State v. Kenneth Darrell Lyons

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 5, 2024
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. 2023AP173-CR Cir. Ct. No. 2020CF945

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KENNETH DARRELL LYONS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MICHAEL J. HANRAHAN, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Colón 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. 2023AP173-CR

¶1 PER CURIAM. Kenneth Darrell Lyons appeals from a judgment of
conviction entered following guilty pleas to one count of possession of heroin with
intent to deliver and one count of possession of cocaine with intent to deliver. He
also appeals from an order of the circuit court denying his postconviction motion
seeking sentence modification based on a new factor. For the reasons set forth
below, we affirm.

BACKGROUND

¶2 On February 28, 2020, the State charged Lyons with one count of
possession of heroin with intent to deliver and one count of possession of cocaine
with intent to deliver. The charges resulted from a narcotics investigation that
involved multiple controlled buys of heroin and cocaine. At the time of his arrest,
Lyons had cocaine, heroin, a digital scale, packaging material, and cash with him in
his vehicle.

¶3 Lyons pled guilty to both counts, and the circuit court sentenced him
to a total of five years of imprisonment, composed of two years of initial
confinement and three years of extended supervision. At the time of sentencing, the
circuit court found Lyons eligible for the Challenge Incarceration Program (CIP)
after one year, but it found that Lyons was not eligible for the Substance Abuse
Program (SAP) because the circuit court found that it had “no indication” that Lyons
had “a substance abuse problem that contributed to [his] activity.”

¶4 Lyons subsequently filed a motion for postconviction relief in which
he argued that he was entitled to sentence modification based on a new factor.
Lyons specifically requested that he be found eligible for SAP based on an inmate
classification report prepared by the Department of Corrections (DOC) in which the
DOC rated Lyons as a high priority in the substance use disorder category.

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No. 2023AP173-CR

¶5 The circuit court denied Lyons’ motion because any alleged drug
problem “was known to him at sentencing, yet he did not claim to have a drug
problem” and the circuit court was “not persuaded that the inmate classification
report [was] clear and convincing evidence of a substance abuse disorder” given
that the report also indicated that Lyons “self-reported that he does not drink alcohol
and that he stopped smoking marijuana in 2019.”

¶6 Lyons now appeals.

DISCUSSION

¶7 On appeal, Lyons argues that the DOC’s report reflecting that Lyons
was a high priority in the substance use disorder category is a new factor that
justifies sentence modification. We disagree, and we conclude that the DOC’s
classification does not present a new factor that justifies sentence modification.

¶8 A defendant may seek a modification of his or her sentence “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. To do so, the defendant first “has the burden to
demonstrate by clear and convincing evidence the existence of a new factor.” Id.,
¶36. Second, “if a new factor is present, the circuit court determines whether that
new factor justifies modification of the sentence.” Id., ¶37. “Thus, to prevail, the
defendant must demonstrate both the existence of a new factor and that the new
factor justifies modification of the sentence.” Id., ¶38.

¶9 The definition of a new factor is well-settled as “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

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No. 2023AP173-CR

… it was unknowingly overlooked by all of the parties.” Rosado v. State, 70
Wis. 2d 280, 288, 234 N.W.2d 69 (1975).

¶10 “Whether a fact or set of facts presented by the defendant constitutes
a ‘new fact’ is a question of law” that we review independently. Harbor, 333
Wis. 2d 53, ¶33. However, we review “[t]he determination of whether that new
factor justifies sentence modification” for an erroneous exercise of discretion. Id.

¶11 In this case, we conclude that Lyons has failed to demonstrate that the
DOC’s report is a new factor that justifies sentence modification. To put it simply,
any substance abuse issues would have been known to Lyons at the time of
sentencing and, therefore, cannot now be considered a new factor. See State v.
Crockett, 2001 WI App 235, ¶14, 248 Wis. 2d 120, 635 N.W.2d 673 (rejecting a
defendant’s argument for sentence modification for a new factor because the
defendant did not claim that he was also unaware of the claimed new factor at the
time of sentencing).

¶12 Lyons argues that it is unrealistic to presume that a person is capable
of self-diagnosing a substance abuse disorder and further capable of recognizing
that a substance abuse disorder could be a mitigating factor at sentencing. However,
an ability or lack thereof to diagnose one’s self with a substance abuse disorder and
recognize any mitigating properties in such a disorder does not negate the fact that
a defendant should be knowledgeable of the basic fact that he or she has engaged in
drug use and to what extent the defendant has done so. In other words, Lyons should
have been aware at the time of his sentencing that he had indeed engaged in drug
use and yet he never claimed to have engaged in such drug use at the time of
sentencing. Instead, by all indications, Lyons sold drugs to “make easy money” and

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No. 2023AP173-CR

he himself was not engaged in using drugs. Lyons did not correct this
characterization at the time of sentencing.

¶13 We consider whether or not Lyons self-diagnosed his drug use as a
substance abuse disorder irrelevant to our analysis of what Lyons knew at the time
of his sentencing about whether he had in fact used drugs and to what extent. Rather,
we consider that he would have been aware of his own drug use at the time of
sentencing, and therefore, we conclude that he has failed to demonstrate the
existence of a new factor.

¶14 Furthermore, as the State observes, the DOC report also states that
Lyons self-reported that “he does not drink alcohol and stopped smoking marijuana
in 2019.” The DOC report also did not give Lyons an AODA score. Consequently,
we also observe that the DOC report, by its own terms, fails to demonstrate by clear
and convincing evidence that Lyons indeed suffered from a substance abuse
disorder that justifies sentence modification.

¶15 Accordingly, we affirm the circuit court’s order denying Lyon’s
postconviction motion for sentence modification and affirm his judgment of
conviction.

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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