State v. John Doe

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.
January 24, 2025
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. 2023AP1846-CR Cir. Ct. No. 2014CF579

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN DOE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Rock County:
JOHN M. WOOD, Judge. Affirmed.

Before Blanchard, Nashold, and Taylor, 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. 2023AP1846-CR

¶1 PER CURIAM. John Doe1 was convicted of multiple crimes
related to his possession and sales of heroin and marijuana at various times in
2013 and 2014. After Doe was sentenced and while he was an inmate in a
correctional facility, he provided assistance to corrections officials and law
enforcement in two matters. Based on that assistance, Doe moved the circuit court
to use its common-law authority to modify his sentences. The court denied the
motion and he now appeals.

¶2 Doe argues that the circuit court erred in deciding that he failed to
show by clear and convincing evidence that the assistance constitutes a new factor
that could merit modification of his sentences. Doe also argues that the court
erroneously exercised its discretion in deciding that, assuming that this assistance
constitutes a new factor, modification is not justified. We assume without
deciding that Doe is correct that he identified a new factor. We affirm on the
ground that Doe fails to show that the court erroneously exercised its discretion in
deciding that modification of the sentences is not justified.2

1
We follow the parties in shielding the appellant’s identity in this opinion because this
appeal references his cooperation with prison authorities and law enforcement in connection with
investigations of alleged wrongdoing in a prison facility.
2
Doe’s opening appellate brief does not comply with WIS. STAT. RULE 809.19(8)(bm)
(2021-22), which addresses the pagination of appellate briefs now that they are electronically
filed in PDF format and electronically stamped with page numbers when they are accepted for
efiling. See RULE 809.19(8)(bm) (when paginating briefs, parties should use “Arabic numerals
with sequential numbering starting at ‘1’ on the cover”). The pagination requirements ensure that
the numbers on each page of a brief “will match ... the page header applied by the eFiling system,
avoiding the confusion of having two different page numbers” on each page of a brief. Supreme
Court Note, 2021, WIS. STAT. RULE 809.19. All references to the Wisconsin Statutes are to the
2021-22 version.

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No. 2023AP1846-CR

BACKGROUND

¶3 In 2014, a jury found Doe guilty of 17 criminal violations, including
the manufacture or delivery of heroin, maintaining a drug trafficking place, and
felon in possession of a firearm. Taking into account a later adjustment by the
sentencing court regarding extended supervision time, the court imposed nine
years of initial confinement on Doe’s conviction for possession with intent to
deliver more than 10 grams but less than 50 grams of heroin, followed by five
years of extended supervision to be served consecutively to other concurrent
sentences for Doe’s other convictions.3 Cumulatively, Doe is serving a total of 15
years of initial confinement, followed by 10 years of extended supervision. The
sentencing court found that Doe is not eligible for potential early release under the
Challenge Incarceration Program or the Earned Release Program. We provide
additional detail regarding the sentencing below.

¶4 Omitting reference to postconviction events that are not pertinent to
this appeal, in May 2023 Doe filed the postconviction motion at issue in this
appeal, a motion for modification of his sentences based on a new factor.
Attached were three exhibits: an affidavit by a retired lieutenant correctional
officer and two sets of reports from a local sheriff’s office. Based on these
submissions, Doe argued that he had been “the first inmate to come forward” to
authorities in two separate prison-based criminal investigations and that in those
matters he had been “cooperative with law enforcement despite the fact that such
cooperation puts inmates at significant risk in the [prison] facility.”

3
The Hon. Richard T. Werner (“the sentencing court”) sentenced Doe. The Hon.
John M. Wood (“the postconviction court”) issued the order that Doe challenges in this appeal.

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No. 2023AP1846-CR

¶5 One matter involved what Doe characterized as an investigation into
an “inappropriate and illegal sexual relationship” between a correctional officer
and a prison inmate, resulting in the termination of the officer’s employment and
the referral of criminal charges to the local district attorney. The other matter
involved Doe “report[ing] known drug activity in the [prison] facility” after Doe
learned that another inmate “planned with the assistance of a correctional officer
to bring a large quantity of drugs and other contraband into the prison, resulting in
that inmate’s transfer to maximum security, the firing of the correctional officer
involved, and referral for charges.”

¶6 After considering briefing by the parties and oral arguments, the
postconviction court denied the motion. The court concluded that Doe “has not
met his burden of establishing a new factor.” The court also ruled that, even if
Doe had made that showing, “this set of facts does not justify sentence
modification” because that “would constitute a significant attack on the very
purpose of” the sentences that the sentencing court imposed. We summarize
additional statements by the postconviction court below.

DISCUSSION

¶7 Wisconsin circuit courts have inherent authority under the common
law to modify a criminal sentence when the defendant shows that a “new factor”
calls for modification of one or more sentences. State v. Harbor, 2011 WI 28,
¶35, 333 Wis. 2d 53, 797 N.W.2d 828. “The defendant has the burden to
demonstrate by clear and convincing evidence the existence of a new factor.” Id.,
¶36. A new factor is “‘a fact or set of facts highly relevant to the imposition of
sentence’” that was not known to the sentencing court, either because it was not in
existence at the time of sentencing or because it was unknowingly overlooked by

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No. 2023AP1846-CR

both parties. Id., ¶40 (quoted source omitted). Determining whether there is a
new factor presents an issue of law. Id., ¶36. If the defendant shows a new factor,
the circuit court, in the exercise of its discretion, determines whether sentence
modification is justified. Id., ¶37.

¶8 For example, in State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912
(1998), the defendant argued that sentence modification was justified based on the
alleged new factor that inaccurate information contained in the presentence report
had caused a miscalculation in a recommended sentencing guideline that was
presented to the circuit court. Id. at 423-24 (recalculation of the guidelines based
on the accurate number of the defendant’s prior convictions changed the suggested
sentence for two second-degree recklessly endangering safety convictions from a
term of imprisonment to probation). When presented with this issue in a
postconviction motion, the circuit court “stated that based on what it found to be
aggravating circumstances in this case it did not rely on the guidelines when it
initially sentenced the defendant.” Id. at 424-25. Our supreme court provided
little discussion on this issue, other than to note that the sentencing court was not
required to impose a sentence recommended by the sentencing guidelines. Id.
The supreme court determined that the “decision to impose a sentence outside
those guidelines under the circumstances of this case” was “within the sound
discretion of the sentencing court.” Id. Under the circumstances, it was not an
erroneous exercise of discretion to deny the requested sentence modification. Id.
at 426.

¶9 Pertinent here, because the defendant must make both the existence-
of-the-new-factor and the justification-for-modification showings, “if the court
determines that in the exercise of its discretion, the alleged new factor would not
justify sentence modification, the court need not determine whether the facts

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No. 2023AP1846-CR

asserted by the defendant constitute a new factor as a matter of law.” Harbor, 333
Wis. 2d 53, ¶38. The logic of this rule is obvious. If it is clear that no
modification is justified under the circumstances alleged by the defendant, it does
not matter if there is a new factor.

¶10 Turning to our review of the postconviction court’s ruling on the
justification-for-modification determination, if we determine that the court did in
fact exercise discretion (and here Doe does not dispute that the postconviction
court exercised its discretion on this issue), we reverse only if the court “‘applied
the wrong legal standard or did not ground its decision on a logical interpretation
of the facts.’” See State v. Wiskerchen, 2019 WI 1, ¶18, 385 Wis. 2d 120, 921
N.W.2d 730 (quoted source omitted). Further, “‘[w]e look for reasons to sustain a
[circuit] court’s discretionary decision.’” See id. (quoted source omitted).4

¶11 Bearing those legal standards in mind, we now provide further
background regarding pertinent comments of the sentencing court and the
postconviction court. Then we explain why we conclude that Doe fails to
establish that the postconviction court, when it exercised its discretion to
determine that sentence modification is not justified, applied a wrong legal
standard or failed to rule based on a logical interpretation of the facts.

¶12 The overall theme of the sentencing court’s remarks was that Doe
poses “a danger to the community,” based on his significant criminal history,

4
Doe suggests a misunderstanding of the legal standards when he states in his briefing
that he “moves this court for a modification of his sentence.” The justification-for-modification
determination is a discretionary one made by a circuit court, not by this court. If a circuit court
fails to exercise its discretion, a remand back to the circuit court would be appropriate, but Doe
does not argue that the postconviction court here failed to exercise its discretion.

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No. 2023AP1846-CR

including as a drug dealer, and on his conviction for possessing as a felon the
firearm that was found in a search executed at his residence. “I need to incarcerate
you to protect the public. I do need to impose a punitive sanction. And I need to
impose a sentence that does not unduly depreciate the seriousness of these
offenses.” The court said it hoped that the sentences it imposed would “have some
specific deterrent effect on” Doe.

¶13 The sentencing court noted that Doe, who was 29 at the time of
sentencing, “started early in the drug trade” and that as of the time of the crimes in
this case was “engaged heavily in the drug trade.” When Doe was 16 or 17, he
was charged with possession with intent to deliver marijuana, waived into adult
criminal court, convicted, and placed on probation. Then, instead of staying
crime-free while on probation, that status was revoked when he engaged in two
separate armed robberies while concealing his identity. This resulted in a term of
imprisonment that included a period of extended supervision that commenced in
November 2012, when Doe was 27. The court noted that Doe ultimately
“successfully complete[d]” his period of extended supervision, but that he served
“approximately six separate periods of” reincarceration based on “allegations of
assaultive and threatening behavior.”

¶14 The sentencing court noted that within just 10 months after Doe was
placed on extended supervision for the armed robberies, he engaged in the first
charged drug delivery in this case, and the court expressed doubt that this was his
first illegal drug activity after being placed on extended supervision. Further, the
court characterized Doe as having been convicted in this case of engaging in an
“ongoing enterprise” in 2013 and 2014 of dealing both heroin and marijuana—
despite Doe’s false representation to the jury at trial (while representing himself
with standby counsel) that he dealt only marijuana. Along the same lines, the

7
No. 2023AP1846-CR

sentencing court gave Doe credit for his “intellectual ability,” but expressed the
view that, by running a “drug enterprise,” Doe was “engaged in being an
entrepreneur and dealing drugs and that’s how you made your living rather than
try to find an honest job.” If it were not for the search executed by police at his
residence, Doe “would have continued an ongoing enterprise.”

¶15 The sentencing court expanded on its views of the harms created by
this form of entrepreneurship by noting that Doe had commented to the author of
the presentence investigation report that everyone in his Beloit neighborhood was
a heroin addict and that people in Beloit have to carry weapons to protect
themselves. “Well, quite frankly, that’s the situation that you helped to create ...
by your dealing heroin …. So you are part and parcel of” these grave problems in
Beloit.

¶16 The sentencing court noted that a “risk assessment” placed Doe at “a
high violent recidivism risk and a high general recidivism risk.” “In my
estimation you are a danger to the community.”

¶17 The sentencing court acknowledged that none of the counts of
conviction in this case were “violent offenses wherein you went out and you
battered someone or did anything of that nature.” At the same time, the court
noted, heroin addiction “clearly is a plague on our society,” both locally in Rock
County and elsewhere. The court further noted that the “ripple effect” from the
drug trade creates “danger in the neighborhood, [the] carrying [of] weapons.”

¶18 The postconviction court ruled in pertinent part that, even if Doe
could show a new factor, “there’s no justification for a sentence modification,”
because modification would “constitute a significant attack on the very purpose
of” the sentence. The court characterized one significant aspect of the sentencing

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No. 2023AP1846-CR

court’s rationale in fashioning the sentence as having been that Doe “contribut[ed]
to the destruction of families, neighborhoods, and communities” in “a continued
and ongoing enterprise.” Lesser sentences, the court reasoned, would “unduly
depreciate the seriousness of the underlying conduct[,] which was … potentially
fatal to a lot of members of our community.” The postconviction court also
identified the “very purpose” of the sentences as involving the closely related
concern over protecting the community from the types of harms that would result
from Doe continuing to deal heroin if not confined in prison, as he was likely to
do.

¶19 When summarized in terms of Wisconsin case law governing
sentencing, the postconviction court in effect interpreted the sentencing court as
having placed significant weight on two sentencing objectives. See State v.
Gallion, 2004 WI 42, ¶41, 270 Wis. 2d 535, 678 N.W.2d 197 (explaining that
sentencing courts “are to identify the general objectives of greatest importance,”
which “may vary from case to case”). Under this interpretation, the sentencing
court essentially prioritized the “punishment of the defendant” and the “protection
of the community,” which, at least under the circumstances here, were closely
related and both pointed toward a relatively longer cumulative prison sentence.
See id., ¶40; Harbor, 333 Wis. 2d 53, ¶49.

¶20 We assume without deciding that Doe is correct that, cumulatively,
his substantial assistance to corrections officers and to law enforcement
constituted a new factor. We resolve this appeal based on our conclusion that Doe
fails to show that the postconviction court erroneously exercised its discretion in
ruling that Doe did not show a justification for modification of the sentences. We
discern no error of law by the postconviction court on this issue, and the court

9
No. 2023AP1846-CR

provided a rationale based on one reasonable interpretation of the sentencing
transcript.

¶21 Doe makes only limited arguments, which are not well developed,
that the sentencing court erroneously exercised its discretion in declining to
modify Doe’s sentences.

¶22 Doe makes unclear and unsupported assertions related to the
separate existence-of-the-new-factor issue. He appears to argue that aspects of the
court’s reasoning as to whether sentence modifications are justified are in tension
with the assumption that Doe established that the assistance he provided
constituted a new factor. The postconviction court addressed the existence-of-the-
new-factor issue at greater length, but the court’s concise comments on the
justification-for-modification issue may be reasonably construed as standalone
comments. It is true that at least some of the postconviction court’s considerations
regarding the existence of a new factor bear on its reasoning on the justification-
for-modification issue. Yet Doe fails to establish that any aspect of the
postconviction court’s reasoning on the existence-of-the-new-factor issue was
irreconcilable with its conclusion on the justification-for-modification issue, or
more generally that the court was not free to weigh many of the same
considerations in addressing each of the two requirements: the existence of a new
factor and the justification for modification.

¶23 Doe argues that the postconviction court improperly “rubber
stamped the original sentence,” by “impermissibly downplay[ing] the good
Mr. Doe did for his community by participating in these investigations.” In our
analysis, we assume without deciding in his favor that Doe’s assistance was
substantial and performed at considerable potential risk to his own safety,

10
No. 2023AP1846-CR

consistent with the arguments that Doe made in the circuit court. But under the
postconviction court’s interpretation of the objectives expressed by the sentencing
court, the “good” that Doe might have accomplished through his assistance could
reasonably be viewed as having no relevance to the sentencing court’s emphasis
on punishing the defendant and only limited relevance at best to protecting the
community in the future.

¶24 Doe zeros in on two statements made by the postconviction court in
explaining its justification-for-modification ruling. Although his discussion is
unclear, he may mean to suggest that the court, in making these comments,
erroneously exercised its discretion by basing its denial of the modification on an
incorrect understanding of the existence-of-the-new-factor issue.

¶25 In the first statement that Doe highlights, the postconviction court
said that the assistance which Doe provided was not “significant enough under the
totality of the circumstances, which would include consideration of the fruits of
the defendant’s assistance being highly relevant to the imposition of the sentence
here.” We interpret this to convey the idea that modification is not justified in part
because the nature of the assistance that Doe provided does not shed light on the
core objectives expressed by the sentencing court in imposing the sentences that it
fashioned, as interpreted by the postconviction court. Doe fails to establish that
this constituted an erroneous exercise of discretion.

¶26 In the second statement that Doe highlights, the postconviction court
took the position that Doe “appears to have only reported the information in an
attempt to reduce his sentence, not because it was the right thing to do as far [as]
I’m concerned.” But the court did not purport to rest its decision on this doubt
about Doe’s motives. Further, Doe fails to cite legal authority supporting the

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No. 2023AP1846-CR

proposition that, in exercising its discretion on the justification-for-modification
issue, a circuit court may not take into consideration its perceptions of the
motivations of the defendant in taking the actions that the defendant submits call
for sentence modification, as those motivations may properly bear on the
justification for a modification.

¶27 Doe may intend to argue that State v. Doe, 2005 WI App 68, 280
Wis. 2d 731, 697 N.W.2d 101, places out of bounds, when analyzing whether a
new factor justifies sentence modification, a defendant’s motivations in providing
substantial assistance. If he intends this argument, he is incorrect. Doe clarifies
that a “defendant’s substantial and important assistance to law enforcement after
sentencing may constitute a new factor that the [circuit] court can take into
consideration when deciding whether modification of a sentence is warranted.”
Id., ¶1 (emphasis added). In other words, a defendant’s substantial assistance to
law enforcement may be considered as a basis for sentence modification. But Doe
does not dictate that all such assistance merits sentence modification, as Doe
suggests. And, returning to the core point, Doe fails to cite any passage in Doe, or
any other legal authority, that prohibits a circuit court addressing the issue of
whether a requested sentence modification is justified from taking into
consideration its perception of the motivations of the defendant in providing
assistance to authorities.

¶28 Doe also suggests that the postconviction court failed to take into
account his alleged development of “prosocial attributes,” “tangible growth,” and
maturity while he has been in prison. The postconviction court at one point said
that, to the extent that Doe had made “rehabilitative efforts,” this could be
relevant, although at other times it seemed to take a contrary view. The court also
noted evidence of “some significant progress with regard to behavior and attempts

12
No. 2023AP1846-CR

to prepare [himself] for re-integration into society,” although the court noted the
absence of records about potential minor conduct violations. The court deemed
the progress that it did see as “highly commendable.” But on this topic, the court
reasonably construed one point of significant emphasis in the sentencing court’s
rationale as focusing on prison terms long enough to protect the community from
what the sentencing court viewed as the devastating ripple effects of Doe’s
persistent drug dealing. The postconviction court could reasonably view Doe’s
commendable efforts at trying to prepare himself for reintegration into society as
insufficient to address the sentencing court’s concern that, upon release from
prison, he would go back to heroin dealing, consistent with his long pattern of
illegal activity.

¶29 Doe makes the sweeping assertion that, under the logic applied by
the postconviction court here, “any inmate who provides postconviction assistance
[to] law enforcement has no outlet for a sentence modification.” This assertion
ignores both the substance of the sentencing court’s expressed rationale for its
sentences (the specific sentencing rationales in other cases will differ) and also
ignores our standard of review for the discretionary aspect of circuit court
decisions on the justification-for-modification issue (erroneous exercise of
discretion).

¶30 Summing up, the sentencing court made clear that, given what it
found to be Doe’s persistent history of criminality (drug dealing in particular), it
viewed Doe as a significant and ongoing threat to public safety for the length of
the prison terms that it set. The postconviction court supported its position that,
because the motion for modification failed to sufficiently address that core
sentencing objective, Doe did not demonstrate that a modification of his sentences
was warranted.

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No. 2023AP1846-CR

CONCLUSION

¶31 For these reasons, we affirm the order denying the motion to modify
the sentences.

By the Court.—Order affirmed.

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

14