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07/01/83 STATE WISCONSIN v. GREYLAND HEGWOOD

July 1, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT-PETITIONER,
v.
GREYLAND HEGWOOD, DEFENDANT-APPELLANT



Review of a decision of the Court of Appeals. Reversing William G. Callow, J. Shirley S. Abrahamson, J. (minority OPINION(S)ing).

The opinion of the court was delivered by: Callow

This review arises out of a decision of the court of appeals *fn1 which vacated and remanded an order of the Milwaukee county circuit court, Judge Michael J. Skwierawski, denying Greyland Hegwood's motion to modify sentence.

On April 12, 1976, Hegwood pled guilty to one count of rape, party to a crime, in violation of sec. 944.01, Stats., 1973, and one count of armed robbery, party to a crime, in violation of secs. 943.32(1) (b), 943.32(2), and 939.05, Stats., 1973. Hegwood was sentenced to concurrent prison terms of twenty-five (25) years for the rape charge and ten (10) years for the armed robbery charge.

At the time of Hegwood's guilty plea and sentencing, Wisconsin law prescribed a maximum penalty of thirty (30) years imprisonment for the crime of rape. Sec. 944.01, Stats., 1973. *fn2 Subsequently, the legislature repealed sec. 944.01 and created sec. 940.225, in its place. Section 5, Chapter 184, Laws of 1975. The new sexual assault statute carries a maximum sentence of twenty (20) years.

In December of 1981, Hegwood filed a motion to modify his sentence on the ground that the reduction in the maximum penalty for sexual assault is a "new factor" which he is entitled to have the trial court consider. In a written decision dated February 9, 1982, the trial court denied the motion, holding that a statutory change in the maximum sentence for an offense is not a "new factor." Hegwood appealed. The court of appeals reversed, reasoning that the reduction in the maximum penalty is a "new factor" because it reflects the legislature's assessment of the gravity of the offense.

The sole issue presented on this review is whether a reduction in the maximum statutory penalty for an offense is a "new factor" justifying a post-conviction motion to modify a sentence.

It is well established that a trial court has inherent power to modify a criminal sentence. Hayes v. State, 46 Wis. 2d 93, 102, 175 N.W.2d 625 (1970); Cresci v. State, 89 Wis. 2d 495, 503, 278 N.W.2d 850 (1979). A sentence modification motion may be based upon a showing of a new factor. State v. Foellmi, 57 Wis. 2d 572, 581, 205 N.W.2d 144 (1973); State v. Wuensch, 69 Wis. 2d 467, 479, 230 N.W.2d 665 (1975). The existence of a new factor does not, however, automatically entitle the defendant to relief. Whether the new factor warrants a modification of sentence rests within the trial court's discretion.

The term "new factor" has been defined by this court as:

"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." Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).

Whether a fact or set of facts satisfies this legal standard is a question of law. Nottelson v. ILHR Department, 94 Wis. 2d 106, 116, 287 N.W.2d 763 (1980). Accordingly, on review this court need not give deference to the trial court's determination. First National Leasing Corp. v. City of Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251 (1977). Nevertheless, we agree with the ruling of the trial court. The reduction in the maximum penalty for sexual assault is not highly relevant to the imposition of sentence and, therefore, does not constitute a "new factor."

Sec. 990.04, Stats., *fn3 provides that the repeal of a statute shall not remit, defeat, or impair any criminal liability for offenses committed prior thereto unless such criminal liability is specifically and expressly remitted or abrogated by the repealing statute. Criminal liability under the old rape statute was not expressly remitted by its repeal. Therefore, retroactive application of the reduced maximum penalty for sexual assault under the new statute is precluded.

In Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540 (1978), the defendant asked the court to reduce his criminal sentence for rape. He contended that his sentence should be reduced in the interest of fundamental fairness because the maximum penalty for rape had been reduced. Relying upon sec. 990.04, Stats., this court held that the subsequent statutory change in the maximum penalty did not warrant a modification of sentence. In reaching this Conclusion, the court stated:

"The repeal of the former statute does not in any way remit; defeat or impair the defendant's criminal liability for the offense committed. Sec. 990.04, Stats. The defendant's argument would be equally applicable in the case of every prisoner now serving a sentence of more than fifteen years for the offense of rape, and, moreover, suggests that every reduction, by the legislature, of the maximum prison term for an offense must be given retroactive effect." Id. at 310.

The foregoing authorities establish that the reduction in the maximum penalty for sexual assault shall not operate to reduce the sentence for a previously committed offense. Therefore, such reduction is not highly relevant to the imposition of sentence. We conclude that the maximum penalty reduction does not constitute a "new factor" ...


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