recommended for publication in the official reports.
from a judgment and an order of the circuit court for Brown
County: No. 2016CF212, MARC A. HAMMER, Judge.
Stark, P.J., Hruz and Seidl, JJ.
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. 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."
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.
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.
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'
Upon accepting Yanda's plea, the circuit court proceeded
immediately to sentencing. 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.
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
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
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.
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 ...