NEUBAUER, P.J.
¶ 1 Anthony C. Boyden appeals from a trial court order denying his motion for sentence modification. Prior to his sentencing in 2004, Boyden initiated contact
¶ 2 In May 2004, Boyden was convicted of theft, operating a motor vehicle without consent and obstructing an officer after a jury trial. The charges stemmed from conduct occurring in November 2001.
¶ 3 Approximately one year after Boyden was sentenced, an investigator for the Special Investigations Unit of the City of Racine Police Department relied on information provided by Boyden in a search warrant application for locations belonging to Fouse. The warrant application explicitly identified Boyden as the source of that information. The search warrant was granted and the police recovered firearms, cocaine, drug paraphernalia, documents, gang-related materials, a computer and a bulletproof vest. Fouse was subsequently indicted on federal drug-trafficking charges, as were Raymond Garcia and Alvin Fouse, Jr. On November 27, 2007, Fouse was found guilty of two federal charges of conspiracy to distribute a controlled substance and the use of a firearm in the commission of drug trafficking; he was sentenced to a total of 27.5 years.
¶ 4 In November 2009, Boyden filed a motion to modify sentence on grounds that the substantial assistance he had provided law enforcement before being sentenced (overlooked by the parties at the time of the original sentencing hearing) and the ultimate fruits of that substantial assistance (not in existence at the time of the original sentencing hearing) constituted a new factor justifying sentence modification. On November 4, 2010, the postconviction court held a motion hearing and heard arguments. The court denied Boyden's motion and issued a written order on April 5, 2011. Boyden appeals.
¶ 5 A trial court has discretion to modify a sentence if the defendant presents
¶ 6 Whether something constitutes a new factor is a question of law we review de novo, without deference to the trial court; however, whether a new factor, if there is one, warrants sentence modification is left to the trial court's discretion. State v. Torres, 2003 WI App 199, ¶ 6, 267 Wis.2d 213, 670 N.W.2d 400.
¶ 7 Here, Boyden's motion for sentence modification alleged the existence of a new factor justifying sentence modification, namely "the significant material assistance he provided to federal and state law enforcement as to the activities of one Alvin Fouse III (A.K.A. `Stone') and the workings of his criminal enterprise." Boyden argued that (1) he had provided substantial assistance to law enforcement before he was sentenced, but that assistance was overlooked at the sentencing hearing and (2) his substantial assistance yielded substantial fruits, but only after he was sentenced, and thus those facts were not in existence at the time of the sentencing hearing. Boyden's motion detailed his contact with law enforcement authorities and included the affidavit of an assistant United States attorney, which also detailed Boyden's assistance to law enforcement and its impact on the federal prosecution of Fouse.
¶ 8 In its written decision denying Boyden's motion for sentence modification, the court observed,
¶ 9 Boyden raises two primary challenges to the postconviction court's denial of his request for sentence modification. First he contends that the postconviction court erred in finding that his substantial assistance was not overlooked at sentencing.
¶ 10 As to Boyden's first challenge, we have reviewed the record, including the transcript of the sentencing hearing. We conclude that Boyden failed to demonstrate by clear and convincing evidence that his assistance to law enforcement was unknowingly overlooked by all of the parties. While no mention is made of the assistance at the sentencing hearing, the postconviction court (presided over by the same judge as the original sentencing court) stated that "everybody knew Boyden was cooperating with the federal authorities." The State acknowledges that the prosecutor knew that Boyden was cooperating with federal authorities but did not deem that cooperation relevant to Boyden's sentencing on state charges. The postconviction court determined that Boyden's cooperation was not overlooked by his attorneys, and Boyden presented no evidence to the contrary. Thus, we reject Boyden's contention that his substantial assistance to law enforcement is a "new factor" because it was unknowingly overlooked at sentencing.
¶ 11 We next turn to Boyden's second challenge that the fruits of a defendant's substantial assistance to law enforcement, revealed only after the defendant has been sentenced, can constitute a "new factor" for purposes of a sentence modification request. The postconviction court did not reach this issue. We conclude that when fruits of a defendant's substantial presentence assistance to law enforcement authorities are not known until after sentencing, those fruits, if highly relevant to the imposition of the sentence in light of the factors set forth in Doe, can constitute a new factor.
¶ 12 In Doe, 280 Wis.2d 731, ¶ 1, 697 N.W.2d 101, this court recognized that "a defendant's substantial and important assistance to law enforcement after sentencing may constitute a new factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted." The Doe court adopted the federal sentencing guideline provisions concerning sentence reductions for substantial assistance given to authorities before sentencing. Id., ¶ 9. The Doe court noted that while the sentencing guidelines were intended to affect the imposition of the original sentence, they were "quite helpful in determining whether the post-sentencing assistance constitutes a new factor for the purposes of a postconviction motion for sentence modification." Id.
¶ 13 The federal sentencing guideline provisions instruct the court to consider the following when determining an appropriate sentence reduction:
Id. The Doe court concluded that "the broader rule of permitting the trial court, in appropriate cases, to modify a sentence after substantial assistance has been given
¶ 14 Boyden's motion for sentence modification addresses in detail the factors set forth in Doe. It describes the assistance Boyden provided to law enforcement after he voluntarily contacted a Racine county assistant district attorney. It sets forth the nature of the information Boyden provided, the basis of his knowledge, and the extent of his efforts (including accompanying law enforcement as they drove in and around Racine to identify locations used by Fouse and his associates). The information is supported by an affidavit submitted by the assistant United States attorney who worked with Boyden and was involved in the investigation of Fouse. The U.S. attorney advised that "Boyden did voluntarily cooperate with Federal and State Investigators to provide material information that assisted law enforcement." He characterized the assistance as "timely" and the information as "significant and useful," and advised that the information was used to obtain search warrants to search properties that yielded evidence that assisted in Fouse's conviction.
¶ 15 The State contends that Doe does not apply to presentence assistance, the fruits of which are not realized until after sentencing. Rather, the State argues that Doe governs only postsentence assistance to law enforcement. In support, the State cites to the public policy considerations underlying the Doe court's decision:
Id., ¶ 10. The Doe court's discussion applies with equal force to presentence assistance, the results of which and details about are not known until after the defendant is sentenced. To borrow the logic of Doe, it would serve as a disincentive to limit sentence credit to only those whose cooperation produces results prior to sentencing.
¶ 16 Here, the postconviction court stated that it was "satisfied that Boyden did assist federal authorities in the prosecution of Fouse in the Eastern District federal case during 2006 and 2007; and probably cooperated with law enforcement since 2000." The court further noted that while everyone knew at the time of sentencing that Boyden was cooperating, "[i]t does make sense that Boyden would not necessarily present such cooperation until after the suspect in the federal case was tried and convicted." We likewise believe it reasonable that Boyden would seek further consideration of his assistance at this time,
¶ 17 We conclude that the postsentence fruits of a defendant's substantial presentence assistance to law enforcement authorities may constitute a new factor. We adopt the Doe factors for the court's use in assessing whether postsentence fruits constitute a new factor warranting sentence modification because it is highly relevant to the imposition of the sentence.
¶ 18 We conclude that when fruits of a defendant's substantial presentence assistance to law enforcement authorities are not known until after sentencing, those fruits, if highly relevant to the imposition of the sentence in light of the Doe factors, can constitute a new factor. We therefore reverse and remand for the postconviction court's consideration of Boyden's motion in light of our decision and the factors set forth in Doe.
Order reversed and cause remanded with directions.