State v. Tremaine J. Brown

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.
November 18, 2020
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. 2019AP1251-CR Cir. Ct. No. 2017CF380

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TREMAINE J. BROWN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Fond
du Lac County: GARY R. SHARPE, Judge. Affirmed.

Before Reilly, P.J., Gundrum and Davis, 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. 2019AP1251-CR

¶1 PER CURIAM. Tremaine J. Brown appeals from a judgment
convicting him of possession with intent to deliver less than or equal to one gram
of a controlled substance within 1000 feet of a park and from the order denying his
motion for postconviction relief by which he sought sentence modification. He
alleges that six new factors warrant sentence modification. We disagree and
affirm.

¶2 The State charged Brown with selling cocaine to the same
confidential informant (CI) on two occasions. Pursuant to a plea agreement,
Brown pled no contest to and was convicted of one count of cocaine delivery. He
was sentenced to two years’ initial confinement (IC) and three years’ extended
supervision (ES), consecutive to cases in other counties. Brown believes his
sentence should be modified to sixteen months’ IC and two years’ ES, concurrent.

¶3 The six “new” factors Brown claims justify modifying his sentence
are these: (1) additional details about the length of his incarceration at the time of
sentencing, (2) information about prior drug counseling, (3) his sentence in a
subsequent and unrelated Racine County case, (4) more details about the effect of
defense counsel’s recommended sentence, (5) his current mandatory release date,
and (6) information about his past drug use with the CI. Brown essentially claims
his offense here was less serious than the circuit court believed such that he did
not require a lengthy sentence for drug treatment.

¶4 In October 2018, Brown pled no contest to count one of the charges
in this case in exchange for count two being dismissed and read in. Brown’s
sentencing was muddied by the disposition of other cases in which he was charged
in Racine, Brown, and Outagamie counties. Among other offenses, the charges in

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those counties included drug and firearm possession and felony bail jumping.
Before those charges, he had a history of theft and cocaine possession.

¶5 In August 2017, Brown had been convicted of the Brown County
charges and was sentenced to eighteen months’ IC and two years’ ES. In
May 2018, he was convicted of the Outagamie County charges and was sentenced
to six months in jail, consecutive to existing sentences. In October 2018, Brown
pled no contest in this Fond du Lac County case. The State asked for two years’
IC and four years’ ES concurrent with his other sentences; Brown’s attorney
recommended two years’ IC and two years’ ES, concurrent.

¶6 The State informed the court of Brown’s other convictions and that
he had six months remaining on existing charges. Brown’s attorney also noted
that the Racine County case was still pending and that there apparently was a
prison recommendation of roughly the same amount of time being recommended
here. Brown himself informed the court that he was close to completing alcohol
or other drug abuse (AODA) classes at his current institution.

¶7 The court ordered two years’ IC and three years’ ES, consecutive to
any other case, with eligibility for the Challenge Incarceration and Substance
Abuse Programs (CIP, SAP). It explained that, while Brown’s offense was a
“single use circumstance,” the nature of it still was serious, due to the broader
effects of crack cocaine addiction and dealing. It noted the need to protect the
public, to punish Brown, and to address his rehabilitative needs. It echoed that
Brown had been involved in AODA treatment and explained that the length of the
sentence was, in part, designed to include ongoing treatment and counseling, even
post-prison.

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¶8 Subsequent to the sentence here, Brown was sentenced in the Racine
County case to two years’ IC and three years’ ES, consecutive to existing
sentences. He also was found eligible for the SAP in that case.

¶9 In May 2019, Brown moved for correction of judgment and sentence
modification in this case. He asserted that, due to the six allegedly new factors,
his sentence should be modified to sixteen months’ IC and two years’ ES,
concurrent to his other cases. At the hearing on the motion, Brown argued that the
new information concerning his friendship with the CI meant that the nature of his
offense was less serious and that the combined effect of the other information
meant that a two-year prison sentence was not necessary to ensure he received
substance abuse treatment.

¶10 The court denied Brown’s motion. It concluded that the information
relating to the Brown County sentence was not a new factor because it was aware
Brown had been in prison at the time of sentencing and that it was aware of
Brown’s AODA programming at sentencing. It impliedly concluded that Brown’s
later Racine County sentence also was not relevant to its sentencing decision in
this case.

¶11 Although the court did not expressly address whether the additional
information about the effect of defense counsel’s recommended sentence and
Brown’s current mandatory release date were new factors, it determined that none
of the information presented by Brown justified sentence modification. It
explained that the fact that even if Brown presumably was “clean” during the time
he was incarcerated, it was looking for him to be punished and to be in prison long
enough to fully participate in the SAP. The court stated that additional
information about Brown’s sentence in Racine County also would not have

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impacted its sentence, as it did not know the details of those charges and could not
“apply 20/20 hindsight” based on the decision of another judge because
“otherwise, there never would be finality to sentences.”

¶12 The court concluded that the only new factor alleged by Brown was
the fact that Brown and the CI knew each other and had used and shared cocaine
in the past. The court found, however, that, even so, there was no indication of co-
use by Brown and the CI in the charged offenses here, such that this remained a
“commercial enterprise.”

¶13 Finally, the court reiterated that whatever programming was
available to Brown in the past, it intended his sentence to be long enough for him
to qualify for and participate in the SAP. Addressing the additional detail
concerning defense counsel’s recommended sentence, the court noted that the net
effect—eight extra months—was “relatively minimal.” The court concluded that
the sentence it initially imposed “is not at all onerous or out of line or
inappropriate given the two financial transaction deliveries that occurred.”

¶14 “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. A court may base a sentence modification upon the
defendant’s showing of a “new factor.” State v. Hegwood, 113 Wis. 2d 544, 546,
335 N.W.2d 399 (1983). 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.” State
v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of
facts constitutes a new factor is a question of law which may be decided without

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deference to the lower court's determinations. Hegwood, 113 Wis. 2d at 547.
Whether a new factor exists is a question of law reviewed de novo; whether the
presence of one or more new factors justifies sentence modification is reviewed
for an erroneous exercise of discretion. Franklin, 148 Wis. 2d at 8.

¶15 None of the six facts Brown identifies are new factors. We address
them one by one. The first is whether mandatory release dates and eligibility for
the ERP and the SAP in Racine, Brown, and Fond du Lac Counties, were
unknown to the Fond du Lac County sentencing court. Having been in custody for
at least eighteen months at the time of his Fond du Lac sentencing, Brown claims
this fact is highly relevant because it shows he was sober for those eighteen
months and thus was less in need of drug treatment than the court thought. We
disagree.

¶16 At the time of sentencing, the court was aware that Brown had six
months left to serve on a prior felony offense. A term of imprisonment must be
for at least twelve months. See WIS. STAT. §§ 939.60 and 973.02. It is reasonable
to assume that a person in a state prison is sober during the period of incarceration.
See WIS. ADMIN. CODE § DOC 303.60 (prohibiting use of intoxicants in prison
except for prescription medication); see also State v. Krueger, 119 Wis. 2d 327,
334, 351 N.W.2d 738 (Ct. App. 1984). The court thus was aware that Brown was
serving at least twelve months’ confinement and presumably would have been
sober during that period. Being incarcerated for eighteen, versus twelve months,
only expands on information the court already knew. It is not a new factor.

¶17 The second “new” factor is that Brown’s counsel allegedly
inaccurately stated his substance abuse treatment history. This is not a new factor.
Brown himself advised the court of his participation in AODA classes at his

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current institution and was close to completing it, thus implying that he had a
lesser need for substance-abuse treatment. When pronouncing Brown’s sentence,
the court expressly recognized that Brown had been involved in AA or NA at the
prison or in AODA assessment. Thus, this, too, is not a new factor.

¶18 The third factor Brown raises is the difference between the
recommended sentence in this case and his actual sentence in the Racine County
matter, a subsequent, unrelated case. He asserts the “discrepancy” is highly
relevant because he could satisfy the treatment component of his sentence in the
present case while serving his time on the Racine County case.

¶19 This argument runs awry for several reasons. First, the court was
made aware that the two-year prison recommendation in the Racine County case
was roughly the same amount of time that was recommended here. The court thus
was aware that Brown faced a potential two years’ IC in Racine County when he
was sentenced here.

¶20 Second, as noted, later developments in another criminal matter do
not constitute a new factor unless “directly linked to the purpose of the sentence”
and the new development means that the circuit court sentenced the defendant
“based on inaccurate information.” State v. Norton, 2001 WI App 245, ¶¶14–15,
248 Wis. 2d 162, 635 N.W.2d 656. The facts of Norton provide a contrast to
Brown’s case. Norton committed theft while on probation for another theft
offense. Id. ¶¶2–3. When sentenced for the new offense, the court expressly
fashioned his sentence with the understanding that Norton’s probation would not
be revoked in the first theft case. Id. ¶11. At the urging of Norton’s probation
agent, however, he later agreed to revocation of his probation. Id. ¶12. On
appeal, this court held that Norton’s revocation was a new factor because “where a

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defendant commits a new crime while on probation, whether or not the defendant
will be exposed to the sentence underlying the probation is significant.” Id. ¶14.
We explained that the circuit court expressly sentenced Norton with the
understanding that his probation would not be revoked, such that the court’s
sentence was based on incorrect information. Id. ¶¶14–15.

¶21 Here, by contrast, the circuit court’s sentence did not at all rely on
the predicted outcome in Brown’s Racine County case. While the circuit court
received some information about the proposed sentence in the Racine County case,
nothing in the sentencing transcript suggests that the court relied on that
recommendation when fashioning Brown’s sentence here. Also, Brown’s Racine
County weapons charges had no relationship to these Fond du Lac County drug
charges. The ultimate sentence Brown received in Racine County cannot, as a
matter of law, constitute a new factor.

¶22 Third, Brown’s argument that his later sentence in Racine County is
a new factor completely undermines the strong policy supporting finality of
judgments. See Harbor, 333 Wis. 2d 53, ¶51. As the circuit court recognized
here, if a defendant’s sentence in a subsequent case can constitute a new factor
justifying sentence modification in a previous case, there would be no finality to
criminal judgments involving repeat offenders. Brown also ignores the fact that
the Racine County Circuit Court likely based its sentence, in part, on the outcome
in this case. If Brown’s sentence in Racine County can be used to justify a
sentence modification in this case, his Racine County sentence would be based on
inaccurate information.

¶23 Fourth, Brown’s argument that his rehabilitative needs can be
addressed through his sentence in the Racine County case ignores that his Racine

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County sentence was made consecutive to all other sentences. Had the Racine
County court agreed with Brown’s “diminished needs” argument, it would have
made its sentence concurrent to Brown’s Fond du Lac sentence.

¶24 Fifth, contrary to what Brown claims, the fact that the Racine
County court found him eligible for the SAP is not highly relevant to his Fond du
Lac County sentence. Whether Brown participates in the SAP in the Racine
County weapons offense case is irrelevant to his Fond du Lac County sentence.
“[F]avorable consideration of the appellant’s progress in the rehabilitation system
lies solely with the department of health and social services. It is not a ‘new
factor’ justifying a modification of sentence.” Krueger, 119 Wis. 2d at 335
(citation omitted). Further, it is entirely speculative whether Brown will complete
the SAP in his Racine County case. Therefore, the third factor also is not new.

¶25 As to the fourth “new” factor, more precise information about the
effect of the defense’s recommended sentence also is not new. Brown seems to be
arguing that the initial sentence recommended by trial counsel would have been
sufficient to allow his rehabilitative needs to be addressed. We again disagree.

¶26 This information already was known to the court; Brown thus simply
is expanding on arguments trial counsel made at sentencing. See Harbor, 333
Wis. 2d 53, ¶¶27, 57. Further, rehabilitation was but one aim of the court’s
sentence in this case. It also was concerned about the need to protect the public
and to impose consequences. That his rehabilitation needs might be met with trial
counsel’s original recommended sentence does not diminish the value of the other
goals.

¶27 Neither is Brown’s current 2023 mandatory release date a new
factor. If he means that he has more than sufficient time to attend to his

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rehabilitative needs, we agree with the State that this argument simply rehashes his
argument concerning the effect of his Racine County sentence. Judgments must
have finality.

¶28 The sixth “new” factor, Brown’s prior friendship and drug use with
the CI, likewise is not highly relevant, nor does it mean the nature of his offenses
was less serious than the circuit court originally believed. Brown presents no
evidence that he and the CI shared drugs on these occasions. We agree that the
charged offenses were purely commercial transactions. Like the other five issues
he raises, this also is not a new factor.

¶29 Lastly, contrary to Brown’s suggestion, the issue is not solely
whether sentence modification is “justified,” but is whether if a new factor is
present, does the new factor justify modifying the sentence. Harbor, 333 Wis. 2d
53, ¶37. “In making that determination, the circuit court exercises its discretion.”
Id. We have concluded that no new factors are present. We therefore uphold the
circuit court’s discretionary decision because it did not commit an error of law and
explained its rationale for concluding that the facts Brown presented did not justify
modification of his sentence. See id., ¶63.

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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