State v. Stibbe

1

State of Wisconsin, Plaintiff-Respondent, v. Benjamin R. Stibbe, Defendant-Appellant.

Nos. 2022AP497, 2022AP510

Court of Appeals of Wisconsin, District II

March 29, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (2021-22).

APPEAL from orders of the circuit court for Ozaukee County Cir. Ct. Nos. 2005CF295 2006CF171: SANDRA JO GIERNOTH, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Benjamin R. Stibbe appeals pro se from orders denying his postconviction motions seeking modification of his sentences based on a new factor. Stibbe contends the circuit court erred in denying without a hearing his request to modify his sentences based on assistance he provided to law enforcement in 2002, which assistance he claims resulted in the arrests and convictions of multiple drug dealers. For the following reasons, we affirm.

Background

¶2 In Ozaukee County Case Nos. 2005CF295 and 2006CF171, Stibbe entered no-contest pleas to a total of four counts of first-degree reckless homicide, drug delivery. The complaints alleged that Stibbe purchased heroin, gave it to the victims and the victims subsequently died. In 2006, the circuit court sentenced Stibbe to eighteen years of initial confinement followed by fifteen years of extended supervision on the first case, and in 2007, the court sentenced him to a concurrent sentence of twenty-five years of initial confinement, followed by fifteen years of extended supervision on the second case.

¶3 In 2021, Stibbe filed motions to modify his sentences asserting that his "substantial assistance to law enforcement" in 2002 is a "new factor" warranting sentence modification. Stibbe acknowledged in his motion that his assistance "was in existence" when he was sentenced in 2006 and 2007, but he asserted it "was overlooked by all the parties." The circuit court "assum[ed] without deciding" that Stibbe's assistance was unknowingly overlooked at the time of his sentencings, but it nonetheless denied his motions on other grounds. Stibbe appeals.

Discussion

¶4 Although "[a circuit] court cannot base a sentence modification on reflection and second thoughts alone," "it may base a sentence modification upon the defendant's showing of 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 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." Rosado v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69 (1975). The defendant has the burden to establish the existence of a new factor by clear and convincing evidence. State v. Samsa, 2015 WI.App. 6, ¶14, 359 Wis.2d 580, 859 N.W.2d 149 (2014). Whether a fact or set of facts constitutes a new factor is a question of law we review de novo. Id.

¶5 Here, the circuit court denied Stibbe's motion for sentence modification without holding an evidentiary hearing. When a defendant moves for sentence modification based on a new factor, the circuit court must hold a hearing only if "the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief." State v. Allen, 2004 WI 106 ¶¶9, 13, 274 Wis.2d 568, 682 N.W.2d 433. This is a question of law we review independently. Id. ¶9. "However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief the circuit court has the discretion to grant or deny a hearing." Id. Discretionary decisions are reviewed under the deferential erroneous exercise of discretion standard. Id. ¶6 While Stibbe primarily relies on two cases in support of his assertion that his assistance to law enforcement is a "new factor," both are inapposite.^[1] In State v. Doe, 2005 WI.App. 68, 280 Wis.2d 731, 697 N.W.2d 101, we 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." Id., ¶1 (emphasis added). In State v. Boyden, 2012 WI.App. 38, ¶12, 340 Wis.2d 155, 814 N.W.2d 505, we expanded Doe slightly to include the situation where a defendant provides such assistance prior to sentencing but the "fruits" of that assistance are realized after sentencing. Boyden, 340 Wis.2d 155, ¶17 ("[T]he postsentence fruits of a defendant's substantial presentence assistance to law enforcement authorities may constitute a new factor.").

¶7 As indicated, Stibbe bears the burden of showing a "new factor" by clear and convincing evidence. His appeal does not even get out of the gate as neither his assistance to law enforcement (Doe) nor the "fruits" of that assistance (Boyden) occurred after his 2006/2007 sentencings.^[2] His affidavit plainly indicates he provided the assistance at issue to law enforcement in 2002-years before his sentencings in these cases-and Wisconsin's Consolidated Court Automation Programs (CCAP) records, of which we may take judicial notice, see Kirk v. Credit Acceptance Corp., 2013 WI.App. 32, ¶5 n.1, 346 Wis.2d 635, 829 N.W.2d 522, together with Stibbe's averments in his affidavit indicate the fruits of his assistance had all occurred by 2004.

¶8 To provide more specifics, Stibbe represents that in 2002 he pointed out to law enforcement officers a Milwaukee "drug house" from which he regularly purchased heroin, made a purchase of heroin at the house in cooperation with and under the supervision of law enforcement, and immediately thereafter "vouched" to the drug dealers for an undercover law enforcement officer who then made a heroin purchase himself, or so it appeared to Stibbe, while Stibbe waited outside in a car the officer had just exited. Stibbe avers that dealers at the house were "busted within a matter of weeks" of his assistance, and he attributes this to his cooperation with law enforcement. Stibbe more specifically states the assistance he provided to law enforcement "led to the arrest, successful prosecution, conviction, and imprisonment" of Neal Mosley and Eric Bennett, as well as Timothy Milton and Demario Mosley, from whom Stibbe avers he regularly purchased heroin.

¶9 Each of these individuals pled guilty in connection with these charges and were sentenced to prison, with Bennett Milton and Demario Mosley being sentenced in 2003 and Neal Mosley being sentenced in 2004. Thus, Stibbe's assistance and the fruits thereof all occurred prior to his 2006/2007 sentencings. Moreover, he concedes, as he must, that prior to his sentencings, he was aware of the assistance he provided; yet, for whatever reason (fear of retaliation perhaps), he apparently chose not to inform the circuit court of this assistance. And, even though he does not appear to explicitly concede he was also aware of the fruits of his assistance prior to his sentencings, neither does he direct us to anywhere in the record where he asserted he was unaware of said fruits at the time of his sentencings, and we are unable to find such an assertion. He needed to make such an assertion because had he been afforded an evidentiary hearing in this case, he would have had to establish by clear and convincing evidence that the sentencing courts were not aware of the fruits of his assistance "because … it was unknowingly overlooked by all of the parties," including Stibbe. See State v. Crockett, 2001 WI.App. 235, ¶14, 248 Wis.2d 120, 635 N.W.2d 673 (emphasis added) ("Although the … court may have ...