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State v. Harty11/3/1999
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats.
APPEAL from a judgment and an order of the circuit court for Waukesha County: ROGER P. MURPHY, Judge. Affirmed.
Scott C. Harty challenges the circuit court's denial of his motion for modification of sentence on the basis of "new factors" or, in the alternative, on the basis that the sentence was unduly harsh and unconscionable. The refusal of the Milwaukee county jail to afford Harty "Huber privileges" because he faced a consecutive sentence in Waukesha county is not a "new factor." And, considering that the policy of this state is to remove drunk drivers from the highways in an attempt to stem the heavy toll drunk drivers exact upon society, a sentence of eleven months for a fifth drunk driving conviction is not unduly harsh or unconscionable. Therefore, we affirm.
. Harty and the State entered into a plea agreement to dispose of the three counts arising from a drunk driving arrest. Under the agreement, Harty would enter a plea of "guilty" to the charge of fifth offense operating a motor vehicle while under the influence in violation of §§ 346.63(1)(a), 346.65(2) and 343.30(1q)(b), Stats. The State agreed to dismiss the charge of operating after revocation in violation of § 343.44(1), Stats., but use it as a "read in" and dismiss the charge of operating a motor vehicle with a prohibited alcohol concentration contrary to § 346.63(1)(b). The State also retained the right to recommend a sentence of eleven months in the county jail. The circuit court accepted Harty's plea and found him guilty. The only portion of the circuit court's sentence that is relevant to this appeal is the term of eleven months in the Waukesha county jail to be served consecutive to a sentence he was then serving in Milwaukee county.
. Shortly after the sentencing, Harty filed a motion to modify his sentence. First, he asserted that there was a "new factor" justifying a modification. Harty maintained that the Milwaukee county jail denied him "work release privileges" because there was a hold placed upon him by Waukesha county and the Waukesha county jail would deny "work release privileges" because he did not have a job when he would be transferred from the Milwaukee county jail. Second, he contended that because he was without a job the eleven-month sentence made it impossible for him to pay his fines.
. The circuit court denied his motion. The court stated that at the sentencing Harty requested the sentence be made concurrent to the Milwaukee county sentence so that he would have "work release privileges" and could seek employment; therefore, the court reasoned there was no "new factor" justifying a modification of the sentence. The court also held that the eleven-month sentence was justified because this was Harty's fifth conviction, he also was operating after revocation and his blood alcohol concentration was 0.217%.
. Whether Harty has demonstrated the existence of a "new factor" is a question of law which we decide de novo. See State v. Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609, 611 (1989). A "new factor" is defined 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
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