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State v. Arias-Cruz5/15/2002
. Alfonso Arias-Cruz appeals from the judgment of conviction entered against him and the order denying his motion for post-conviction relief. He argues on appeal that the circuit court erroneously exercised its discretion when it sentenced him and when it denied his motion for sentence modification. Because we conclude that the circuit court did not err, we affirm.
. Arias-Cruz was charged with twenty-two counts relating to a collision caused when he drove while intoxicated. After the collision, his blood alcohol level was .206% and he had traces of THC and cocaine in his blood. He was driving without a valid license and without insurance. The collision occurred when he drove through a stop sign and hit a car which then struck another car. One person was killed instantly, and others were injured. One of them, the 19-year-old daughter of the woman who was killed, suffered severe, permanent, and debilitating injuries. Arias-Cruz fled from the scene and was found hiding in a cornfield. He tried to conceal his identity by giving the police the wrong name.
. Arias-Cruz pled guilty to one count of homicide by the intoxicated use of a motor vehicle as a repeat offender, one count of hit-and-run homicide, two counts of operating while intoxicated causing great bodily harm as a repeat offender, two counts of hit and run causing great bodily harm, two counts of operating while intoxicated causing injury, and two counts of hit and run causing injury. Twelve additional counts were dismissed and read-in. The court sentenced him to consecutive sentences on each count for the maximum possible of eighty-five years in prison.
. After sentencing, Arias-Cruz moved the court for sentence modification alleging the existence of a new factor. Arias-Cruz argued that the court improperly relied on a 1987 case, and did not consider other cases when it sentenced him. When imposing sentence, the circuit court referred to a sentence imposed in Walworth county for homicide by the intoxicated use of a motor vehicle in 1987. The court noted that the maximum sentence allowed at that time-five years-was imposed. Arias-Cruz argued that the court did not consider other cases in Walworth county in which the maximum was not imposed, even once the maximum had been increased to forty years. He argued before the trial and again on appeal that the failure of the court to consider these other cases constitutes a new factor which warrants modification of his sentence. He also argues that his sentence is harsh and excessive.
. Sentence modification involves a two-step process in Wisconsin. First, the defendant must demonstrate that there is a new factor justifying a motion to modify a sentence. See State v. Hegwood, 113 Wis. 2d 544, 546, 335 N.W.2d 399 (1983). A new factor, as defined in Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), 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." Whether a fact or set of facts constitutes a new factor is a question of law which may be decided without deference to the lower court's determinations. Hegwood, 113 Wis. 2d at 547. If a defendant demonstrates the existence of a new factor, then the circuit court must undertake the second step in the modification process and determine whether the new factor justifies modification of the sentence. See id. at 546. This determination is committed to the circuit court's discretion and will be reviewed under an erroneous exercise of discretion standard. Id.
. We agree
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