State v. Robert M. Schueller, 2023AP1755-CR, 6/20/24, District IV (recommended for publication); case activity
In a decision recommended for publication, the court of appeals holds that advances in PTSD treatment constitute a new factor, where the sentencing court expressly relied on its understanding that Schueller’s PTSD was uncurable in determining his risk to the public and the term of his incarceration.
Schueller, a Vietnam War vet, was convicted of second-degree intentional homicide after he shot and killed a man following a bar fight. (Op., ¶3). Schueller’s PTSD diagnosis featured heavily at sentencing, with Schueller arguing that it mitigated his offense. (Op., ¶9). The PSI contained information from two expert reports, including how Schueller’s PTSD played into the situation and that Schueller had been “treatment compliant,” but there was no information presented at sentencing regarding treatment to reduce or resolve PTSD symptoms. (Op., ¶¶4-8, 10).
The circuit court began its sentencing discussion with the Gallion factors. In determining the sentence, the court focused primarily on the gravity of the offense and protection of the community as the most significant objectives. Schueller’s PTSD diagnosis figured prominently in the court’s consideration of both objectives and, as the court explained, the diagnosis ‘slice[d] both ways.'” (Op., ¶11). The court further explained that Schueller’s PTSD mitigated his behavior, but that it would also make him more dangerous to the public for the rest of his life as it could never be cured. (Op., ¶¶12-13). Therefore, due to the seriousness of the offense and the need to protect the public, the court sentenced Schueller to 40 years of imprisonment. (Op., ¶14).
Almost 20 years later, Schueller filed a postconviction motion to modify the sentence, alleging that the availability of new, highly effective PTSD treatments had rendered PTSD in veterans highly treatable or even curable, and arguing this warranted sentence modification. (Op., ¶15). The state filed a written response in opposition, and the circuit court issued a written decision denying Schueller’s motion without a hearing. (Op., ¶¶21-24).
Circuit courts have authority to modify a sentence when a defendant has demonstrated a “new factor.” State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. A “new factor” is “a fact or set of facts” that is “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.” Id., ¶40 (quoting Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69, 79 (1975)). To prevail on a motion for sentence modification based on a new factor, a defendant must demonstrate: (1) the existence of a new factor by clear and convincing evidence; and (2) that the new factor justifies modification of the sentence. Id., ¶¶36, 38.
The court of appeals explains that although a new factor motion is not a collateral postconviction challenge that is subject to Wis. Stat. § 974.06, the procedure is essentially the same. (Op., ¶28). Thus, if the nonconclusory facts alleged in the motion would constitute a new factor that might warrant sentence modification, the court should allow the state a chance to respond, and then promptly grant a hearing. (Op., ¶29). Appellate courts can consider whether the defendant presented a new factor as a matter of law, but not whether the new factor warrants sentence modification. (Op., ¶31).
Due to the specific facts of this case, namely the sentencing courts comments, the court of appeals agrees with Schueller that that the fact that PTSD in veterans is now highly treatable and even curable using new treatments is a new factor. In doing so, it distinguishes the line of cases cited by the state that have determined that a defendant’s post-sentencing response to treatment and rehabilitation is not a new factor warranting modification. This case is different because Schueller contends that one of the central premises of his sentence (that his PTSD is uncurable) is no longer correct. (Op., ¶¶40-42). The court of appeals also distinguishes the line of cases that address new research and expert opinions. (Op., ¶¶43-44). Finally, the court holds that Schueller is not required to prove he would benefit from the new treatments. (Op., ¶45).
The court therefore reverses and remands for further proceedings, explaining that the circuit court could either: (1) hold an evidentiary hearing and determine whether Schueller has met his burden of establishing a new factor by clear and convincing evidence (and if so, exercise its discretion as to whether the new factor warrants sentence modification); or (2) determine whether, in the exercise of its discretion, the new factor warrants sentence modification, and if it does not, the circuit court need not hold a hearing.
Appellate practitioners will want to read this opinion for additional insight on how to present similar arguments, as the court of appeals conducts a thorough analysis of the original information considered at sentencing, the sentencing court’s comments, and the research Schueller relies on in his postconviction motion.
