Wisconsin Case Law

STATE v. HOLIFIELD, 2005AP0807-CR (Wis.Ct.App. 12-19-2006)
Wisconsin, District I. No. 2005AP0807-CR. Opinion Filed:
December 19, 2006.

APPEAL from a judgment and an order of the circuit court
for Milwaukee County: JEFFREY A. CONEN, Judge. Affirmed.



Sonja L. Holifield appeals from a judgment of conviction
for forgery, and from a postconviction order denying her
sentence modification motion. The issues are whether
Holifield’s mental health concerns and the trial court’s
erroneous impression that this forgery was related to
Holifield’s participation in a church festival constituted
new factors warranting sentence modification. We conclude
that none of these proffered factors frustrated the
purposes of the trial court’s sentence, which were
punishment, deterrence and community protection. Therefore,
we affirm.

¶ 2 Holifield entered a merchant’s print shop,
claiming to be associated with the “Victory Church.” While
in the shop, she took the purse of the merchant’s wife and
illegally charged items on a credit card found in the
victim’s purse.

¶ 3 Incident to a plea bargain, Holifield pled
guilty to forgery (uttering), in violation of WIS. STAT.
§ 943.38(2) (2001-02), in exchange for the State’s
sentencing recommendation of an unspecified period of
confinement to run concurrent to a sentence she was already
serving. Holifield requested a sentence in the range of
twenty-seven to thirty months, comprised of a fifteen-to
eighteen-month period of confinement followed by a
twelve-month period of extended supervision. The trial
court imposed a four-year consecutive sentence comprised of
two-year periods of confinement and extended supervision.

¶ 4 Holifield proffered two alleged “new” factors as
a basis for sentence modification: (1) her existing but
allegedly overlooked mental health problems and treatment
needs; and (2) the trial court’s erroneous belief that she
took advantage of the victim during a church festival,
which prompted it to classify this offense as intermediate
rather than mitigated, resulting in a lengthier period of
confinement. The trial court denied the motion, ruling
that: (1) Holifield’s denial of mental health problems when
asked by the trial court precluded sentence modification on
that basis; and (2) its alleged misunderstanding of the
forgery occurring during a church festival was “wholly
irrelevant” to the purpose of the sentence. It further
explained that “the purpose of the sentence was punishment,
deterrence, and the need for community protection given the
defendant’s extensive prior criminal history (twelve prior
convictions) and the fact that she was on correctional
supervision when she committed the present offense.”
Holifield appeals.

¶ 5 The defendant must clearly and convincingly
prove the existence of a new factor warranting sentence
modification. See State v. Franklin, 148 Wis. 2d 1, 8-10,
434 N.W.2d 609 (1989). A new factor 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

Id. at 8 (quoting Rosado v. State, 70 Wis. 2d 280, 288, 234
N.W.2d 69 (1975)). Once the defendant has established the
existence of a new factor, the trial court must determine
whether that “‘new factor’ — frustrates the purpose
of the original sentence.” State v. Michels, 150 Wis. 2d
94, 99, 441 N.W.2d 278 (Ct.App. 1989). Michels further
explains that “[t]here must be some connection between the
factor and the sentencing — something which strikes
at the very purpose for the sentence selected by the trial
court.” Id. “Whether a set of facts is a `new factor’ is a
question of law which we review without deference to the
trial court. Whether a new factor warrants a modification
of sentence rests within the trial court’s discretion.” Id.
at 97 (citation omitted).

¶ 6 At sentencing, the trial court asked Holifield
directly whether she had mental health issues. She
responded “[n]ot anymore I [do] not,” although she told the
trial court that she was drug and alcohol dependent at the
time of the offense and is “in a six months program now.”
Defense counsel did not correct or clarify any of
Holifield’s responses. At the guilty plea hearing however,
Holifield told the trial court what medications she was
taking, and that they did not affect her ability to
understand the proceedings or the ramifications of her
guilty plea. According to Holifield’s appellate counsel,
these medications were for schizophrenia and bipolar
disorder. Holifield was represented by the same defense
counsel at the plea hearing and at sentencing, and he did
not correct or clarify her responses despite his awareness
of her mental health issues.

¶ 7 In its postconviction order, the trial court
rejected Holifield’s mental health claims as new factors

because the court specifically asked the defendant
whether she had mental health issues during the sentencing
proceeding, and she herself stated that she did not. (Tr.
6/22/04, p. 10). Further, even though the information
currently provided to the court is submitted as a “new
factor,” the court finds that it would not have altered
the outcome [because it did not] frustrate[] the purpose
of the original sentence.

¶ 8 Holifield’s mental health problems and
treatment needs are not new factors unknown to the
defendant at the time of sentencing. First, Holifield
denied any such problems and her trial counsel did not
correct her denial. Second, her trial counsel told the
trial court in his sentencing presentation that Holifield
has been in a six-month drug treatment program for three
months, thus far. Whether her trial counsel should have
corrected Holifield’s denial, or whether her denial did not
warrant correction does not comport with Holifield’s mental
health problems and treatment needs being “unknowingly
overlooked.” Rosado, 70 Wis. 2d at 288. They were addressed
by the same lawyers and the same trial court judge at the
guilty plea hearing and at sentencing.[fn1]

¶ 9 The second proffered new factor is that the
trial court classified this offense as intermediate as
opposed to mitigated “because [it] believe[s] that this is
it, even though there is not abuse of a position of trust
or authority, this is something where [Holifield] did take
advantage of the merchant, [the trial court] believe[s]
that was involved in a church festival.” The trial court
rejected this challenge, explaining that

[it] did not misstate the complaint; it was aware that a
festival, or festivities, of some kind had transpired and
that the victims had opened their business to permit
people from the festival to use their facilities. Whether
it was a church festival or another type of festivity was
wholly irrelevant to the purpose of the sentence. The
fact is that the defendant took advantage of the
merchant’s hospitality by stealing a purse from the store.
The court’s misperception of the type of festivity that
occurred does not diminish the defendant’s actions and is
no reason to modify the sentence imposed or modify the
disposition to concurrent status.

¶ 10 Holifield’s purported involvement with the
church festival was slightly misunderstood, but the trial
court’s reason for classifying this offense as intermediate
rather than mitigated remained valid; Holifield was in the
victim’s printing shop, claiming to be associated with the
“Victory Church.” This particular merchant was very
civic-minded, an enthusiastic supporter of the West Allis
business community and its festivals, and thus, opened his
shop’s restrooms to the public during community festivals.
Whether Holifield was attending a church festival when she
entered his shop, or whether she identified herself as
associated with the “Victory Church” is a minor distinction.
The trial court classified this forgery as intermediate
rather than mitigated because Holifield identified herself
as affiliated with a church (implying what a “righteous”
person she was), to facilitate her victimization of a
civic-minded merchant.[fn2] The trial court found Holifield
using an ostensible church affiliation to victimize someone
as particularly distasteful, and considered that when
imposing her sentence.

¶ 11 Most notably, neither proffered new factor
“str[uc]k[] at the very purpose for the sentence selected
by the trial court.” Michels, 150 Wis. 2d at 99. The trial
court explained that its purposes were “punishment,
deterrence, and the need for community protection given the
defendant’s extensive prior criminal history (twelve prior
convictions) and the fact that she was on correctional
supervision when she committed the present offense.”
Although whether a defendant has clearly and convincingly
established the existence of a new factor is subject to our
independent review, it is difficult to imagine that mental
health issues (that were not unknown) and a marginal
distinction as to whether the forgery occurred during a
church festival, rather than by an ostensible member of the
“Victory Church” were critical in the trial court’s
sentencing decision. To reject the stated purposes of the
sentence — punishment, deterrence and community
protection (without affording deference to the trial
court’s determination) — for imposing a four-year
sentence on a forgerer, with a criminal history of twelve
prior convictions, who was on supervision when she
represented herself as affiliated with a church when she
committed this forgery, in favor of imposing a sentence
predicated on Holifield’s mental health issues and the
arguably misunderstood fact of her participating in a
church festival, as opposed to being affiliated with a
church, does not “strike[] at the very purpose for the
sentence selected.” Id. We independently conclude that
Holifield has not clearly and convincingly shown that
either of her proffered factors are “new.”

By the Court. — Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2003-04).

[fn1] In the context of her treatment needs, Holifield also
mentions that the trial court never addressed why the
sentence met the minimum amount of custody necessary to
achieve the sentencing considerations (“minimum custody
standard”). Preliminarily, we reject Holifield’s treatment
needs as constituting a new factor warranting sentence
modification. See State v. Michels, 150 Wis. 2d 94, 99, 441
N.W.2d 278 (Ct.App. 1989). More significantly, the trial
court addressed the minimum custody standard when it
imposed sentence. It evaluated Holifield’s risk assessment
predicated on this offense, her prior record, and the
lengthy duration of her criminal activity. It explained
that probation or a concurrent sentence to the sentence she
was presently serving for another forgery would unduly
depreciate the seriousness of this forgery. We conclude
that the trial court adequately considered why its two-year
period of confinement met the minimum custody standard.
State v. Ramuta, 2003 WI App 80, § 25, 261 Wis. 2d
784, 661 N.W.2d 483 (“no appellate-court-imposed tuner can
ever modulate with exacting precision the exercise of
sentencing discretion”).

[fn2] The trial court characterized the victims as merchants

tried to be very civic-minded, and open and generous, and
they were rewarded not just on this occasion, but on other
occasions, as well, with people like Ms. Holifield taking
advantage, in this case, taking a purse and cash and then
using the credit cards from the purse.

And it is very frustrating when a business owner is
trying to be civic-minded and then is taken advantage of
in this way.