State v. Jonathan L. Liebzeit

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.
August 30, 2022
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. 2021AP9-CR Cir. Ct. No. 1996CF576

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JONATHAN L. LIEBZEIT,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Outagamie County:
JOHN A. DES JARDINS, Judge. Reversed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 GILL, J. In 2019, after attending a judicial education seminar at
which scientific research on brain development in young adults was discussed, the
Honorable John A. Des Jardins took it upon himself to write to the State and
Jonathan Liebzeit’s appellate counsel to have them consider the potential
No. 2021AP9-CR

modification of Liebzeit’s 1997 sentence of life without parole.1 Liebzeit
subsequently filed a postconviction motion to modify his 1997 sentence based on
two new factors: (1) new scientific understanding of brain maturity in
adolescents; and (2) Liebzeit’s brain damage from his inhalant use. The circuit
court ultimately granted Liebzeit’s motion and modified Liebzeit’s sentence.

¶2 The State appeals the circuit court order modifying Liebzeit’s 1997
sentence. The State contends that new scientific research does not constitute a
new factor under Wisconsin law. The State further argues that neither Liebzeit’s
brain damage due to his inhalant use nor the results of any new research were
highly relevant to Liebzeit’s original sentence.

¶3 We conclude the circuit court erred by modifying Liebzeit’s original
sentence because Liebzeit failed to meet his burden of showing the existence of
either of his claimed new factors by clear and convincing evidence. Existing case
law prohibits the circuit court from relying upon scientific research on brain
development in emerging adults as a new factor providing a basis for sentence
modification because the research and its conclusions were well known at the time
of Liebzeit’s sentencing in 1997. See State v. McDermott, 2012 WI App 14, 339
Wis. 2d 316, 810 N.W.2d 237. Moreover, any new information regarding
Liebzeit’s brain damage from inhalant use and its effect on his impulsivity, and the
court’s understanding that Liebzeit may have an increased potential for
rehabilitation, were not highly relevant to his 1997 sentence. See Rosado v. State,

1
The Honorable John A. Des Jardins presided over Liebzeit’s trial and the 1997
sentencing. Judge Des Jardins also entered the order modifying Liebzeit’s sentence that is the
subject of this appeal. Throughout this opinion, we refer to Judge Des Jardins as “the circuit
court” unless otherwise noted.

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No. 2021AP9-CR

70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). Accordingly, we reverse the order
modifying Liebzeit’s sentence.

BACKGROUND

¶4 In October 1996, Liebzeit and two other individuals, Daniel
Mischler and James Thompson, killed Alex Schaffer. Days after the murder, the
State charged Liebzeit with one count of first-degree intentional homicide by use
of a dangerous weapon as a party to a crime, and one count of concealing a corpse
as a party to a crime. The case proceeded to a jury trial.

¶5 At trial, conflicting testimony was presented surrounding the details
of the killing. Mischler testified that Liebzeit, who had just turned nineteen years
old at the time of the killing, harbored resentment toward Schaffer over trivial
matters, including the fact that Schaffer had stolen a hair tie from Liebzeit’s
girlfriend years prior.

¶6 According to Mischler, Liebzeit created a plan in February 1996 to
get back at Schaffer. Liebzeit’s plan involved inviting Schaffer over to Liebzeit’s
father’s house and then taking him into sewer tunnels located in a nearby park to
“hurt” or “scare” him.2 There was also testimony from Jayme Lynn Bowman,
who was living at Liebzeit’s father’s house at the time, that Liebzeit and
Thompson wanted to invite Schaffer over to “kill” him and that they were
“excited” about doing it. Bowman testified that she asked Liebzeit if the trivial
matters were “really a reason to kill [Schaffer].” Bowman said that Liebzeit
smiled and said “yeah.” Liebzeit testified, however, that it was Mischler who

2
The sewer tunnels were roughly five or six feet wide.

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No. 2021AP9-CR

hated Schaffer because Schaffer owed Mischler money. Liebzeit also testified that
Mischler and Thompson brought up the idea of going to the park to beat up
Schaffer.

¶7 Schaffer’s mother testified that around midnight on October 27,
1996, Schaffer received a call from Liebzeit inviting Schaffer over to Liebzeit’s
house. When Schaffer arrived, Mischler and Thompson were also there. Mischler
testified that, prior to Schaffer’s arrival, Thompson showed him “maps of the
sewer tunnels under the park,” and that either Liebzeit or Thompson “had a bat”
wrapped in electrical tape. According to Mischler, Liebzeit wanted to “beat
[Schaffer] up with the bat.” Mischler also testified that he expressed hesitation to
Thompson and Liebzeit about hurting Schaffer. Liebzeit responded by stating that
Mischler did not have to hurt Schaffer and that Mischler “could turn away and just
crouch down and cover [his] ears.”

¶8 Once Schaffer arrived at the house, he “had a couple of beers.”
After approximately fifteen minutes, Liebzeit told Schaffer they were going to the
park to smoke marijuana. The four then walked through the park and into the
sewer tunnels. Mischler testified that either Thompson or Liebzeit had the bat as
they walked to the park, but that he could not actually see the bat.

¶9 After the four explored the sewer tunnels for several minutes, they
began walking back toward one of the sewer tunnel openings to leave. Liebzeit
then repeatedly struck Schaffer with the baseball bat, including at least once in the
head. Schaffer attempted to run away, but Mischler grabbed Schaffer’s shirt and
prevented him from leaving the sewer tunnel. Mischler testified that Liebzeit then
continued beating Schaffer with the baseball bat. While being beaten, Schaffer
continuously said that he was sorry and offered them money to stop.

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¶10 Schaffer briefly escaped Mischler’s grasp, but Thompson quickly
caught Schaffer and repeatedly hit him with a flashlight. According to Mischler,
Schaffer then escaped from Thompson and ran out of the sewer tunnel while being
chased by Liebzeit and Thompson. Mischler testified that when he exited the
tunnel, he observed the three sitting against the exterior of the tunnel.

¶11 Mischler further testified that Schaffer said, “Listen, I learned my
lesson. I’m sorry. I’ll give you money if you let me go.” According to Mischler,
Liebzeit responded by “yelling” and “swearing” at Schaffer and then beat Schaffer
with the baseball bat, hitting Schaffer at least once “over the back of the head”
making “a cracking noise.” Liebzeit testified that Thompson also hit Schaffer
multiple times with the bat. The beating continued until Schaffer ended up in a
pool of water near the sewer tunnel. In all, Schaffer was hit “multiple” times,
including at least six times in the head, and had injuries to his head, left hand,
wrists, forearms, elbows, and legs.

¶12 Mischler eventually went into the water, at the urging of either
Liebzeit or Thompson, and with the assistance of Thompson, held Schaffer under
the water until he stopped moving. According to Mischler, Liebzeit yelled for
Thompson to check for Schaffer’s pulse. After Thompson felt no pulse, he and
Mischler moved Schaffer’s body into the sewer tunnel. Thompson stole
Schaffer’s wallet, which contained three dollars, and left the park with Liebzeit
and Mischler.

¶13 Mischler and Bowman testified that Liebzeit and Thompson laughed
about the murder when they returned to the house, including about the fact that
Schaffer told them he had money even though he only had three dollars. Upon
arriving back at the house, Liebzeit, Thompson, and Mischler removed the tape

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No. 2021AP9-CR

from the bat. Later that day, Liebzeit and Thompson moved Schaffer’s body
further into the sewer tunnel. The medical examiner testified that Schaffer’s cause
of death was determined to be a combination of multiple blunt force injuries and
drowning. The jury found Liebzeit guilty of both counts.

¶14 Prior to sentencing, a Department of Corrections agent prepared a
presentence investigation report (PSI) after meeting with Liebzeit. The PSI
outlined Liebzeit’s long history of drug use, particularly his use of inhalants
beginning in sixth grade. The PSI also referenced Liebzeit’s institutional history,
including a failed attempt at admittance into Winnebago Mental Health Institute, a
hospitalization due to suicidal tendencies, and participation in the Libertas
Treatment Program—a drug and alcohol treatment program in Green Bay.

¶15 At Liebzeit’s sentencing in 1997 (the 1997 sentencing), the State
referenced Liebzeit’s history of drug use. Similarly, Liebzeit’s defense counsel3
referenced Liebzeit’s inhalant addiction numerous times. For example, his
defense counsel explained that Liebzeit’s mother wanted him committed to
Winnebago Mental Health Institute for his inhalant addiction, but that the
institution would not admit him. Likewise, the circuit court noted Liebzeit’s
substance abuse issues during its sentencing remarks, stating that Liebzeit had
used nearly every drug available, had a particularly serious problem with
inhalants, and “rejected efforts at Libertas,” among other institutions.

¶16 The circuit court determined that “there was a significant amount of
planning and premeditation that went into [Schaffer’s] homicide.” For example,

3
We refer to Liebzeit’s trial counsel as defense counsel, and his current counsel as
appellate counsel.

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No. 2021AP9-CR

the court referenced statements that Liebzeit had purportedly made nine months
prior to the murder about wanting to kill Schaffer. Regarding the possibility of
rehabilitation, the court found that Liebzeit could not be rehabilitated. The court
stated that “[t]here’s a monster in there, and we don’t know when it’s going to
come out again.” Ultimately, the court sentenced Liebzeit on Count 1—
first-degree intentional homicide by use of a dangerous weapon as a party to a
crime—to life in prison without the possibility of parole, and on Count 2—hiding
a corpse as a party to a crime—to a concurrent five-year term of confinement.

¶17 In 2019, Judge Des Jardins attended a judicial education seminar at
which a speaker, Dr. Leah Somerville, discussed new research on brain
development in emerging adults. Thereafter, Judge Des Jardins sentenced an
eighteen-year-old individual, causing him to recall Liebzeit’s case and
Dr. Somerville’s paper. As a result, in 2020, Judge Des Jardins sent a letter to the
State and Liebzeit’s appellate counsel suggesting that a sentence modification may
be appropriate based on new scientific research into “brain development of
persons” between eighteen- and twenty-one-years old that was not available at the
time of the 1997 sentencing.4 Judge Des Jardins referenced Dr. Somerville’s

4
The circuit court’s letter also stated that it would “contact counsel to set a scheduling
conference date” regarding the potential sentence modification. At the circuit court level, the
State subsequently raised a judicial bias claim based on the court raising the sentence
modification issue sua sponte. The State also brought forth an argument that the court was
actually attempting to resentence Liebzeit—which would be barred under WIS. STAT. § 808.075
(2019-20) due to a pending appeal—as opposed to a sentence modification motion under WIS.
STAT. § 973.19 (2019-20)—which is permitted even during a pending appeal under
§ 808.075(4)(g)6. (2019-20). The State appears to abandon both arguments on appeal. See A.O.
Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 493, 588 N.W.2d 475 (Ct. App. 1998)
(“[W]hen a party fails to argue an issue in its [briefs on appeal], the appellate court may treat the
issue as having been abandoned, even though the issue was presented to the trial court.”). In
addition, because we ultimately decide this appeal in favor of the State on narrower grounds, we
need not address judicial bias or § 808.075. See State v. Castillo, 213 Wis. 2d 488, 492, 570
N.W.2d 44 (1997) (“An appellate court should decide cases on the narrowest possible grounds.”).

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No. 2021AP9-CR

paper “that detailed how the brain develops for many years beyond age eighteen.”
See Leah H. Somerville, Searching for Signatures of Brain Maturity: What Are
We Searching For?, 92 NEURON J. 1164, 1164-67 (2016) (hereinafter, the
Somerville Paper).5

¶18 Appellate counsel subsequently filed a motion to modify Liebzeit’s
sentence based on two new factors: (1) new scientific research on brain
development in emerging adults; and (2) Liebzeit’s brain damage stemming from
his inhalant use. Regarding Liebzeit’s brain damage, appellate counsel relied on a
“Libertas report [(hereinafter, the Libertas Report)] never presented to the
[circuit c]ourt at the time of sentencing [which] revealed that when Liebzeit was
13 years old, he was diagnosed with brain damage as a consequence of an
addiction to inhalants.” The Libertas Report further stated that Liebzeit’s brain
damage “was playing a part in his ability to fully participate in [treatment
program] assignments.”

5
Liebzeit cited to other scientific studies throughout the sentence modification process.
Liebzeit, for example, cited to a National Institute of Mental Health publication that explained
“brain maturation” in young adults. Another study purported to show that eighteen- to twenty-
two-year-old “participants took more risks in the presence of same-age peers than when they were
either alone or in the presence of a slightly older young adult.” That said, and as the State pointed
out at the sentence modification motion hearing, appellate counsel never submitted those studies
into the trial record, and they are therefore not in the appellate record. From what we can glean,
the other studies cited by Liebzeit are in the same vein as the Somerville Paper.

Further, and as we will explain, the circuit court ultimately made its decision citing “new
studies on brain development,” and referenced the other studies cited by Liebzeit that are not in
the record. We will therefore refer to scientific research regarding young adults’ brain maturity
generally as “new scientific research on brain development in emerging adults” for the remainder
of this opinion, and to the Somerville Paper specifically where appropriate. Again, we fail to see
any relevant difference between the general studies regarding new scientific research on brain
development in emerging adults and the Somerville Paper.

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No. 2021AP9-CR

¶19 The circuit court then held a nonevidentiary hearing on the sentence
modification motion at which it heard argument about whether Liebzeit presented
a new factor as a matter of law.6 The court concluded that Liebzeit had proven by
clear and convincing evidence that both the new scientific research on brain
development in emerging adults, and Liebzeit’s brain damage resulting from his
own inhalant use constituted new factors.

¶20 Addressing Liebzeit’s brain damage, the circuit court concluded that
the impact the brain damage may have had on Liebzeit’s impulse control was
relevant to whether Liebzeit was likely to be successfully rehabilitated. The court
also noted that the brain damage information was not presented to the court at the
time of Liebzeit’s 1997 sentencing.

¶21 The circuit court further concluded that since the 1997 sentencing,
new scientific research on brain development in emerging adults had found that
individuals between eighteen- and twenty-one-years old function closer to
adolescents aged thirteen to seventeen, than adults aged twenty-two to
twenty-five-years old. The court stated this new research “was not available at the
time Liebzeit was sentenced.” The court further concluded that the new scientific
research on brain development in emerging adults was relevant to Liebzeit’s
original sentence.

6
At the circuit court level, Liebzeit also argued in his sentence modification motion that
his prison records showed that he “demonstrated the capacity to change.” In response, the State
argued that Liebzeit’s prison records should not be considered when assessing whether there were
new factors warranting sentence modification. The circuit court did not review the prison records
and concluded at the sentence modification motion hearing that those records were not relevant
for purposes of a new factor analysis. Liebzeit did not file an appeal to challenge that conclusion,
and we therefore do not address it further.

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No. 2021AP9-CR

¶22 Subsequently, the circuit court held a sentence modification hearing.
Based on the two new factors, the court amended Liebzeit’s 1997 sentence,
making him eligible for parole in 2023. The court explained its rationale for
modifying Liebzeit’s sentence, saying:

At [the 1997 sentencing,] the [c]ourt focused its attention
on the depravity of the crime and its shocking and cruel
nature.

….

Through brain imaging and other developments in
neuroscience[, scientists] have been able to show that
emerging adults under the age of 21 or even 25 lack adult
level[s] of impulse control, planning, and self-regulation.

….

It is likely that [Liebzeit’s] brain was damaged and not
fully developed. Youthful brains at the age of 19 are
different from full-fledged adult brains. If a sentence fails
to take into account the differences in an emerging adult
brain at age 19 that then results in confinement beyond the
duration of their life expectancy, it lacks an understanding
of societal decency, even though the crime committed as
demonstrated in this case was a callous, deviant act toward
humanity.

….

At the [1997] sentencing the [c]ourt placed almost all of the
weight on the monstrous nature of the homicide. This
[c]ourt dismissed the potential for rehabilitation and
indicated at that time that how does one rehabilitate a
person that has inside himself such rage and anger over
such trivial matters that they would have killed a friend.
Rehabilitation would be problematic to deal with such an
antisocial personality as this.

….

Because the [c]ourt was unaware of the issues of brain
development and brain damage, it failed to properly
consider [Liebzeit’s] difficulty to appreciate the risks and
consequences of his behavior combined with peer pressures
and his home environment. The [c]ourt’s belief of
[Liebzeit’s] long-term dangerousness to society was likely

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No. 2021AP9-CR

misguided. Again, the [c]ourt based that determination
primarily on the nature of the homicide.

….

[T]his [c]ourt did not understand the emerging adult brain
development and rejected the possibility of rehabilitation.
That was wrong.

The State now appeals.

DISCUSSION

¶23 Subject to certain constraints, 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. For example, a court may modify a sentence when it determines
that the sentence is illegal or void, or when the sentence is unduly harsh or
unconscionable. Id., ¶35 n.8. Courts may also modify a sentence based on a “new
factor.” Id., ¶35 (citation omitted). Sentence modification, cannot, however, be
based on reflection and second thoughts alone. Id.

¶24 In this case, the circuit court justified its sentence modification based
on the existence of two “new factors.” 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.

Id., ¶40 (citing Rosado, 70 Wis. 2d at 288). We review sentence modification
based on a new factor using a two-step inquiry. Id., ¶36. First, Liebzeit bears the
burden of demonstrating by clear and convincing evidence that a new factor exists.

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No. 2021AP9-CR

See id. Whether he has met that burden is a question of law that we review
de novo.7 See id. If Liebzeit meets that burden, we review the circuit court’s
decision to modify his sentence for an erroneous exercise of discretion. See
id., ¶33. “Accordingly, if a court determines that the facts do not constitute a new
factor as a matter of law, ‘it need go no further in its analysis.’” Id., ¶38 (citation
omitted).

I. Brain damage from Liebzeit’s inhalant use does not constitute a new factor

¶25 The circuit court modified Liebzeit’s sentence in part based on new
information regarding Liebzeit’s brain damage from his inhalant use. The Libertas
Report states that Liebzeit suffered permanent “brain damage as a result of his
long[-]term inhalant abuse” and that the brain damage played a part “in his ability
to fully participate in [treatment program] assignments.” The Libertas Report does
not state anything else of significance related to his inhalant use or brain damage.

¶26 The circuit court explained that “the impact that [brain] damage may
have had on impulse control is relevant to whether [Liebzeit] is someone likely to
be successfully rehabilitated.” (Emphasis added.) Liebzeit echoes the court’s
analysis by arguing that facts surrounding a defendant’s brain damage are highly
relevant at sentencing because courts are required to consider “the defendant’s
character and prospects for rehabilitation,” which “in turn, alters the judicial
calculus pertaining to protecting the public.”

7
Liebzeit argues that we should not review the first part of the new factor analysis using
a de novo standard of review. As he correctly concedes, however, a de novo standard of review
is well settled in our supreme court’s case law. See, e.g., State v. Harbor, 2011 WI 28, ¶¶36-37,
333 Wis. 2d 53, 797 N.W.2d 828. We must follow our supreme court’s precedent. See State v.
Lira, 2021 WI 81, ¶46, 399 Wis. 2d 419, 966 N.W.2d 605 (“The supreme court, ‘unlike the court
of appeals, has been designated by the constitution and the legislature as a law-declaring court.’”
(citation omitted)).

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No. 2021AP9-CR

¶27 Conversely, the State argues that Liebzeit’s purported brain damage
and alleged resulting impulsivity were not highly relevant to the imposition of his
original sentence because “one of the reasons the [circuit] court imposed life
without parole here was precisely because this horrific, unprovoked murder was
not the result of rashness or impulsivity.” We agree with the State and conclude
that the court erred when it determined that evidence of Liebzeit’s brain damage
from inhalants and his alleged impulsivity were highly relevant to the imposition
of his original sentence.

¶28 As an initial matter, nothing in the record suggests that Liebzeit’s
brain damage had any impact on his impulsivity. The Libertas Report simply
states that Liebzeit’s brain damage played a part “in his ability to fully participate
in [treatment program] assignments.” It does not elaborate on why Liebzeit’s
brain damage impacted his ability to participate. At best, the Libertas Report
shows that his brain damage might have affected his concentration. But the crimes
for which he was convicted were not impulsive crimes caused by an inability to
concentrate.

¶29 Even if the Libertas Report provided evidence as to whether
Liebzeit’s brain damage impacted his impulsivity, impulsivity had no bearing on
the circuit court’s decision at the 1997 sentencing. To the contrary, as the court
explained at that sentencing, the killing was not impulsive—“[t]here was thought;
there was contemplation; there was planning.” See McCleary v. State, 49 Wis. 2d
263, 276, 182 N.W.2d 512 (1971) (“The sentence imposed in each case should call
for the minimum amount of custody or confinement which is consistent with the
protection of the public, the gravity of the offense and the rehabilitative needs of
the defendant.” (citation omitted)); see also State v. Gallion, 2004 WI 42, ¶¶23, 44
270 Wis. 2d 535, 678 N.W.2d 197. The court also reasoned that Liebzeit “had

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No. 2021AP9-CR

opportunities to withdraw, to warn his friend.… but he did not.” According to the
court, the killing was “cruel, cold, calculated, and vengeful … [in] which
[Liebzeit] played a most significant role.” The court further described the
homicide as the “most serious type of murder,” as opposed to those “in the heat of
passion” or where “intent is formed instantaneously,” such as during the course of
a robbery or high-speed chase. Because the court in 1997 did not find that the
killing was in any way the result of Liebzeit’s impulsivity, the fact that his brain
damage due to inhalant use may have caused him to otherwise act impulsively was
not highly relevant to the 1997 sentence. Therefore, Liebzeit’s brain damage, as it
relates to the nature of the killing, cannot constitute a new factor.

¶30 Additionally, in terms of protection of the public and punishment,
the circuit court explained during the 1997 sentencing:

If we have a person who, over such trivial matters, can just
take off and kill a person, what point in time can we
actually predict when this person is going to be safe in
society? Will it be when he’s 50, will he not have this
anger? Will it be when he’s 60? I don’t know that answer.
Should the public be protected? I believe it should.

Now, I don’t know if there’s any degree of punishment that
can really be meted out to appropriately punish a person for
the type of crime that occurred here. In this state, we have
incarceration, that’s the punishment we can mete out.
Society needs to be protected from somebody who can
murder [over] such trivial reasons.

The court added, “I don’t know how one would begin to rehabilitate a person that
has, inside of himself, such rage and anger that over such trivial matters, that they
would kill a friend.”

¶31 The circuit court’s 1997 sentencing reveals that the court was
focused on the gravity and nature of the killing, the need to protect the public, and

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No. 2021AP9-CR

outright punishment. Due to these factors, the court found that Liebzeit could not
be rehabilitated. While it might be true that “the impact that [brain] damage may
have had on impulse control is relevant to whether [Liebzeit] is someone likely to
be successfully rehabilitated,” the court’s sentencing explanation at that time
reveals that Liebzeit’s alleged issues with impulse control and rehabilitation were
not highly relevant to the imposition of its original sentence. In other words, the
court found at the 1997 sentencing that Liebzeit could not be rehabilitated—not
because of his impulsive decision making—but because of the planning and
brutality of the killing. Thus, the focus was on punishment and protection of
society. Liebzeit’s brain damage, as it relates to rehabilitation, was not a
significant factor in the imposed sentence and therefore cannot constitute a new
factor.

¶32 Sentence modification based on a new factor requires a high degree
of relevance to the imposition of the original sentence—something Liebzeit fails to
demonstrate by clear and convincing evidence. “The requirements for sentence
modification are meant to ‘promote[] the policy of finality of judgments [while at
the same time] satisf[ying] the purpose of sentence modification, which is the
correction of unjust sentences.’” Harbor, 333 Wis. 2d 53, ¶51 (alterations in
original; citation omitted). To allow the circuit court to modify Liebzeit’s
sentence based on the mere conclusion that his brain damage and alleged
subsequent impulsivity were relevant to rehabilitation—when in 1997 it expressly
found that the homicide was premeditated, that the public needed to be protected,
and that Liebzeit could not be rehabilitated—would allow the court to “base a
sentence modification on reflection and second thoughts alone.” See id., ¶35.

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II. New scientific research on brain development in emerging adults does not
constitute a new factor

¶33 The circuit court also modified Liebzeit’s sentence based on new
scientific research on brain development in emerging adults, which found that
eighteen- to twenty-one-year-olds function closer to adolescents aged thirteen to
seventeen than adults aged twenty-two to twenty-five. Relying primarily on the
Somerville Paper, the court found that current “neurological studies reveal that the
human brain continues to develop beyond adolescence. The brain grows in
volume and becomes more organized into a person’s mid-20s.”8 Thus, the court
concluded that Liebzeit’s brain was likely not fully developed at the time he
committed his crimes.

¶34 The State contends that any new scientific research on brain
development in emerging adults cannot be considered a new factor under State v.
Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451, and McDermott.
Assuming without deciding that the new scientific research on brain development
in emerging adults is highly relevant to Liebzeit’s original sentence, we agree with
the State that the research cannot constitute a new factor under Wisconsin
precedent because the conclusions reached by the research were well known when
Liebzeit was originally sentenced in 1997.

¶35 In Ninham, fourteen-year-old Ninham was convicted of first-degree
intentional homicide for his “horrific and senseless” killing of a thirteen-year-old
8
In particular, the Somerville Paper found that certain properties in the human brain
make it more mature, and that those properties develop over time. For example, “[l]ongitudinal
studies … show that reductions of cortical gray matter and increases in white matter continue to
actively change well into the twenties and that a point of stability emerges earlier in some brain
structures than others.” Leah H. Somerville, Searching for Signatures of Brain Maturity: What
Are We Searching For?, 92 NEURON J. 1164, 1164 (2016) (citations omitted).

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No. 2021AP9-CR

boy. Ninham, 333 Wis. 2d 335, ¶¶8-14, 23. Prior to sentencing, a PSI was
produced that stated, among other things, that Ninham was a “serious substance
abuser,” who used cocaine and consumed alcohol daily. Id., ¶25. At sentencing
in 2000, the circuit court sentenced Ninham to life in prison without the possibility
of parole on the intentional homicide conviction. Id., ¶29. In imposing the
sentence, the court cited the gravity of the offense, Ninham’s character and
culpability, and the need to protect the public. Id., ¶¶30-31.

¶36 Years later, Ninham appealed, arguing, among other things, that new
scientific research on brain development in emerging adults constituted a new
factor for purposes of a sentence modification. Id., ¶87. Specifically, Ninham
cited

magnetic resonance imaging (MRI) studies, apparently
unavailable at the time Ninham was sentenced, which tend
to show that the brain is not fully developed early in
childhood and that making impulsive decisions and
engaging in risky behavior is an inevitable part of
adolescence. The studies further explain, according to
Ninham, that as the brain matures, adolescents almost
universally grow out of their impulsive and risky behavior.
In addition, Ninham [pointed to] a growing body of
research suggest[ing] that alcohol causes more damage to
developing teenage brains than previously thought.
According to Ninham, this new scientific research on
adolescent brain development undermines the circuit
court’s findings regarding Ninham’s culpability and
recidivism.

Id. (footnote omitted).

¶37 On appeal, our supreme court concluded that Ninham failed to show
by clear and convincing evidence that the new scientific research on brain
development in emerging adults constituted a new factor. Id., ¶91. The court
assumed without deciding that the MRI studies were not in existence when

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No. 2021AP9-CR

Ninham was sentenced, but it held that “the conclusions reached by the studies
were already in existence and well reported by the time Ninham was sentenced in
2000.” Id. In support of this proposition, the court cited Thompson v. Oklahoma,
487 U.S. 815 (1988) (plurality opinion). In that case, the Supreme Court “referred
to a 1978 report by a task force on sentencing young offenders to make clear that
‘the Court ha[d] already endorsed’ the proposition that juvenile offenders under
the age of 16 are less culpable than adult offenders.” Ninham, 333 Wis. 2d 335,
¶92 (alteration in original) (citing Thompson, 487 U.S. at 835).

¶38 Similar to Ninham, in McDermott, eighteen-year-old McDermott
was found guilty of first-degree intentional homicide while possessing a dangerous
weapon as a party to a crime. McDermott, 339 Wis. 2d 316, ¶2. At McDermott’s
sentencing in 1991, the circuit court characterized the killing as “a pre-planned
premeditated execution,” and it sentenced McDermott to life imprisonment with
the possibility of parole in 2025. Id., ¶¶2-3. Years later, McDermott filed a
motion to modify his sentence based on a new factor. Id., ¶1. McDermott argued
that “recent research” demonstrated that “persons around the age of eighteen are
not as mature as adults and, therefore, should not be held to the same degree of
culpability as adults.” Id., ¶8. Without an evidentiary hearing, the court denied
McDermott’s motion to modify his 1991 sentence based on a new factor. Id., ¶1.

¶39 On appeal, we affirmed the circuit court’s decision, concluding that
the new research did not constitute a new factor for two reasons. Id., ¶17. First,
under Ninham, “new scientific research regarding adolescent brain development”
does not constitute a new factor. McDermott, 339 Wis. 2d 316, ¶18. Similar to
Ninham, we held that the conclusions reached by the studies McDermott offered

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No. 2021AP9-CR

were known when the circuit court sentenced him in 1991. McDermott, 339
Wis. 2d 316, ¶19.9 Second, McDermott’s proffered new research failed to
constitute a new factor because the fact “that adolescents are generally more
impulsive than adults has been known since humans were able to observe their
environment.” Id., ¶20. We reasoned that, “[t]o say, as McDermott argues, that
the trial court did not realize what recent scientific research has confirmed ignores
reality, and, in essence, puts the old wine of human experience in the new bottles
of recent research and labels the entire package as ‘new.’” Id., ¶21.

¶40 The circuit court in this case attempted to distinguish Ninham and
McDermott at the hearing on Liebzeit’s motion for sentence modification. The
court concluded that those two cases did not prevent the court from concluding
that the research cited by Liebzeit constituted a new factor because both cases
were decided prior to a number of United States Supreme Court decisions,
including Miller v. Alabama, 567 U.S. 460 (2012).10 On appeal, Liebzeit echoes

9
In further support of the fact that the studies’ conclusions were well known in 1991,
we also cited Thompson v. Oklahoma, 487 U.S. 815 (1988) (plurality opinion), which stated:

Inexperience, less education, and less intelligence make the
teenager less able to evaluate the consequences of his or her
conduct while at the same time he or she is much more apt to be
motivated by mere emotion or peer pressure than is an adult.
The reasons why juveniles are not trusted with the privileges and
responsibilities of an adult also explain why their irresponsible
conduct is not as morally reprehensible as that of an adult.

State v. McDermott, 2012 WI App 14, ¶19, 339 Wis. 2d 316, 810 N.W.2d 237 (quoting
Thompson, 487 U.S. at 835).
10
The circuit court further reasoned that McDermott and State v. Ninham, 2011 WI 33,
333 Wis. 2d 335, 797 N.W.2d 451, did not apply because the defendants in those cases presented
“general research” only. Conversely, the court stated that “Liebzeit is presenting new studies
specifically addressing persons between the ages of 18 and 22” and “research that fits his
individual history.”

(continued)

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No. 2021AP9-CR

the court’s analysis in this regard.11 Conversely, the State argues that the court
erred in its analysis because Ninham and McDermott are consistent with recent
United States Supreme Court precedent.

¶41 In Miller, the Supreme Court held that statutory sentencing schemes
that mandate life in prison without the possibility of parole for juvenile offenders
violate the Eighth Amendment. Miller, 567 U.S. at 479. Miller also requires
sentencing courts “to take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.”
Id. at 480. Citing its recent decisions involving juveniles and the criminal justice
system, the Court held that children are “constitutionally different from adults for
purposes of sentencing … [b]ecause juveniles have diminished culpability and
greater prospects for reform.” Id. at 471. Namely, juveniles lack maturity and
have an “‘underdeveloped sense of responsibility,’ leading to recklessness,
impulsivity, and heedless risk-taking.” Id. (citation omitted). Further, “children

These considerations cited by the circuit court, however, go to the relevancy prong of the
new factor analysis—in other words, whether the purported new factor was highly relevant to the
imposition of the defendant’s original sentence. See Ninham, 333 Wis. 2d 335, ¶93. Both
McDermott and Ninham concluded on the second prong of the new factor analysis (Ninham
concluded on both prongs)—in other words, whether the purported new factor was not known to
the trial judge at the time of the original sentencing. See McDermott, 339 Wis. 2d 316, ¶¶19-20;
Ninham, 333 Wis. 2d 335, ¶¶91-92. Further, as noted above, we assume without deciding that
the new scientific research cited by Liebzeit is highly relevant to the imposition of his original
sentence. The issue is whether the conclusions drawn by that research were known at the time of
the 1997 sentencing—thus, McDermott and Ninham both apply to this case.
11
The circuit court also cited Roper v. Simmons, 543 U.S. 551, 578 (2005) (invalidating
the death penalty for all juvenile offenders under age eighteen), and Graham v. Florida, 560 U.S.
48, 82 (2010) (invalidating life without parole sentences for juveniles convicted of non-homicide
offenses). In addition to Miller v. Alabama, 567 U.S. 460 (2012), Roper and Graham, Liebzeit
cites Montgomery v. Louisiana, 577 U.S. 190, 212 (2016) (holding “that Miller announced a
substantive rule of constitutional law”), to support this part of his analysis.

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No. 2021AP9-CR

‘are more vulnerable … to negative influences and outside pressures.’” Id.
(alteration in original; citation omitted).

¶42 We agree with the State that Ninham is consistent with Miller and
any other United States Supreme Court precedent relied on by the circuit court.12
In fact, we addressed this issue in State v. Barbeau, 2016 WI App 51, ¶25, 370
Wis. 2d 736, 883 N.W.2d 520, and held that Miller does not alter the analysis in
Ninham. We noted that Miller did “not consider [the] alternative argument that
the Eighth Amendment requires a categorical bar on life without parole for
juveniles” and that “nothing in Miller undercuts our supreme court’s holding in
Ninham.” Barbeau, 370 Wis. 2d 736, ¶32 (alteration in original) (quoting Miller,
567 U.S. at 479).

¶43 In sum, Ninham dictates that new scientific research on brain
development in emerging adults regarding juveniles does not constitute a new
factor warranting sentence modification, and that, under McDermott, the same
science applied to eighteen- to twenty-two-year-olds does not constitute a new
factor warranting sentence modification. We are bound by these two conclusions.
See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).13

12
We also note that Liebzeit was nineteen years old at the time of the killing, making
him an adult and not a juvenile.
13
Liebzeit also contends on appeal that the reasoning in McDermott does not apply
because, in that case, McDermott was made eligible for parole eventually. Liebzeit asserts this
difference is “an imperative factual distinction” because McDermott “was never deemed
irretrievably incorrigible. His possible rehabilitation was never an issue.” Here, according to
Liebzeit, rehabilitation is an issue because his original sentence was with no possibility of parole,
and the circuit court relied on the possibility of rehabilitation to modify his sentence.

(continued)

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No. 2021AP9-CR

¶44 During Liebzeit’s sentence modification hearing, the circuit court
stated that the new scientific research on brain development in emerging adults
demonstrates that “the human brain continues to develop beyond adolescence.
The brain grows in volume and becomes more organized into a person’s mid-20s.”
Specifically, the Somerville Paper, on which the court chiefly relied, stated that
certain studies demonstrate that the brain “continue[s] to actively change well into
the twenties and that a point of stability emerges earlier in some brain structures
than others.” Leah H. Somerville, Searching for Signatures of Brain
Maturity: What Are We Searching For?, 92 NEURON J. 1164, 1164 (2016).

¶45 Although the Somerville Paper was not in existence in 1997, “the
conclusions reached … were already in existence and well reported” since at least
1988. See McDermott, 339 Wis. 2d 316, ¶18 (quoting Ninham, 333 Wis. 2d 335,
¶91). This conclusion is well supported by Wisconsin precedent. The new

We reject this argument. First, McDermott’s reasoning was taken from Ninham. In the
latter, a fourteen-year-old defendant was sentenced to life in prison without the possibility of
parole—the same sentence Liebzeit originally received in this case. See Ninham, 333 Wis. 2d
335, ¶2. Second, and for the same reason explained previously, the new factor test in McDermott
was not decided on relevancy grounds, but was instead decided on whether the research existed at
the time the defendant was sentenced. McDermott did not address whether the studies presented
were highly relevant to the imposition of McDermott’s sentence. As stated earlier, we are
assuming without deciding that the new science presented by Liebzeit is highly relevant to the
imposition of his original sentence.

Lastly, Liebzeit attempts to distinguish McDermott and Ninham by pointing out that the
circuit courts in those cases denied the defendants’ motions to modify their respective sentences.
Liebzeit claims that this fact is “yet another critical factual distinction” because the circuit court
in this case granted his motion. Liebzeit fails to acknowledge that McDermott and Ninham were
decided using the same legal standard in this case—in those cases, the courts never reached the
discretionary step in the Harbor analysis and, therefore, the fact that the circuit courts denied the
defendants’ respective motions is of no significance. See McDermott, 339 Wis. 2d 316, ¶22
(“McDermott has not shown that the new research is a ‘new factor’ under the first aspect of
Harbor’s two-part analysis.”); Ninham, 333 Wis. 2d 335, ¶91 (“Ninham has not demonstrated by
clear and convincing evidence that a new factor exists.”).

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No. 2021AP9-CR

scientific research on brain development in emerging adults in Ninham stated that
“the brain is not fully developed early in childhood and that making impulsive
decisions and engaging in risky behavior is an inevitable part of adolescence.”
Ninham, 333 Wis. 2d 335, ¶87. Likewise, in McDermott, the research provided
that a person’s brain is generally not through “adolescence … until a person’s
early 20s.” McDermott, 339 Wis. 2d 316, ¶16. The three scientific conclusions
essentially say the same thing—the human brain continues to develop past one’s
eighteenth birthday. As such, the circuit court erred by concluding that the new
scientific research on brain development in emerging adults constituted a new
factor for purposes of sentence modification.

By the Court.—Order reversed.

Not recommended for publication in the official reports.

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