Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Yanda

Court of Appeals of Wisconsin, District III

June 18, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Dustin M. Yanda, Defendant-Appellant.

         Not recommended for publication in the official reports.

          APPEAL from a judgment and an order of the circuit court for Brown County: No. 2016CF212, MARC A. HAMMER, Judge.

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

          HRUZ, J.

         ¶1 Dustin Yanda appeals a judgment of conviction for causing injury by intoxicated use of a motor vehicle and an order denying his motion for sentence modification. Yanda discovered after sentencing that he was statutorily ineligible to participate in the Challenge Incarceration Program (CIP) and the Earned Release Program (ERP), despite the circuit court having declared him eligible for those programs at sentencing.[1] Yanda subsequently sought sentence modification, alleging that his statutory ineligibility constituted a "new factor" warranting sentence modification. On appeal, Yanda argues the circuit court applied an improper legal standard when it denied his motion, based upon the court's statement that Yanda's statutory ineligibility for the programs did not "frustrate the purpose of the sentence."

         ¶2 We conclude the circuit court applied the proper legal standard when determining whether the new factor of Yanda's statutory ineligibility for the CIP and the ERP justified modifying Yanda's sentence. Specifically, we conclude the court's remark-that Yanda's statutory ineligibility did not "frustrate the purpose" of his sentence-did not violate State v. Harbor, 2011 WI 28, 333 Wis.2d 53, 797 N.W.2d 828. Harbor made clear that there is no independent requirement that a defendant demonstrate that an alleged new factor frustrates the purpose of his or her sentence. Harbor did not, however, state that a circuit court cannot consider, during the exercise of its discretionary authority to determine whether a new factor justifies sentence modification, whether the new factor frustrates the purpose of the defendant's sentence. Accordingly, we hold that the court here did not erroneously exercise its discretion when, in determining whether the new factor of Yanda's statutory ineligibility justified sentence modification, it considered whether that factor frustrated the court's sentencing goals. We reject Yanda's argument to the contrary and affirm.

         BACKGROUND

         ¶3 Yanda and a friend were riding their motorcycles when they collided. Both riders were thrown from their motorcycles and sustained serious injuries. Yanda's friend told police that Yanda struck his motorcycle from behind while they were riding, causing him to lose control and veer into a ditch. Testing at the hospital revealed that the friend had a blood alcohol concentration of .02, while Yanda's blood alcohol concentration was .199.

         ¶4 Yanda was charged with injury by intoxicated use of a vehicle, injury by use of a vehicle with a prohibited alcohol content, operating a motor vehicle while revoked causing great bodily harm, operating a motor vehicle while intoxicated (OWI) as a fourth offense, and operating with a prohibited alcohol concentration (PAC) as a fourth offense. Pursuant to a plea agreement, Yanda pled no contest to a single count of causing injury by intoxicated use of a vehicle, a violation of Wis.Stat. § 940.25(1)(a). The remaining charges for injury by use of a vehicle with a prohibited alcohol concentration and operating a motor vehicle while revoked were dismissed and read in, while the OWI and PAC charges were dismissed outright. The parties agreed to a joint sentencing recommendation of fourteen months' initial confinement and twenty-four months' extended supervision.

         ¶5 Upon accepting Yanda's plea, the circuit court proceeded immediately to sentencing.[2] Among other things, the court noted the crime of conviction was a serious felony and it could impose a maximum sentence of seven and one-half years' initial confinement and five years' extended supervision. Yanda's character was a "significant concern" for the court, including Yanda having again been apprehended for driving while intoxicated after the motorcycle accident at issue. The court opined that Yanda did not "understand the risks that you pose to yourself and the risk that you pose to others," and it determined a substantial sentence was warranted to protect the public.

         ¶6 Given the foregoing considerations, the circuit court rejected the joint sentence recommendation. The court imposed an eight-year sentence consisting of four years' initial confinement and four years' extended supervision. The court then stated: "I'm going to deem you eligible for the Challenge Incarceration and Earned Release programs. My goal is that you participate in those programs because I think you desperately need those programs before you can return to our community." The court also discussed the conditions of extended supervision before adjourning the hearing.

         ¶7 Approximately eight months after sentencing, Yanda filed a motion for sentence modification. Yanda contended that because he was sentenced for a violation of Wis.Stat. ch. 940, he was statutorily ineligible to participate in either the CIP or the ERP. Yanda asserted that his ineligibility for those programs was a new factor bearing upon his sentence. Consequently, Yanda requested that the circuit court "modify his sentence so he can obtain treatment while on extended supervision."

         ¶8 The State opposed the motion at a motion hearing. The State conceded Yanda's statutory ineligibility for the programs was a new factor. The State then argued the circuit court should not order sentence modification because Yanda's ineligibility did not justify shortening his sentence merely so that he could obtain treatment. Yanda's attorney responded that the court should reduce Yanda's initial confinement to two years, which was longer than the parties' joint recommendation but more in line with the amount of initial confinement Yanda would have served had he been eligible for and completed the CIP and the ERP.

         ¶9 The circuit court denied Yanda's motion. It acknowledged it believed at the time of sentencing that Yanda was eligible for the CIP and the ERP, and it determined it was "more reasonable than not to conclude that the factor presented in the brief and argued is a new factor." Nonetheless, the court concluded that the new factor did not justify sentence modification. The court stated its principal concerns at sentencing were "the extremely dangerous behavior that the defendant had engaged in and continued to engage in by allegation[, h]is abysmal criminal record and the actions that caused injury to an identifiable ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.