s life sentence
on the murder charge.

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No. 2022AP404-CR

Discussion

¶5 “A new-factor analysis is a two-step process: (1) is there a ‘new
factor,’ and, if so, (2) does the ‘new factor’ justify modification of the defendant’s
sentence?” State v. McDermott, 2012 WI App 14, ¶9, 339 Wis. 2d 316, 810
N.W.2d 237. The defendant has the burden to demonstrate the existence of a new
factor by clear and convincing evidence. Id. Whether the defendant has satisfied
that burden is a question of law we decide de novo. Id. If the defendant
establishes the existence of a new factor, the circuit court has discretion to decide
whether the new factor justifies modification of the defendant’s sentence. Id.

¶6 The definition of a new factor is set forth in case law. It 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.’” State v. Harbor, 2011 WI 28, ¶40, 333 Wis. 2d
53, 797 N.W.2d 828 (quoted source omitted).

¶7 Schilling contends that there are five new factors: (1) new research
on adolescent brain development; (2) changes to parole rules and policies;
(3) improper influence by the victim’s friends and family and corrections officers
on the parole process and his security classification; (4) his rehabilitation in
prison; and (5) the COVID-19 pandemic.

¶8 We address each of these alleged new factors in the discussion
sections that follow. Because we conclude that Schilling has not established the
existence of any new factor, there is no need to remand for the circuit court to
exercise its discretion under the second part of the two-part test for sentence
modification. See id., ¶38 (“[I]f a court determines that the facts do not constitute

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No. 2022AP404-CR

a new factor as a matter of law, ‘it need go no further in its analysis.’” (quoted
source omitted)).3

1. Research on Adolescent Brain Development

¶9 Schilling argues that new research on adolescent brain development
constitutes a new factor. His underlying reasoning is difficult to understand.
Construing his briefing liberally, we conclude that he argues that this research is
highly relevant to the imposition of his sentence both because: (1) the research
indicates that relatively young offenders have less impulse control and should
therefore be held less culpable for their actions, and (2) the research sheds new
light on how his difficult childhood or other adverse circumstances in his youth
influenced his mental health conditions.

¶10 We reject these arguments because Schilling does not persuade us
that the research, although new, is highly relevant to the imposition of his
sentence. On the contrary, Schilling makes a concession that supports a
conclusion that the research is not highly relevant in his case.

¶11 According to Schilling, under the sentencing law in effect at the
time, the circuit court’s only sentencing options were life imprisonment or
probation.4 And, he acknowledges that probation was not an appropriate option

3
Schilling argues that the circuit court erroneously exercised its discretion by failing to
address some of the new factors that he alleged in his motion for sentence modification.
Applying de novo review, we address each of the alleged new factors that Schilling raises in this
appeal.
4
The homicide statute under which Schilling was convicted, WIS. STAT. § 940.01(1)
(1975-76), states: “Whoever causes the death of another human being with intent to kill that
person or another shall be sentenced to life imprisonment.”

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No. 2022AP404-CR

for him at the time. He thus effectively concedes that the court had no realistic
sentencing alternative other than life imprisonment.

¶12 Given Schilling’s concession and the nature of his crime, it is not
plausible to suggest that the circuit court might have imposed a different sentence
if the court had known then what we know now about adolescent brain
development. The new research on adolescent brain development is therefore not
highly relevant to the imposition of Schilling’s sentence and not a new factor.

2. Changes to Parole Rules and Policies

¶13 Schilling argues that changes to parole rules and policies since the
time of his sentencing constitute a new factor. We reject this argument as
inconsistent with our supreme court’s decision in State v. Franklin, 148 Wis. 2d
1, 434 N.W.2d 609 (1989).

¶14 In Franklin, the supreme court held that “for a change in parole
policy to constitute a new factor, parole policy must have been a relevant factor in
the original sentencing.” Id. at 15. It further held that a change in parole policy
“is not a relevant factor unless the court expressly relies on parole eligibility.” Id.

¶15 Here, the transcript of Schilling’s sentencing hearing shows that the
circuit court made no reference to parole when imposing sentence. Therefore, any
change in parole rules or policies is not a new factor for Schilling.

3. Influence by Victim’s Friends and Family

¶16 Schilling alleges that the victim’s friends and family, some of whom
are involved in the correctional system, have engaged in improper efforts to

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No. 2022AP404-CR

influence the parole review process. He argues that these alleged improper efforts
to influence constitute a new factor.

¶17 We reject this argument because we conclude that, even if Schilling
proved these allegations, they would not be highly relevant to the imposition of his
sentence. His central contention appears to be that he has been unfairly and
improperly denied parole for more than 45 years. However, we are not persuaded
that the denial of parole, even if improper, can be a new factor for Schilling when
the circuit court did not reference parole at sentencing, let alone state any
expectation of when he might be paroled.

¶18 Schilling additionally alleges that correctional employees have
improperly influenced his security classification, and he argues that this is also a
new factor. We conclude that this alleged misconduct is not a new factor because
it bears no relationship to the basis for Schilling’s sentence and is therefore not
highly relevant to the imposition of his sentence.5

4. Rehabilitation

¶19 Schilling appears to argue that his rehabilitation in prison is a new
factor, although in his reply brief he concedes that rehabilitation is “not in and of

5
This is not to say that Schilling is without any means to obtain judicial review of any
alleged irregularities relating to the parole review process or his security classification. However,
judicial review would likely be by petition for a writ of certiorari, and he would need to satisfy
applicable procedural requirements, including any requirement relating to exhaustion of
administrative remedies. See State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 549-50, 185
N.W.2d 306 (1971) (holding that judicial review of a parole revocation decision is by writ of
certiorari); Richards v. Graham, 2011 WI App 100, ¶5, 336 Wis. 2d 175, 801 N.W.2d 821
(reviewing a parole commission decision by writ of certiorari); State ex rel. Richards v. Traut,
145 Wis. 2d 677, 678-81, 429 N.W.2d 81 (Ct. App. 1988) (reviewing the denial of an inmate’s
internal request for a change in security classification by writ of certiorari).

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No. 2022AP404-CR

itself” a new factor. We agree with this concession because it is well settled that
rehabilitation is generally not a new factor. See State v. Kluck, 210 Wis. 2d 1, 7,
563 N.W.2d 468 (1997) (“[C]ourts of this state have repeatedly held that
rehabilitation is not a ‘new factor’ for purposes of sentence modification.”).

5. COVID-19 Pandemic

¶20 Schilling argues that the COVID-19 pandemic is a new factor.
Although the pandemic was not in existence at the time of his sentence, Schilling
does not explain how the pandemic or its consequences are highly relevant to the
imposition of his sentence. We therefore conclude that the pandemic is not a new
factor here.

Conclusion

¶21 In sum, for the reasons stated above, we affirm the circuit court’s
order denying Schilling’s motion for sentence modification.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).6

6
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

7