State v. Kim M. Erickson

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT IV
October 28, 2021
To:
Hon. Mark L. Goodman
Circuit Court Judge
Electronic Notice
Shirley Chapiewsky
Clerk of Circuit Court
Monroe County Courthouse
Electronic Notice
Jeremy Newman
Electronic Notice
Sarah Marie Skiles
Electronic Notice
Jacob J. Wittwer
Electronic Notice
You are hereby notified that the Court has entered the following opinion and order:
2020AP1790-CR State of Wisconsin v. Kim M. Erickson (L.C. # 2015CF340)
Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.
Summary disposition orders 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).
Kim Erickson appeals a judgment of conviction and an order denying her postconviction
motion for sentence modification. Based upon our review of the briefs and record, we conclude
at conference that this case is appropriate for summary disposition. See WIS. STAT. RULE 809.21
(2019-20).1 We summarily affirm.
1 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

No. 2020AP1790-CR
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In August 2015, Erickson was charged with burglary, criminal damages to property, and
three counts of misdemeanor theft. Pursuant to a diversion agreement with the State, Erickson
pled no contest to burglary and the remaining counts were dismissed and read in for purposes of
sentencing. The State subsequently moved to revoke the diversion agreement. The State alleged
that Erickson had failed to comply with the agreement because, among other things, Erickson
had been charged with misdemeanor theft of moveable property in a new La Crosse County case.
The court revoked the agreement on the parties’ stipulation. At sentencing in March 2019, the
court noted that Erickson had convictions from an Adams County case that included theft of
moveable property from September 2015, which was near in time to the August 2015 offenses
charged in this case. The court also noted the pending La Crosse County case, acknowledging
that a competency hearing had been scheduled for Erickson in that matter. The court sentenced
Erickson to nine months in jail, explaining that the jail time was necessary to protect the public
from Erickson’s “penchant to commit thievery.”
In August 2020, Erickson moved for sentence modification. She asserted that, after
sentencing in this case, the charges against her in the La Crosse County case were dismissed on
the State’s motion. Erickson cited the State’s motion to dismiss the La Crosse County case,
which stated that, “given the mental health status of the defendant, both currently and at the time
of the offense, the State no longer believes that prosecution is in the interests of justice,” and also
that Erickson had “remained law-abiding since the inception of this case with no additional
violations or charges.” Erickson argued that the dismissal of the La Crosse County theft charge,
and the State’s motion asserting that Erickson had not committed any additional offenses since
2015, established a new factor for sentence modification purposes because it contradicted the
court’s opinion that Erickson had a “penchant to commit thievery.” After a hearing, the circuit

No. 2020AP1790-CR
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court denied the motion. The court determined that Erickson had not established a new factor,
and also that “the sentence was fair when it was pronounced in March of 2019, and it remains
fair today.”
A circuit court may, in its discretion, modify a sentence if the defendant shows that a new
factor exists. State v. Vaughn, 2012 WI App 129, ¶35, 344 Wis. 2d 764, 823 N.W.2d 543. A
“new factor” is a fact or 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.” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). Whether a fact or set of
facts presented by the defendant constitutes a “new factor” is a question of law that we review de
novo. State v. Harbor, 2011 WI 28, ¶33, 333 Wis. 2d 53, 797 N.W.2d 828.
“The existence of a new factor does not automatically entitle the defendant to sentence
modification. Rather, if a new factor is present, the circuit court determines whether that new
factor justifies modification of the sentence. In making that determination, the circuit court
exercises its discretion.” Id., ¶37 (citations omitted). If a court determines that the asserted facts
do not constitute a new factor, the court need not determine whether the sentence should be
modified. Id., ¶38. “Alternatively, 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 asserted by the defendant constitute a new factor as a matter of law.” Id.
Erickson argues that the dismissal of her La Crosse County case, together with the State’s
motion in that case asserting that Erickson had remained law-abiding since 2015, constitutes a
new factor by contradicting the court’s stated belief that a jail sentence was necessary based on

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Erickson’s “penchant to commit thievery.” She contends that the circuit court denied her motion
for sentence modification based entirely on its determination that she had not established a new
factor, and therefore did not consider whether sentence modification was warranted. Erickson
contends that the court’s statement that the sentence was and remained “fair” did not answer the
question of whether sentence modification was warranted. She asserts that, just as a new factor
need not frustrate the purpose of the original sentence, see id., ¶48, whether sentence
modification is warranted is not a question of whether the original sentence was “fair.” She
asserts further that the court did not reach the question of whether sentence modification was
warranted because, to do so, the court would have had to address the hypothetical question of
whether, if the court were wrong that Erickson had failed to present a new factor, that new factor
justified sentence modification. We disagree.
We will assume, for purposes of this opinion, that Erickson established a new factor. We
conclude, however, that the circuit court properly determined, after considering all of the facts
before it, that sentence modification was not warranted. The court first addressed the facts
known to the court at the time of sentencing and the facts asserted in the postconviction motion
and explained that, in the court’s view, Erickson had not established a new factor. The court
then went on to explain that Erickson’s sentence was “fair” when imposed and remained “fair” at
the time of the postconviction motion hearing, and denied sentence modification on that basis.
Thus, the court determined that, after considering the facts at the time of sentencing and the facts
asserted in the postconviction motion, the court found no basis to modify the sentence.
We give deference to the court’s discretionary determination that modification was not
warranted. See State v. Verstoppen, 185 Wis. 2d 728, 741, 519 N.W.2d 653 (Ct. App. 1994).
We will sustain a discretionary decision if it is reasonably based on the facts of record and an

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appropriate application of the law. Id. Moreover, our role as an appellate court is to search the
record for reasons to sustain a circuit court’s discretionary decision. See State v. Thiel, 2004 WI
App 225, ¶26, 277 Wis. 2d 698, 691 N.W.2d 388. Here, the court properly considered the facts
in the record and determined that, in light of all of the facts, the sentence imposed remained the
fair sentencing disposition. Accordingly, we conclude that the circuit court properly exercised
its discretion to determine that, after considering the facts alleged as a new factor, sentence
modification was not warranted.
Therefore,
IT IS ORDERED that the judgment and order are summarily affirmed pursuant to WIS.
STAT. RULE 809.21.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals