State v. Mario T. Tucker

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.
September 18, 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. 2024AP887-CR Cir. Ct. No. 2020CF1141

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARIO T. TUCKER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: KARL HANSON, Judge. Affirmed.

Before Graham, P.J., Blanchard, 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).

¶1 PER CURIAM. Mario Tucker appeals a judgment and an order of
the circuit court denying his postconviction motion seeking a modification of his
No. 2024AP887-CR

sentence. Tucker argues that evidence given by an expert retained by the defense
after sentencing, concluding that Tucker is “borderline cognitively impaired” and
has “traits of paranoid personality disorder,” constitutes a new factor that warrants
sentence modification. The circuit court denied Tucker’s sentence motion based
on the court’s conclusion that the expert evidence did not constitute a new factor,
and, alternatively, even if the evidence constituted a new factor, it did not warrant
modifying the sentence. Tucker requests that this court reverse the order denying
his motion and remand for the circuit court to exercise its discretion to modify the
sentence based on the purported new factor. We assume without deciding that the
expert evidence identified by Tucker constitutes a new factor. With that
assumption, we conclude that Tucker fails to show that the circuit court
erroneously exercised its discretion in declining to modify Tucker’s sentence.

BACKGROUND

¶2 In December 2020, Tucker was charged with a single count of first-
degree intentional homicide contrary to WIS. STAT. § 940.01(1)(a), based on a
fatal shooting.1 At trial, the defense argued in pertinent part that Tucker acted in
complete (perfect) self-defense and should be acquitted on that basis.2 The jury
1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
Our supreme court has explained:

The [Wisconsin] statutes define two types of self-
defense: perfect and imperfect. Imperfect self-defense is an
affirmative defense to first-degree intentional homicide. WIS.
STAT. § 940.01(2)(b)[]. It is aptly named because, when
successful, it reduces a charge of first-degree intentional
homicide to second-degree intentional homicide and therefore
does not function as a complete (perfect) defense to a homicide
charge. Id.

State v. Johnson, 2021 WI 61, ¶19, 397 Wis. 2d 633, 961 N.W.2d 18 (footnote omitted).
(continued)

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No. 2024AP887-CR

convicted Tucker of second-degree intentional homicide. See WIS. STAT.
§ 940.01(2).

¶3 The circuit court ordered the state department of corrections to
prepare a presentence investigation report. The report recommended a sentence of
16 years of initial confinement followed by 7 years of extended supervision. The
State recommended that the court impose 30 years of initial confinement and 20
years of extended supervision, while the defense argued the court should either
follow the PSI recommendation or impose a lesser sentence. The court imposed
30 years of initial confinement and 20 years of extended supervision.

¶4 Represented by new counsel after sentencing, Tucker retained a
psychologist, Dr. Brian Stress, to conduct a neuropsychological examination of
Tucker and to produce a report that was submitted to the circuit court as part of a
postconviction motion. The report included the following assertions. Tests
conducted by Dr. Stress indicated that Tucker had an IQ of 82, which meant that
his cognitive ability fell within the “borderline impaired” range. Testing also
showed that aspects of Tucker’s executive functioning fell within the borderline
impaired range. Tucker exhibited characteristics of “paranoid personality
disorder,” along with “additional personality disorder symptoms.” These traits
made it “more likely than not” that Tucker was “at significant risk of
misinterpreting others’ behaviors as a threat towards him, which could result in
unjustified defensive aggressive behaviors.”

On a related note, in closing argument, defense counsel here also appeared to invite the
jury to consider a verdict of first-degree or second-degree reckless homicide, contrary to WIS.
STAT. §§ 940.02(1) and 940.06, respectively, in the event that the jury did not accept the
complete self-defense theory.

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No. 2024AP887-CR

¶5 In the postconviction motion, Tucker requested that the circuit court
modify his sentence, arguing that Dr. Stress’ report constituted a “new factor” that
warranted modification. See State v. Schueller, 2024 WI App 40, ¶26, 413
Wis. 2d 59, 10 N.W.3d 423 (circuit courts have inherent authority to modify
criminal sentences when a defendant has demonstrated the existence of a “new
factor”).

¶6 The circuit court held an evidentiary hearing at which Dr. Stress and
Tucker’s trial counsel testified. Dr. Stress testified that, based on the results of his
evaluation, Tucker’s executive function abilities were “significantly lower” than
those of an average person. One consequence of this was that Tucker’s ability to
process information was “limited compared to somebody [in the] low average to
average range” and that Tucker might make decisions that do not “take into
[account] numerous nuances that may be generally utilized [by] somebody who
has a higher cognitive capacity.” Dr. Stress testified, consistent with his report,
that Tucker’s cognitive ability and personality traits “more likely than not
contribute[]” to Tucker “misinterpreting” or “misperceiv[ing]” the behavior of
others as representing threats to him.

¶7 The circuit court denied Tucker’s motion. The court generally
credited Dr. Stress’ report and testimony (“the expert evidence”) but concluded
that it did not constitute a new factor. This was based on the court’s determination
that the relative deficits and personality traits described by Stress were already
evident in the trial record and that the court had taken these dynamics into
consideration at sentencing, albeit without the precision afforded by the expert
evidence.

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No. 2024AP887-CR

¶8 In the alternative, the circuit court concluded that, even if the expert
evidence constituted a new factor, it did not warrant a sentence modification. The
court said that the additional “nuance” regarding Tucker’s mental health provided
by the expert evidence did not “diminish,” in the court’s mind, the level of
Tucker’s culpability, nor did it change the court’s view on the need for
punishment, which the court described as the primary driver of the sentence. The
court said that, even if the perspective provided by the expert evidence marginally
increased the court’s impression that Tucker could successfully rehabilitate, that
would not outweigh the need for punishment. For these reasons, the court
concluded, there were “not sufficient grounds” for the court to exercise its
discretion to modify the sentence, which the court continued to consider to be “the
most appropriate sentence given all the facts and circumstances of this case.”
Tucker appeals.

DISCUSSION

¶9 A new factor is “‘a fact or set of facts highly relevant to the
imposition of sentence, but not known to the [circuit court] 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 (quoting Rosado v.
State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975)).

¶10 Deciding a sentence modification motion based on a new factor is
potentially a two-step inquiry that can end if the first step is not satisfied. Harbor,
333 Wis. 2d 53, ¶36. In the first step, the defendant must demonstrate the
existence of a new factor by clear and convincing evidence. Id. We review this
determination de novo. Id., ¶33. To meet this burden, the defendant must show

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No. 2024AP887-CR

both that the fact or facts are “new,” that is, that they were not known to the circuit
court at the time of sentencing, and that the fact or facts are “highly relevant to the
sentence imposed.” Schueller, 413 Wis. 2d 59, ¶29. Here, we assume without
deciding that Tucker met this burden.

¶11 In the second step of the new-factor-based modification inquiry, the
circuit court exercises its discretion to determine whether the new factor justifies
modification of the sentence. Harbor, 333 Wis. 2d 53, ¶37. An appellate court
reviews this determination for an erroneous exercise of discretion. Id., ¶33.

¶12 We begin with a significant deficiency in Tucker’s appellate
briefing. Tucker’s brief-in-chief on appeal does not explicitly address the second
step or address the standards for that step. The State, in its response brief,
highlights these omissions and contends that they are a sufficient basis to reject
Tucker’s argument on appeal, citing State v. Pettit, 171 Wis. 2d 627, 492 N.W.2d
633 (Ct. App. 1992). See WIS. STAT. RULE 809.19(1)(b), (d), (e). In reply, Tucker
acknowledges that his initial brief “did not include a specific section arguing that
the circuit court” erroneously exercised its discretion on the second step of the test.
But, Tucker contends, his arguments addressing the first step included references
sufficient to stand for a challenge to the postconviction court’s exercise of
discretion on the second step.

¶13 We question whether Tucker’s attempt to reframe his argument in
his reply brief constitutes a timely development of all of the issues he needs to
raise in this appeal to potentially merit reversal of the circuit court’s decision. See
State v. Lock, 2013 WI App 80, ¶38 n.6, 348 Wis. 2d 334, 833 N.W.2d 189 (court
of appeals typically declines to address issues raised for the first time in reply
brief). But beyond that, when we review Tucker’s argument on the merits, we

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No. 2024AP887-CR

conclude that he fails to establish that the circuit court erroneously exercised its
discretion on the second step of the test for reasons that we now explain.

¶14 Tucker suggests that the expert evidence demonstrates that it was not
appropriate for the sentencing court to give primary weight to the need for
punishment. Specifically, Tucker argues that the expert evidence shows that
Tucker “truly believed” that, under the circumstances, shooting the victim was
“the only way to protect himself from death or great bodily harm” and that he
lacked an intent to harm the victim or did not even have a reckless or negligent
state of mind. From this, Tucker apparently intends to argue that, with the benefit
of the expert evidence, the circuit court should have viewed Tucker as having such
a low level of culpability that there was significantly less need to punish Tucker
than was apparent at the time of sentencing. But Tucker fails to show that the
circuit court could not reasonably view the expert evidence as merely providing
additional support for how the court in fact weighed intent-related factors at
sentencing. For these reasons, Tucker fails to show that it was unreasonable for
the court to determine that the expert evidence did not reduce, in the court’s
judgment, Tucker’s level of culpability or the need for punishment.

¶15 The jury’s verdict is relevant background for our conclusion because
at times Tucker makes arguments that contradict the guilty verdict on which the
circuit court was obligated to rely. The jury’s determination that Tucker is guilty
of second-degree intentional homicide signifies the following findings: that

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No. 2024AP887-CR

Tucker intended to kill the victim;3 that Tucker believed both that he was in
imminent danger of death or great bodily harm and that shooting the victim was
necessary to defend himself; but that it was unreasonable for Tucker to believe
either that he was in danger or that shooting the victim as he did constituted a
necessary level of force. See WIS. STAT. §§ 940.01(1)(a), (2)(b), 940.05(1)(a);
WIS JI—CRIMINAL 1016. Consistent with these implied findings of the jury, the
circuit court at sentencing explained that it viewed Tucker as having committed “a
very serious offense” in which he took another person’s life. Against this
background, the court explained in its postconviction decision that the expert
evidence served only to reinforce what was already apparent to the court at the
time of sentencing. Namely, Tucker acted on an unreasonable belief in responding
to a perceived threat, and under all of the circumstances this called for a sentence
that emphasized the goal of punishment.4

3
Consistent with how the jury was instructed at trial, “intent to kill” for purposes of first-
and second-degree homicide, as applied here, means that Tucker “had the mental purpose to take”
the victim’s life or that Tucker “was aware that his conduct was practically certain to cause” the
victim’s death. See WIS. STAT. §§ 939.23(4), 940.01(1)(a), (2)(b), 940.05(1)(a); WIS JI—
CRIMINAL 1016.
4
Tucker makes a series of confusing references to the circuit court’s reasoning at the
sentencing hearing. Tucker apparently means to assert that the court did not consider his state of
mind at the time of the shooting, and he identifies statements of the court at sentencing that
Tucker asserts show that the court misunderstood his level of intent. However, Tucker does not
persuade us that the sentencing court ignored or misapplied evidence as to Tucker’s state of mind.
So far as Tucker shows, the court at all pertinent times understood—consistent with the jury
verdict—that Tucker had either the mental purpose to take the victim’s life or the awareness that
the shooting was practically certain to cause the victim’s death. See supra note 3. And, contrary
to some of Tucker’s assertions, nothing in Dr. Stress’ testimony, even as fully credited by the
court, could support the view that Tucker lacked a “guilty mind” in the sense that he did not
intend to kill the victim based on an unreasonable belief that shooting the victim was necessary
for his self-defense.

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No. 2024AP887-CR

¶16 In sum, Tucker does not show that the circuit court erroneously
exercised its discretion in determining that the expert evidence did not merit
sentence modification.

CONCLUSION

¶17 For all of these reasons, the judgment of conviction and order
denying Tucker’s postconviction motion are affirmed.

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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