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COURT OF APPEALS
DECISION
DATED AND RELEASED
April 24, 1996
NOTICE
A party may file with the Supreme Court                                               This opinion is subject to further editing.
a petition to review an adverse decision                                              If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                            appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                   Official Reports.
No.   95-1497-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LARRY COOK,
Defendant-Appellant.
APPEAL from a judgment and an order of the circuit court for
Racine County:  DENNIS J. FLYNN, Judge.  Affirmed.
Before Anderson, P.J., Brown and Nettesheim, JJ.
PER CURIAM.      Larry   Cook   appeals   from   a   judgment
convicting him of possession of a controlled substance with intent to deliver in
violation of §§ 161.14(4)(t), 161.41(1m)(h)1 and 161.48, STATS., and sentencing
him to four years in prison.   He also appeals from an order denying his motion
for sentence  modification.    He  contends that  the  trial court  erred  when  it
determined that no new factor existed which could be considered for purposes
of sentence modification.   He also contends that the prosecutor breached a plea
agreement with him by opposing his motion for sentence modification.   We
reject both arguments and affirm the judgment and the order.




No.   95-1497-CR
Following entry of a no contest plea in this case, Cook testified
favorably to the State in an unrelated criminal case against another defendant
(the Britt case).   Cook contends that his cooperation with the prosecutors in that
case  was  anticipated  at  the  time  of  sentencing  in  this  case,  but  was  not
considered as a factor at sentencing because the Britt case had not yet been tried
and he had not yet testified.   He contends that cooperativeness is a relevant
factor to be considered at sentencing and that the information regarding his
testimony  therefore  constituted  a  new  factor  for  sentencing  purposes,
necessitating consideration by the trial court of whether his sentence should be
reduced.1
A trial court may in the exercise of its discretion modify a criminal
sentence upon a showing of a new factor.   State v. Michels, 150 Wis.2d 94, 96,
441 N.W.2d 278, 279 (Ct. App. 1989).   A defendant must establish the existence
of a new factor by clear and convincing evidence.   Id. at 97, 441 N.W.2d at 279.
However,  the  issue  of  whether  a  set  of  facts  constitutes  a  new  factor  for
sentencing  purposes presents  a  question of  law  which  we  review  without
deference to the trial court.  Id.
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
sentencing,  either  because  it  was  not  then  in  existence  or  because  it  was
unknowingly overlooked by all of the parties.   Id. at 96, 441 N.W.2d at 279.   In
addition, it must be an event or development which frustrates the purpose of
the original sentence.    Id. at  99,  441 N.W.2d at  280.    There must be some
connection between the factor and the sentencing which strikes at the very
purpose for the sentence selected by the trial court.  Id.
Even if we accept Cook's claim that the information regarding his
cooperation is "new" information, it is not highly relevant to his sentencing and
clearly does not strike at the very purpose for the sentence chosen by the trial
court.   A review of the sentencing transcript reveals that the primary factors
considered by the trial court in imposing sentence were Cook's rehabilitative
1   While Cook asserts that he has been harassed and threatened in prison because of his
testimony, he concedes that the threats and events in prison do not themselves constitute
new factors for purposes of sentence modification.
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No.   95-1497-CR
needs and the need to protect the public.  The trial court considered Cook's past
offenses while on probation and parole, his drug problems, and his lack of
employment and vocational skills.   It concluded that Cook had to be removed
from society until his drug abuse and vocational problems were dealt with and
imposed a sentence directly related to that goal.   There is no indication that it
based the sentence on conclusions regarding Cook's moral character or similar
factors as to which his cooperativeness would be relevant.   Consequently, as
determined by the trial court at the postconviction hearing, nothing in the
information regarding Cook's postsentencing testimony in the Britt case was
highly relevant to the sentence imposed by the trial court in this case or struck
at the very purpose of that sentence.   A new factor for purposes of sentence
modification therefore was not shown.
Cook next contends that in exchange for his testimony in the Britt
case, the prosecutor agreed to refrain from opposing any motion for sentence
modification brought by him.   He contends that the prosecutor breached that
agreement when he argued that Cook's cooperation in the Britt case did not
constitute a new factor for purposes of sentence modification.
Agreements  between  prosecutors  and  criminal  defendants  are
analogous to contracts and courts may draw upon contract law principles for
their interpretation. See State v. Windom, 169 Wis.2d 341, 348, 485 N.W.2d 832,
835  (Ct. App. 1992).   Wisconsin law provides that unambiguous contractual
language must be enforced as it is written.   Id.   When the parties to a written
agreement intend the writing to be the final expression of their agreement, the
terms of the writing may not be varied or contradicted by any prior written or
oral agreement in the absence of fraud, duress or mutual mistake.   Dairyland
Equip. Leasing v. Bohen, 94 Wis.2d 600, 607, 288 N.W.2d 852, 855 (1980).    Parol
evidence is inadmissible to vary or explain unambiguous written contractual
terms.   Schmitz v. Grudzinski, 141 Wis.2d 867, 872, 416 N.W.2d 639, 641 (Ct.
App. 1987).
The record includes a memorandum drafted by Cook's counsel
and approved by the district attorney's office dated April  6,  1994, one day
before Cook testified in the Britt trial.   It provided:   "This memorandum will set
forth the understanding and agreement negotiated for the truthful testimony of
Larry  Cook  as  a  prosecution  witness."      In  it,  the  prosecutor  agreed  that
immediately after Cook's testimony in the Britt trial, he would write to the
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No.   95-1497-CR
chairperson of the parole board explaining that Cook had cooperated with the
investigation and prosecution of Britt, had provided significant testimony on
the State's behalf in that case, and had testified at personal risk to himself.   The
document was signed by Cook's attorney and the prosecutor, and stated that
"[t]his memorandum correctly states our understanding."
Because this agreement, on its face, purports to set forth the final
and complete agreement between the State and Cook, it may not be altered by
parol evidence indicating that before its execution the prosecutor also told Cook
that he would not  oppose  a motion to modify  sentence.2    Moreover, it  is
undisputed  that  the  prosecutor  fulfilled  his  agreement  to  write  to  the
chairperson of the parole board.   Consequently, no basis exists to conclude that
the State breached any agreement with Cook or to disturb the trial court's order
denying postconviction relief.
By the Court.—Judgment and order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
2   According to Cook's testimony in the Britt trial and at the postconviction hearing, the
prosecutor made this representation to him in or about February 1994, after sentencing in
this case but before execution of the written memorandum concerning the agreement.
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