Preview:

COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
April 13, 2000
                                                                                                                                                    A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                    petition  to  review  an  adverse  decision  by  the
                                                                                      Cornelia G. Clark
                                                                                                                                                    Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                                      Clerk, Court of Appeals
                                                                                                                                                    RULE 809.62.
                                                                                      of Wisconsin
No.                                                                                   97-2729-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
WUA XIONG,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an order  of  the circuit court for
Monroe County:   MICHAEL J. McALPINE, Judge.   Affirmed.
Before Dykman, P.J., Vergeront and Roggensack, JJ.
¶1                                                                                    PER CURIAM.    Wua Xiong appeals from a judgment convicting
him on three felony charges, and from an order denying his postconviction motion
for a reduced sentence.   The issue is whether Xiong proved a new factor that
entitled him to reconsideration of his sentence.   We conclude that he did not, and
therefore affirm.




No. 97-2729-CR
¶2                                                                                      In 1994, at the age of fourteen, Xiong participated with several older
individuals in the attempted armed robbery of a gun dealership.   Xiong entered the
store armed, and exchanged fire with the owner.   He was subsequently waived into
adult  court  on  a  charge  of  attempted  first-degree  intentional  homicide  with
weapons and gang enhancers, and for two other felonies and a misdemeanor.
Pursuant to a plea agreement, he entered an Alford plea to the attempted homicide
charge, and guilty pleas to the other felonies.    The  misdemeanor charge was
dismissed.
¶3                                                                                      At sentencing, the trial court was aware that Xiong lived in a Thai
refugee camp until he was twelve, spoke very little English and came from a
broken home.   The court also knew that there was evidence Xiong shot at the store
owner with intent to kill him, that he was involved with gangs, that he had been
convicted of numerous juvenile offenses before the attempted homicide, and that
he committed the present offenses after running away from a group home.
¶4                                                                                      The Presentence Investigation Report author recommended prison
sentences totaling forty years.   Defense counsel recommended a twelve-year term,
arguing that Xiong was an impressionable, disadvantaged boy induced into the
crime by his older accomplices, who received prison terms of fifteen and twenty
years, respectively.    The prosecutor also asked the court for relative leniency,
citing the arguably greater culpability of his older accomplices and his age and
disadvantaged background.
¶5                                                                                      The court sentenced Xiong to a thirty-five-year prison term on the
attempted homicide charge, with consecutive probation on the other felonies.   The
court stressed the gravity of Xiong’s crimes, the need to protect society from
future, similar acts, the impact of the homicide attempt on the victim, and Xiong’s
2




No. 97-2729-CR
record of committing prior, serious offenses, and his failure to benefit from his
prior involvement in the juvenile justice system.   The court expressly discounted
Xiong’s age as a factor, and further stressed that his criminal acts were the product
of free choice.
¶6                                                                                       Postconviction counsel was subsequently appointed for Xiong.   Her
concerns about his competency to proceed led to four psychological evaluations
and  an  ultimate  trial  court  finding  of  competency.    However,  the  evaluators
generally agreed that Xiong was borderline mentally retarded.    Three included
comments  in  their  evaluations  indicating  that  Xiong’s  mental  limitations  and
difficulties in adjusting to American culture made him passive and dependent on
others, and more vulnerable to influence or manipulation.
¶7                                                                                       Arguing that the psychological evaluations constituted a new factor,
counsel moved to reduce Xiong’s sentence.   The trial court concluded that the
“precise  diagnosis”  of  Xiong’s  limitations  were  relevant  to  the  sentencing
decision, but did not meet the necessary standard of high relevance.   The court
noted that the information about Xiong’s limitations was available at the time of
sentencing, including the following excerpt from the PSI report:
The defendant speaks very little English and finds that to be
a barrier in his ability to function independently in society.
The  interpreter                                                                         …  indicates  that  during  his  experience
interpreting  for  Wua  during  this  legal  process,  he  has
noticed  that  Wua  sometimes  has  trouble  understanding
things even in his own language and often times uses  “I
don’t  know”  even  though  it  doesn’t  appear  that  he  has
understood the question.   He also indicates that he has no
idea about the legal system.
This appeal challenges the court’s conclusion that the evaluations are not “highly
relevant” to the sentence.
3




No. 97-2729-CR
¶8                                                                                        The presence of a “new factor” allows the trial court to exercise its
discretion to resentence a defendant.   See State v. Kluck, 210 Wis. 2d 1, 6-7, 563
N.W.2d 468 (1997).   Whether the defendant has shown the existence of a new
factor is a question of law we decide de novo.   See State v. Franklin, 148 Wis. 2d
1, 8, 434 N.W.2d 609 (1989).   A new factor is information highly relevant to the
sentence, but unknown at the time of sentencing because it did not then exist or
was unknowingly overlooked.   See id.   To justify a modified sentence, the new
factor must operate to frustrate the sentencing court’s intent in passing sentence.
See State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (1989).
¶9                                                                                        The information in the psychological evaluations was not highly
relevant to the sentence.   The trial court imposed a sentence that was expressly
intended to demonstrate the gravity of the crime and to protect the public from
future, similar acts.   It also reflected the court’s view of Xiong’s character, based
on his substantial juvenile record and continued criminal activity.   The fact that
Xiong was intellectually limited and impressionable was of little relevance to
these concerns.
¶10    Additionally, Xiong’s limitations were not unknown to the court.
The quoted excerpt from the PSI report plainly and necessarily suggests Xiong’s
intellectual  limitations,  under  any  reasonable  view.     Xiong’s  difficulties  in
adjusting to American culture were extensively discussed at sentencing by the
prosecutor, defense counsel and the court.   The trial court correctly described the
evaluations as more precise information of the same type, as opposed to new
information.
By the Court.—Judgment and order affirmed.
4




No. 97-2729-CR
                 This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)        (b)5.
5

Download 13036.pdf

Wisconsin Law