text:
    State of Wisconsin, Plaintiff-Respondent, v. Jose A. Trujillo, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 2003AP1463-CR.

      Oral argument December 7, 2004.

      Decided April 21, 2005.

    2005 WI 45
    (Also reported in 694 N.W.2d 933.)

      For the defendant-appellant-petitioner there were briefs and oral argument by Suzanne L. Hagopian, assistant state public defender.
    For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   N. PATRICK CROOKS, J.

¶ 1. Petitioner Jose Trujillo (Trujillo) appeals an order of the court of appeals, affirming the circuit court's denial of his motion for sentence modification under Wis. Stat. § 809.30(2)(h) (2001-02). The Kenosha County Circuit Court, Judge S. Michael Wilk presiding, held that a reduction in the maximum penalty for the crime of burglary, which resulted from the truth-in-sentencing provisions of 2001 Wis. Act 109 (TIS-II), does not amount to a new factor in regard to a sentence modification motion, where the original sentence was imposed in accord with 1997 Wis. Act 283 (TIS-I). Trujillo appeals this decision because he claims that the reduction of the maximum penalty permitted by TIS-II, from the sentence imposed on him on the basis of a higher permitted maximum in TIS-I, is highly relevant to the imposition of his original sentence and, thus, a new factor.

¶ 2. We agree with the State of Wisconsin (State) that TIS-II's reduced maximum confinement for the same TIS-I felony does not constitute a new factor when a defendant moves for the modification of a sentence imposed under TIS-I. The legislature has not mandated the retroactive application of the reduced penalties, but has provided an adequate remedy by enacting Wis. Stat. § 973.195. We conclude that although Trujillo's initial confinement time for burglary exceeded the TIS-II maximum, this change was not highly relevant to the imposition of his TIS-I sentence. In so holding, "we continue to employ existing 'new factor' jurisprudence for TIS-I sentences," State v. Crochiere, 2004 WI 78, ¶ 2, 273 Wis. 2d 57, 681 N.W.2d 524, and therefore we reaffirm rather than overrule this court's decision in State v. Hegwood, 113 Wis. 2d 544, 335 N.W.2d 399 (1983), and the court of appeals' decisions in State v. Torres, 2003 WI App 199, 267 Wis. 2d 213, 670 N.W.2d 400, and State v. Longmire, 2004 WI App 90, 272 Wis. 2d 759, 681 N.W.2d 534. Accordingly, we affirm the order of the court of appeals.

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¶ 3. Wisconsin shifted its sentencing scheme from indeterminate to determinate when TIS-I went into effect on December 31, 1999. Wis. Stat. §§ 973.01(1) and (2). The use of indeterminate sentencing, prior to TIS-I, guaranteed that a convicted defendant would serve for a stated number of years, but that the parole board would determine how much of that sentence was served in prison. State v. Gallion, 2004 WI 42, ¶ 28, 270 Wis. 2d 535, 678 N.W.2d 197.

¶ 4. TIS-I was the first of two truth-in-sentencing acts passed by the Wisconsin Legislature. The second act, TIS-II, became effective on February 1, 2003, and has modified TIS-I. Under TIS-I, "a circuit court was required to impose a bifurcated sentence consisting of a term of confinement in prison followed by a term of extended supervision whenever it sentence [d] a person to 'imprisonment in the Wisconsin state prisons.'" State v. Cole, 2003 WI 59, ¶ 16, 262 Wis. 2d 167, 663 N.W.2d 700 (quoting Wis. Stat. § 973.0K1)). Additionally, TIS-I provided that those serving a bifurcated sentence were not eligible for parole, and eliminated the possibility for a reduction in confinement time for good behavior. Wis. Stat. §§ 973.01(4) and (6). "With limited exceptions, § 973.01 removed all statutory provisions that might serve to reduce an inmate's confinement based on the inmate's rehabilitation." State v. Champion, 2002 WI App 267, ¶ 7, 258 Wis. 2d 781, 654 N.W.2d 242 (footnote omitted).

¶ 5. After TIS-I was drafted, the legislature established the Criminal Penalties Study Committee (CPSC) to make recommendations and to propose additional TIS legislation. In order to give the CPSC enough time to complete its task, the legislature created an 18-month window between the date the legislature passed TIS-I and the date it was to go into effect. Cole, 262 Wis. 2d 167, ¶ 41; see also Michael B. Brennan, Thomas J. Hammer, Donald V Latorraca, Fully Imple- meriting Truth-in-Sentencing, Wisconsin Lawyer, Nov. 2002, at 11; see also Wisconsin Legislative Council Information Memorandum 98-11, LRB-3154/1 (June 24,1998). Although the CPSC finished its report on the necessary supplementation of TIS-I, the legislature did not enact these suggestions until after TIS-I became effective. Cole, 262 Wis. 2d 167, ¶ 41 (citing Brennan, Fully Implementing Truth-in-Sentencing, at 12).

¶ 6. TIS-II adopted many of the proposals from the CPSC report. Notably, TIS-II included the recommendation that "provisions in criminal statutes establishing minimum sentences (presumptive or otherwise) or mandatory consecutive sentences be repealed." Criminal Penalties Study Comm., Final Report on 1997 Wisconsin Act 283, Truth In Sentencing, at 63 (Aug. 31, 1999). CPSC stated that the reason for the change was "to allow courts 'maximum sentencing discretion to deal with the multitude of offenders who commit crimes and the multitude of ways in which they do so.'" Cole, 262 Wis. 2d 167, ¶ 42 (citing Criminal Penalties Study Comm., at 63). The effect of TIS-II was that many of the statutory classifications of felonies were revised in order to reduce the maximum sentences. The result caused by the delay between the enactment of TIS-I and TIS-II was that defendants convicted of felonies between December 31, 1999, and February 1, 2003, generally serve longer periods of confinement than the maximum provided for in TIS-II.

¶ 7. On April 9, 2002, Trujillo was charged with four crimes: second degree sexual assault of an unconscious victim, fourth-degree sexual assault, criminal trespass to a dwelling, and disorderly conduct. Pursuant to a plea agreement, Trujillo pled guilty to the crimes of burglary, a Class C felony, and fourth-degree sexual assault, a Class A misdemeanor, on July 22, 2002. The circuit court sentenced Trujillo to a term of eight years of confinement and five years of extended supervision for the felony burglary conviction, and a consecutive incarceration term of nine months for the misdemeanor sexual assault.

¶ 8. Before TIS-I, burglary was a Class C felony with a maximum penalty of 10 years imprisonment. Under TIS-I, burglary remained a Class C felony, but the maximum penalty was increased to 15 years of imprisonment, of which up to ten years could be ordered as initial confinement. TIS-II made burglary a Class F felony with a maximum penalty of 12.5 years. Under this penalty scheme, the term of initial confinement may not exceed seven years and six months. Thus, under TIS-I, Trujillo was sentenced to six months more initial confinement than was possible for the same offense under TIS-II.

¶ 9. Trujillo brought a postconviction motion on April 8, 2003, seeking modification of his burglary sentence pursuant to Wis. Stat. § 809.30(2)(h). At a hearing for such relief on May 14, 2003, the circuit court denied the motion, and determined that this court's decision in Hegwood controlled, and that "the change in the statute does not effect the penalties created by the former statute unless the legislature specifically and expressly abrogates the penalties and indicated that it would relate back in some fashion." Trujillo appealed that decision to the court of appeals, where the decision of the circuit court was summarily affirmed. In a brief order, the court of appeals held that, based upon its prior decision in Torres, "the reduction in the criminal penalty for an offense affected by the truth-in-sentencing provisions contained in TIS-II, does not constitute a new factor...." We accepted review and now affirm.

II

¶ 10. It is well established that a circuit court has inherent authority to modify a sentence. Hegwood, 113 Wis. 2d at 546. This inherent power can he used to prevent the continuation of unjust sentences and must be exercised within defined parameters. Crochiere, 273 Wis. 2d 57, ¶¶ 11-12. One such parameter to modify a sentence is through the showing of a new factor. Id., ¶ 13.

¶ 11. Whether a new factor exists is a question of law, which we review de novo. State v. Lechner, 217 Wis. 2d 392, 424, 576 N.W.2d 912 (1998). "The existence of a new factor does not, however, automatically entitle the defendant to relief." Hegwood, 113 Wis. 2d at 546. The question of whether the sentence warrants modification is left to the discretion of the circuit court. Id. We will not overrule that decision unless the court's discretion was erroneously exercised. Lechner, 217 Wis. 2d at 424.

¶ 12. We also address issues regarding the interpretation of TIS legislation and Wis. Stat. § 973.195. Our analysis of such issues also involves a question of law which we review de novo. In Meriter Hospital Inc. v. Dane County, 2004 WI 145, 277 Wis. 2d 1, 69 N.W.2d 627, we stated:

The interpretation of a statute presents a question of law, which we review de novo. State v. Williams, 198 Wis. 2d 516, 525, 544 N.W.2d 406 (1996). Although we consider this question independent of the decisions of the circuit court and the court of appeals, we nevertheless benefit from their analyses. Meyer v. Sch. Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999).
When interpreting a statute, the primary objective "is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 662, 681 N.W.2d 110. Knowing this, the court's analysis should begin with the plain language of the statutory text. Id., ¶ 45. If the language of the statute is clear on its face, the court should apply the statute using the common and generally accepted meanings of the terms. Fox v. Catholic Knights Ins. Soc., 2003 WI 87, ¶ 19, 263 Wis. 2d 207, 219, 665 N.W.2d 181. With an unambiguous statute, the court need not consult extrinsic sources of interpretation. Kalal, 271 Wis. 2d 633, ¶ 46.

Meriter, 277 Wis. 2d 1, ¶¶ 12-13.

¶ 13. We first address the issue of new factors. We define a new factor as "an event or development which frustrates the purpose of the original sentence," Champion, 258 Wis. 2d 781, ¶ 4, and recognize it to be more than a change in circumstances since the time of sentencing. Crochiere, 273 Wis. 2d 57, ¶ 14. Specifically, we have held:

[T]he phrase "new factor" refers to 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) (emphasis added). As previously noted, to qualify for a sentence modification based on a new factor, the defendant must show: (1) a new factor exists; and (2) the new factor warrants modification of his sentence. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

¶ 14. Case law governing sentence modification based on a new factor is well settled. Champion, 258 Wis. 2d 781, ¶ 4. Wisconsin courts have reached the conclusion that many of the circumstances presented were not sufficient to establish a new factor. See Crochiere, 273 Wis. 2d 57, ¶ 15. While there have been some cases where new factors have been identified, there have been no cases involving TIS legislation where the reduction in penalties has been considered highly relevant to the imposition of sentence and, thus, a new factor.

¶ 15. With the above principles in mind, we turn to Trujillo's argument. He contends that a post-sentencing reduction in the maximum penalty for a TIS-II crime should be considered a new factor by the circuit court for the purpose of a TIS-I sentence modification motion. Trujillo argues that the penalties under TIS-I did not adequately measure the legislature's intent as to the gravity and appropriate maximum sentence for a crime. He claims that the legislature's new assessment of crimes in TIS-II should be considered highly relevant to the imposition of his TIS-I sentence and, therefore, considered a new factor. As a result, Trujillo asks this court to distinguish our holding in Hegwood and overrule the court of appeals' decision in Torres.

¶ 16. The State, conversely, argues that the new factor analyses in Hegwood, Torres, and Longmire are directly applicable. Based on these cases, the State argues that it is clearly established that the reduction in maximum confinement cannot he considered a new factor by the circuit court for the purpose of sentence modification.

¶ 17. We agree with the State's reliance on these holdings. First, in Hegwood, which predates TIS legislation, the defendant moved for a sentence modification of his 25-year sentence for a rape conviction and ten-year sentence for a conviction for armed robbery. When the legislature repealed the rape statute and created a sexual assault statute that redefined the crime and lessened the maximum penalty to 20 years, Hegwood argued that it constituted a new factor that the circuit court should consider. The circuit court and court of appeals denied his claim.

¶ 18. We decided in Hegwood that "[t]he reduction in the maximum penalty... is not highly relevant to the imposition of sentence and, therefore, does not constitute a 'new factor.'" Hegwood, 113 Wis. 2d at 547. We also cited Wis. Stat. § 990.04 for the proposition that "the repeal of a statute shall not remit, defeat, or impair any criminal liability for offenses committed prior thereto unless such criminal liability is specifically and expressly remitted or abrogated by the repealing statute." Id. Because the defendant's criminal liability under the old statute was not expressly remitted by the statute's repeal, we held that "retroactive application of the reduced maximum penalty for sexual assault under the new statute is precluded." Id. at 548.

¶ 19. In Torres, the court of appeals applied the rationale from Hegwood, and extended it to cases involving TIS legislation. There, the defendant moved for sentence modification of his TIS-I conviction based on the post-sentencing reduction of the maximum penalty in TIS-II. Torres was convicted of operating a motor vehicle without the owner's consent, a Class E felony, in violation of Wis. Stat. § 943.23(3). He was sentenced to two years of initial confinement and two years of extended supervision. Under TIS-I, the crime had a maximum initial confinement time of two years. When he brought a motion for sentence modification after the enactment of TIS-II, however, the same crime had been changed to a Class I felony, and the maximum initial confinement was reduced to one year and six months.

¶ 20. In reaching its conclusion, the court of appeals determined that the holding of Hegwood applied to the circumstances presented in Torres. In regard to TIS legislation, the court of appeals held that "a change in the classification of a crime, which would result in a shorter sentence if the defendant were convicted under the new classification, is not a 'new factor' under our traditional model for sentence modification." Torres, 267 Wis. 2d 213, ¶ 7. In doing so, the court of appeals refused to distinguish Hegwood. It held: "Torres is in the same situation as Hegwood — there is no mandatory retroactive application of the lower penalty — so the Hegwood rule applies and the change in penalty is not a new factor." Id., ¶ 12.

¶ 21. We are not persuaded by Trujillo's attempt to convince us to distinguish Hegwood and overrule Torres. We agree with the court of appeals in Torres that the holding in Hegwood should be applied to sentence modification motions involving TIS legislation. Trujillo does not present a sufficient reason as to why the legislature's two-stage implementation of TIS should be considered a new factor, especially since we have never held that the reduction of maximum penalties was a new factor in any other case, where the legislature has not mandated the retroactive application of the lower penalties.

¶ 22. We also conclude that Trujillo's argument, that we should hold that there is a new factor here, is not consistent with the plain language used by the legislature in the TIS-II enactments. If the legislature wanted the reduced maximum penalties to be considered in TIS-I sentence modification hearings, it could have provided that the reduced penalties in TIS-II shall have retroactive application. In effect, "the legislature had an opportunity to make the change retroactive, but chose not to do so." Gallion, 270 Wis. 2d 535, ¶ 74. We agree with the State that if the legislature had intended the reduced maximum penalties of TIS-II to apply to crimes committed under TIS-I, it could have chosen not to increase the maximum confinement terms in TIS-I, or simply not implement TIS-I at all. Alternatively, the legislature could have inserted the TIS-II confinement terms into TIS-I, before TIS-I went into effect.

¶ 23. The court of appeals in Torres carefully reviewed the TIS legislation. The court noted that the reduced maximum penalties in TIS-II were not explicitly made applicable to TIS-I defendants in the act, thus indicating that it was giving deference to the legislature's authority to determine criminal behavior and the range of possible penalties. See Jeffrey Kassel, Sentence Modification by Wisconsin Trial Courts, 1985 Wis. L. Rev. 195, 216, discussing the Hegwood decision. "This deference may explain why the court interpreted the legislative intent behind section 990.04 of the Wisconsin statutes to prohibit not only a mandatory retroactive application of [a] reduction in maximum penalty, but to also prohibit a discretionary retroactive application." Id. (footnote omitted). We hold, in line with Hegwood and Torres, that the omission by the legislature of retroactive language in enacting TIS-II is significant, and we accord deference to that legislative decision.

¶ 24. The court of appeals in Torres also referenced another reason for rejecting the defendant's modification motion based on the claimed new factor. It stated: "Wisconsin Stat. § 973.195 reflects the legislature's intent to create a separate and specific statutory procedure for requesting a sentence reduction ... whenever 'a change in law or procedure related to sentencing... effective after the inmate was sentenced that would have resulted in a shorter term of confinement' is the basis for the modification." Torres, 267 Wis. 2d 213, ¶ 9 (footnote omitted). .

¶ 25. Trujillo argues that Wis. Stat. § 973.195 applies to TIS-I offenders, but that the statute is not an adequate remedy, and that the court of appeals' decision in Torres was erroneous. We hold that the plain language of § 973.195 supports our determination here that new factor motions do not provide an appropriate method for dealing with TIS-II's reduction in maximum penalties. We agree with the court of appeals which stated in Torres that § 973.195 is a remedy "which provides the procedure for judicial review of a sentence when the law relating to sentencing changes," id., ¶ 7, and we hold that it is an adequate remedy to address the circumstances resulting from the reduction in penalties from TIS-I to TIS-II.

¶ 26. The court of appeals has also held that the goal of TIS legislation is to create certainty of confinement at the time a sentence is imposed. Champion, 258 Wis. 2d 781, ¶ 13. In Champion, the defendant was sentenced under TIS-I and brought a sentence modification motion based on the claimed new factor that her rehabilitation was complete, and that with the elimination of parole there was no one else but the court to consider her early rehabilitation. The court, in reviewing the legislative history of TIS-I, held that the legislature did not intend such a remedy. Id. Instead, "the legislature intended that truth-in-sentencing create certainty as to the duration of confinement at the time a sentence is imposed, something fundamentally inconsistent with the open-ended availability of sentence modification based on post-sentencing factors...." Id. In Crochiere, we discussed the reasoning in Champion with approval and concluded that we will "continue to employ existing 'new factor' jurisprudence for TIS-I sentences . .." while leaving open questions unique to TIS-I not yet identified. Crochiere, 273 Wis. 2d 57, ¶¶ 2, 18-19.

¶ 27. We now turn to the court of appeals' recent decision in Longmire. There, the defendant brought a postconviction motion for sentence modification after being sentenced under TIS-I for felony theft by a contractor, a Class C felony punishable by no more than $2500 and a maximum bifurcated sentence of 15 years. Longmire was sentenced to 14 months of confinement, ten years of extended supervision, and restitution. Because TIS-II made Longmire's crime a Class G felony, punishable by a maximum bifurcated sentence of only ten years, Longmire argued that both the reduction in maximum penalty and the rationale accompanying it, constituted new factors for the circuit court to consider. The court of appeals concluded:

[J]ust as a change in the classification and maximum sentence of a crime is not a new factor for traditional sentence modification purposes, neither is the rationale underlying the change. The study committee's rationale for recommending to the legislature that certain maximum terms of extended supervision be reduced is not a "fact or set of facts" relevant to the imposition of Longmire's sentence. Rather, it is an opinion on an aspect of correctional policy held by a committee created to conduct a study and make recommendations regarding the implementation of the Truth in Sentencing Laws in Wisconsin.

Longmire, 272 Wis. 2d 759, ¶ 46 (citing Criminal Penalties Study Comm., at 1). We agree with the court of appeals that the rationale for post-sentencing changes by the legislature does not constitute a new factor for the purpose of sentence modification. Id.

¶ 28. We are also concerned about the possibility of opening the floodgates if we hold that the reduction in maximum sentences for TIS-II crimes constitutes a new factor. Between the time that TIS-I was enacted on December 31, 1999, and the date of TIS-II's implementation on February 1, 2003, more than 10,700 adults were admitted into Wisconsin's prison system with one or more TIS-I sentences. See Wisconsin Department of Corrections, Truth in Sentencing, at 5 (July 22, 2004). If we agree with Trujillo's new factor analysis, there is certainly the potential that most TIS-I offenders could seek a sentence modification on similar grounds. There could be many defendants, like Trujillo, that have a TIS-I initial confinement term that exceeds the TIS-II maximum. Additionally, there could be sentence modification motions from other inmates whose TIS-I confinement term did not exceed the TIS-II maximum. An inmate could argue, for example, that if the sentencing court thought his crime required a sentence in the "middle range", that the same court may have applied a lesser confinement term if it were applying the TIS-II "middle range" rather than that of TIS-I.

¶ 29. We reiterate that the decision to modify a sentence upon the finding of a new factor is left to the sound discretion of the circuit court. Hegwood, 113 Wis. 2d at 546. We again note, however, that "[i]f a circuit court concludes that the facts shown are insufficient to constitute a new factor, as a matter of law, it need go no further in its analysis to decide the inmate's motion." Crochiere, 273 Wis. 2d 57, ¶ 24. In this case, the circuit court explicitly stated that Trujillo did not prove the existence of a new factor. In doing so, the circuit court did not have to go any further in denying Trujillo's motion for sentence modification.

HH hH hH

¶ 30. In sum, we agree with the State that TIS-II's reduced maximum confinement time for the same TIS-I felony does not constitute a new factor when a defendant moves for modification of a sentence imposed under TIS-I. The legislature has not mandated the retroactive application of the reduced penalties, but has provided an adequate remedy by enacting Wis. Stat. § 973.195. We conclude that although Trujillo's initial confinement time for burglary exceeded the TIS-II maximum, this change was not highly relevant to the imposition of his TIS-I sentence. In so holding, "we continue to employ existing 'new factor' jurisprudence for TIS-I sentences," Crochiere, 273 Wis. 2d 57, ¶ 2, and therefore we reaffirm rather than overrule this court's decision in Hegwood, and the court of appeals' decisions in Torres and Longmire. Accordingly, we affirm the order of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

SHIRLEY S. ABRAHAMSON, C.J.

(dissenting) .

¶ 31. Trujillo is asking the circuit court to consider whether his sentence pronounced under TIS-I, which exceeds the TIS-II maximum penalty, might, in the discretion of the circuit court, be modified in light of the reduced maximum penalties enacted under TIS-II. The circuit court refused to even consider the request. The majority opinion affirms the circuit court. I disagree. I would hold that a penalty reduction in TIS-II below the sentence imposed under TIS-I is a new factor that permits, but does not require, the circuit court to modify the sentence.

¶ 32. The Wisconsin legislature substantially changed sentencing in Wisconsin with the enactment of the Truth in Sentencing statutes. Under indeterminate sentencing, which was in existence in this state for many years, a circuit court pronounced sentence and the parole board generally determined how much of the sentence was served in prison. With the advent of Truth in Sentencing, a circuit court still pronounces a sentence, but parole is no longer available for those serving a prison sentence.

¶ 33. The effective date of the first Truth in Sentencing statute (TIS-I) was delayed to allow legislative change. Truth in Sentencing remained a legislative work in progress. Unfortunately, the legislature delayed enacting TIS-II. TIS-I went into effect December 31, 1999, even though everyone acknowledges that it was an unfinished work.

¶ 34. TIS-II, effective February 1, 2003, contained, among other provisions, a significant reduction of the maximum penalties for many crimes.

¶ 35. Legislative penalties strongly influence a circuit court's sentencing decision; the statutory penalty is the legislature's gauge of the seriousness of the crime, and the legislature's gauge of the seriousness of the crime influences the sentence imposed by the court.

¶ 36. That persons sentenced under TIS-I could, and did, receive harsher penalties than those sentenced for the same crime under prior or subsequent laws is not in dispute. For example, Trujillo (as well as others who are governed by TIS-I) was sentenced to a greater prison term than those who committed the same crime but were sentenced under indeterminate sentencing or TIS-II. Under the basic principle of equal justice under law, it seems unfair to sentence persons to higher sentences pursuant to TIS-I during a three-year interim period of an unprecedented fluctuation in penalties, just because the legislature unfortunately (and unexpectedly) delayed enacting TIS-II and TIS-II's reduced penalties.

¶ 37. A circuit court has inherent power to modify a sentence. The legislature may create means and methods for modification of sentences, but, as the majority opinion states, legislative enactments do not affect a court's inherent power to modify a sentence. This court, not the legislature, sets the boundaries of the circuit court's inherent power to modify sentences.

¶ 38. A circuit court's inherent authority to modify a sentence is a discretionary power exercised within boundaries set by this court. This power is exercised to prevent the continuation of unjust sentences or sentences that are unduly harsh or unconscionable. A circuit court may correct formal or clerical errors or an illegal or void sentence. A circuit court has discretionary authority to modify a sentence on the basis of a "new factor."

¶ 39. A legislative change in the penalty was not a new factor under indeterminate sentencing. The court so decided in State v. Hegwood, 113 Wis. 2d 544, 335 N.W.2d 399 (1983), over my dissent. The Hegwood interpretation of a circuit court's inherent power to modify sentences might have made sense under indeterminate sentencing. In indeterminate sentencing, the executive branch could consider the legislative reduction of penalties and could release prisoners before they served their full time.

¶ 40. Hegwood does not, however, make sense for sentencing under TIS-I when the legislature intended to reduce the maximum penalties (but did not), and additionally when the executive branch lost its power to modify prison sentences through parole.

¶ 41. There is no need, however, to overrule Heg-wood. The Hegwood rule about a new factor can continue to apply to indeterminate sentences. Hegwood should not, however, be extended to TIS-I. I agree with Trujillo that Hegwood does not control the instant case because Hegwood presented a completely different fact situation.

¶ 42. Wisconsin is in a new sentencing era. This case demonstrates the court's need to reexamine a circuit court's inherent power to modify sentences. The court got it right in State v. Crochiere, 2004 WI 78, ¶ 26, 273 Wis. 2d 57, 681 N.W.2d 524: "[TJhere may be additional new factors unique to TIS-I that we have not previously identified."

¶ 43. The reduction of the maximum penalties in TIS-II is, I conclude, a new factor unique to TIS-I, because the legislature did not intend TIS-I to go into effect until TIS-II was adopted with reduced penalties. The undisputed history of TIS-I and TIS-II demonstrates that the reduction of the penalties was highly relevant to the legislature and that the reduction was not known at the time of Trujillo's original sentencing.

¶ 44. A new factor does not automatically entitle a prisoner to modification of a sentence. Whether the sentence warrants modification is left to the discretion of the circuit court. I conclude that a circuit court should, in its inherent power and discretion, determine whether Trujillo's TIS-I sentence should be modified in light of TIS-II reduction of penalty.

¶ 45. For the reasons set forth, I dissent.

¶ 46. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

LOUIS B. BUTLER, JR., J.

{dissenting).

¶ 47. The majority concludes that TIS-II's reduced maximum confinement for the same TIS-I felony does not constitute a new factor when a defendant moves for a modification of a sentence imposed under TIS-I. The majority reasons that the legislature has not mandated the retroactive application of the reduced penalties, but has instead provided an adequate remedy by enacting Wis. Stat. § 973.195. Accordingly, the majority reaffirms this court's decision in State v. Hegwood, 113 Wis. 2d 544, 335 N.W.2d 399 (1983). Because Hegwood was wrongly decided, and because the change in the penalty structure from TIS-I to TIS-II could constitute a new factor, I respectfully dissent.

¶ 48. This court in Hayes v. State, 46 Wis. 2d 93, 102, 175 N.W.2d 625 (1970), held that sound public policy favors the exercise by a trial court of its power to amend, modify, and correct a judgment of sentencing, even though the service of the sentence has been commenced. The trial court's authority to change and modify its judgments was based on its "inherent power." Id. at 101. The court noted that the trial court should correct an unjust sentence within reasonable limits. Id. at 101-03. The inherent power to modify a sentence "must be exercised within the limits of sound sentencing discretion." Id. at 106.

¶ 49. The reasonable limits specified in Hayes were clarified by this court in State v. Foellmi, 57 Wis. 2d 572, 205 N.W.2d 144 (1973), when this court adopted the American Bar Association's Standards Relating to Sentencing Alternatives and Procedures, Part VI, § 6.1 (approved draft, 1968). That section provided:

6.1 Authority to reduce: general.
(a) It may be appropriate to authorize the sentencing court to reduce or modify a sentence within a specified time after its imposition or the final resolution of an appeal if new factors bearing on the sentence are made known. . ..

Foellmi, 57 Wis. 2d at 581. Thus, this court made clear that any modification of sentence could not be based on reflection alone but must be based on a new factor brought to the trial court's attention. Id. at 582.

¶ 50. In Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), this court defined "new factor" as "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 in existence, it was unknowingly overlooked by all of the parties." A knowing failure to provide the information does not constitute a new factor. Id. at 288.

¶ 51. In Hegwood, this court decided that a reduction in the maximum statutory penalty is not a new factor justifying a modification of sentence. The court's analysis, however, was incorrect. The court based its decision on Moore v. State, 83 Wis. 2d 285, 310-311, 265 N.W.2d 540 (1978), which correctly determined that Wis. Stat. § 990.04 precludes an automatic reduction of a sentence because of the change in the maximum penalty for a particular offense. See Hegwood, 113 Wis. 2d at 548. The court then jumped to the conclusion that since an automatic reduction was not authorized under the statute, "the reduction in the maximum penalty ... shall not operate to reduce the sentence for a previously committed offense." Id. But in Hegwood, the defendant was not asking for automatic reduction of his sentence. He was arguing that the change in penalty structure constituted a new factor under Rosado. Hegwood, 113 Wis. 2d at 549 (Abrahamson, J., dissenting). By missing the point of the defendant's argument, the court arrived at an erroneous conclusion. I would not follow Hegwood's precedent.

¶ 52. Instead, I would conclude that whether a change in the statutory maximum constituted a new factor depends on whether the trial court determined that the change was "highly relevant" to the imposition of the sentence. If it was not, then no new factor would be shown. If it was, however, then the court would have to determine whether relief was appropriate. There is no logical reason or overriding public policy concern that justifies restricting the trial courts' inherent power in this fashion. As the court stated in Hayes, "[i]t is more important to be able to settle a matter right with a little uncertainty than to settle it wrong irrevocably." Hayes, 46 Wis. 2d at 105.

¶ 53. The Truth in Sentencing bill was originally planned as one package. Michael B. Brennan, et al., Fully Implementing Truth-in-Sentencing, 75 Wisconsin Lawyer No. 11, 10-12 (Nov. 2002). TIS-I went into effect on December 31, 1999. Unfortunately, TIS-II did not become effective until February 1, 2003. TIS was not designed to increase the penalties for criminal offenses. See id. at 10; Thomas J. Hammer, The Long and Arduous Journey to Truth-in-Sentencing in Wisconsin, 15 Fed. Sent. R. 15 (2002); see also State of Wisconsin Criminal Penalties Study Committee Final Report, at 22 (August 31, 1999), available at http://www.doa.state.wi.us/docs_view2.asp?docid=42 (last visited Apr. 14, 2005). Yet, during the TIS-I phase, penalties were indeed increased so that the period of initial confinement under TIS-I would approximate the maximum penalties under the old indeterminate structure. See Legislative Reference Bureau Analysis of 1997 Assembly Bill 351 at 4-5. When TIS-II took effect, penalties were reduced to their appropriate level, based in large part on the work of the Criminal Penalties Study Committee (CPSC). Brennan, 75 Wisconsin Lawyer No. 11, at 12. Defendants who were sentenced under TIS-I were thus subject to greater maximum penalties than those sentenced under either indeterminate sentencing laws or TIS-II, even though the parties agree that the purposes in adopting TIS did not include increasing the penalty structure for criminal offenses.

¶ 54. People sentenced under TIS-I are not entitled to an automatic reduction of their sentences. See Moore, 83 Wis. 2d at 310-11. This is also true for people who were previously sentenced under indeterminate sentencing laws. If the trial court in a TIS-I case determines, however, that the change in the penalty structure created by the passage of TIS-II is highly relevant to the imposition of a particular TIS-I sentence, then that court should, as part of its inherent power, have the opportunity to decide whether relief should be granted. If, on the other hand, the trial court were to conclude that the change in penalties was not highly relevant to the imposition of a particular sentence, then it is not a new factor and not a basis for sentence modification. I would overrule Hegwood and its progeny, and reverse and remand this action to the trial court for a determination of whether the change in penalty structure constitutes a new factor in this proceeding.

¶ 55. For the foregoing reasons, I respectfully dissent.

       Unless otherwise indicated all references to Wisconsin Statutes are to the 2001-02 edition.

       Wisconsin Stat. § 973.195 states, in relevant part:
      (lg) Definition. In this section, "applicable percentage" means 85% for a Class C to E felony and 75% for a Class F to I felony.
      (lr) Confinement in Prison, (a) An inmate who is serving a sentence imposed under s. 973.01 for a crime other than a Class B felony may petition the sentencing court to adjust the sentence if the inmate has served at least the applicable percentage of the term of confinement in prison portion of the sentence. If an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this section.

        (b) Any of the following is ground for a petition under par. (a):
      1. The inmate's conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs since he or she was sentenced.
      3. A change in law or procedure related to sentencing or revocation of extended supervision effective after the inmate was sentenced that would have resulted in a shorter term of confinement in prison or, if the inmate was returned to prison upon revocation of extended supervision, a shorter period of confinement in prison upon revocation, if the change had been applicable when the inmate was sentenced.
      4. The inmate is subject to a sentence of confinement in another state or the inmate is in the United States illegally and may be deported.
      5. Sentence adjustment is otherwise in the interests of justice.
      (c) Upon receipt of a petition filed under par. (a), the sentencing court may deny the petition or hold the petition for further consideration. If the court holds the petition for further consideration, the court shall notify the district attorney of the inmate's petition. If the district attorney objects to adjustment of the inmate's sentence within 45 days of receiving notification under this paragraph, the court shall deny the inmate's petition.
      (g) Except as provided under par. (h), the only sentence adjustments that a court may make under this subsection are as follows:
      1. If the inmate is serving the term of confinement in prison portion of the sentence, a reduction in the term of confinement in prison by the amount of time remaining in the term of confinement in prison portion of the sentence, less up to 30 days, and a corresponding increase in the term of extended supervision.
      2. If the inmate is confined in prison upon revocation of extended supervision, a reduction in the amount of time remaining in the period of confinement in prison imposed upon revocation, less than up to 30 days, and a corresponding increase in the term of extended supervision.

       According to Wis. Stat. § 302.11(1), an inmate would be entitled to release after serving two-thirds of his or her sentence. Furthermore, Wis. Stat. § 304.06(l)(b) states that an inmate becomes eligible for parole after serving one-quarter of his or her sentence.

       Wisconsin Stat. § 973.01(1) provides, in relevant part:
      Bifurcated Sentence Required. Except as provided in sub. (3), whenever a court sentences a person to imprisonment in the Wisconsin state prisons for a felony committed on or after December 31, 1999, the court shall impose a bifurcated sentence that consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113.

       Wisconsin Stat. § 973.01(4) states, in relevant part: "No good time; extension or reduction of term of imprisonment. A person sentenced to a bifurcated sentence under sub. (1) shall serve the term of confinement in prison portion of the sentence without reduction for good behavior...."
      Wisconsin Stat. § 973.01(6) states: "No Parole. A person serving a bifurcated sentence imposed under sub. (1) is not eligible for release on parole under that sentence."

       In his postconviction motion, Trujillo asked the circuit court to modify only the confinement time of his burglary sentence. Therefore, we do not address his confinement time for sexual assault.

        State v. Torres, 2003 WI App 199, 267 Wis. 2d 213, 670 N.W.2d 400, raised the same issue that was before the court of appeals in this case — whether a reduction in the maximum penalty for a TIS-II crime constitutes a new factor for the circuit court to consider during a hearing on a sentence modification motion concerning a TIS-I crime. The court of appeals did not issue its order in this case until after we decided on the petition for review in Torres. Upon our denial of review in Torres, the court of appeals in this case affirmed the circuit court's denial of sentence modification.

       Additional parameters found by this court:" '[A] court has the power to correct formal or clerical errors or an illegal or a void sentence at any time.' Also, a court has the inherent authority to modify a sentence if ... the sentence is 'unduly harsh or unconscionable.'" State v. Crochiere, 2004 WI 78, ¶ 12, 273 Wis. 2d 57, 681 N.W.2d 524 (citations omitted).

       Courts in Wisconsin have not found a new factor to be any of the following:
      [A]n inmate's desire to testify at a post-conviction hearing regarding his side of the story, Rosado, 70 Wis. 2d at 288; the introduction of sentencing guidelines recommending a different sentence than the one a convicted defendant received, State v. Macemon, 113 Wis. 2d 662, 669, 336 N.W.2d 402 (1983); disparity in sentencing between co-defendants, State v. Toliver, 187 Wis. 2d 346, 361-62, 523 N.W.2d 113 (Ct. App. 1994); an inmate's progress or rehabilitation while incarcerated, State v. Kluck, 210 Wis. 2d 1, 7-8, 563 N.W.2d 468 (1997) and State v. Krueger, 119 Wis. 2d 327, 335, 351 N.W.2d 738 (Ct. App. 1984); an inmate's response to treatment while incarcerated, State v. Prince, 147 Wis. 2d 134, 136-37, 432 N.W.2d 646 (Ct. App. 1988); an inmate's shorter-than-normal life expectancy, State v. Ramuta, 2003 WI App 80, ¶ 21, 261 Wis. 2d 784, 661 N.W.2d 483; or an inmate's post-sentencing declining health, Michels, 150 Wis. 2d at 99-100 [State v. Michels, 150 Wis. 2d 94, 99-100, N.W.2d 278 (Ct. App. 1989)].

        State v. Crochiere, 273 Wis. 2d 57, ¶ 15 (footnote omitted).

       New factors for sentence modification have been identified in the following situations:
      [T]he untreatable nature of an inmate's mental condition is such that it "frustrated" a primary condition of his sentence, State v. Sepulveda, 119 Wis. 2d 546, 560-61, 350 N.W.2d 96 (1984); a potential conflict of interest of the mental health professional who conducted the psychological assessment of a convicted defendant for the sentencing court, State v. Stafford, 2003 WI App 138, ¶ 17, 265 Wis. 2d 886, 667 N.W.2d 370; and a convicted defendant's post-sentencing voluntary submission to revocation of his parole based on erroneous advice from his probation agent, State v. Norton, 2001 WI App 245, ¶ 16, 248 Wis. 2d 162, 635 N.W.2d 656.

        Id., ¶ 16.

       Justice Butler's dissent wants us to go one step further and overrule Hegwood, Torres, and Longmire. We hold, however, that Hegwood and its progeny were correctly decided. We therefore apply the holding in those cases to the issues before us.

       Wisconsin Stat. § 990.04 states, in relevant part: "Actions pending not defeated by repeal of statute. The repeal of a statute hereafter shall not remit, defeat or impair any civil or criminal liability for offenses committed, penalties or forfeitures incurred or rights of action accrued under such statute before the repeal thereof...."

       We emphasize that, by according deference to the legislative decisions in regard to TIS-I, TIS-II, and Wis. Stat. § 973.195, this court is not recognizing any restriction on the inherent power of the court, but rather we conclude that the legislative decisions do not result in a new factor.

        State v. Gallion, 2004 WI 42, ¶ 28, 270 Wis. 2d 535, 678 N.W.2d 197.

       Majority op., ¶¶ 4-6; Justice Butler's dissent, ¶ 53. For discussions of TIS-I, TIS-II, and the transition, see, e.g., State of Wisconsin Criminal Penalties Study Committee Final Report (Aug. 31, 1999) (available at http://www.doa.state.wi.us/secy/ index.asp); Thomas J. Hammer, The Long and Arduous Journey to Truth-in-Sentencing in Wisconsin, 15 Fed. Sent. R. 15 (2002); Michael B. Brennan et al., Fully Implementing Truth-in-Sentencing, 75 Wis. Lawyer 10 (Nov. 2000); Michael B. Brennan & Donald V. Latorraca, Truth-in-Sentencing Comes to Wisconsin, 73 Wis. Lawyer 16 (May 2000); Legislative Reference Bureau Analysis of 1997 Assembly Bill 351; Wisconsin Legislative Council Staff, Information Memorandum 98-11 (June 24, 1998).

        Hayes v. State, 46 Wis. 2d 93, 101, 175 N.W.2d 625 (1970), overruled in part by State v. Taylor, 60 Wis. 2d 506, 210 N.W.2d 873 (1973).

        See, e.g., Wis. Stat. §§ 973.19, .195.

       Majority op., ¶ 23 n.13.

        State v. Franklin, 148 Wis. 2d 1, 9, 434 N.W.2d 609 (1989).

        Cresci v. State, 89 Wis. 2d 495, 504, 278 N.W.2d 850 (1979).

        Hayes v. State, 46 Wis. 2d 93, 101, 175 N.W.2d 625 (1970).

       "In conclusion, we reaffirm that circuit courts have inherent authority to modify sentences on the basis of a new factor. Additionally, we continue to employ existing 'new factor' jurisprudence, while noting there may be additional factors unique to TIS-I that we have not previously identified." State v. Crochiere, 2004 WI 78, ¶ 26, 273 Wis. 2d 57, 681 N.W.2d 524.

        Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).

        State v. Torres, 2003 WI App 199, 267 Wis. 2d 213, 670 N.W.2d 400, and State v. Longmire, 2004 WI App 90, 72 Wis. 2d 759, 681 N.W.2d 534, holding otherwise, should be overruled.

       Chief Justice Hallows believed that requiring new factors as a prerequisite to modifying a sentence is too restrictive of the power of a judge and a step backward in the criminal process. State v. Foellmi, 57 Wis. 2d 572, 585-86, 205 N.W.2d 144 (1973) (Hallows, C.J. concurring). According to Chief Justice Hallows, on reconsideration, if the trial court judge felt that he or she had been too harsh or had failed to give due weight to mitigating factors which should have been properly taken into account, then the judge should have the power to re-examine the sentence and modify it accordingly. Id. at 586.
      I respectfully disagree with Chief Justice Hallows, as I fully embrace the new factor concept as stated in Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975). His sentiment is correct, however, when applied to Hegwood.

       The second prong of the Rosado analysis would already be met in this situation, as a new penalty structure would not be in existence until after the effective date of the new law, after the sentence was imposed.

        See, e.g., State v. Longmire, 2004 WI App 90, 272 Wis. 2d 759, 681 N.W.2d 534 and State v. Torres, 2003 WI App 199, 267 Wis. 2d 213, 670 N.W.2d 400.


source: Caselaw Access Project

author: PATIENCE DRAKE ROGGENSACK, J. SHIRLEY S. ABRAHAMSON, C.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael D. Sykes, Defendant-Appellant-Petitioner.

    Supreme Court

      No. 2003AP1234-CR.

      Oral argument November 12, 2004.

      Decided April 22, 2005.

    2005 WI 48
    (Also reported in 695 N.W.2d 277.)

      For the defendant-appellant-petitioner there were briefs by Jeffrey J. De La Rosa and Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn, and oral argument by Jeffrey J. De La Rosa.

    For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

       Motion for Reconsideration denied 6-23-2005.

   PATIENCE DRAKE ROGGENSACK, J.

¶ 1. Michael D. Sykes requests review of an unpublished decision of the court of appeals. The court of appeals affirmed an order of the circuit court for Washington County, Judge David C. Resheske, presiding, that denied his motion to suppress evidence of drug-related offenses. Sykes argues that his wallet was Searched in violation of the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution because the officer did not have probable cause to arrest him for the drug-related offenses prior to the search.

¶ 2. We conclude that the officer had probable cause to arrest Sykes for criminal trespass prior to the search of Sykes's wallet. We also conclude that whether the officer intended to arrest Sykes for criminal trespass prior to the search, or whether Sykes was actually arrested for and charged with criminal trespass, are not dispositive of whether the search was lawful. Rather, the search was lawful because law enforcement had probable cause to arrest Sykes for a crime prior to the search and also arrested Sykes immediately after the search, although for a different crime. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 3. Sykes was charged with possession of cocaine with intent to deliver, second or subsequent offense, contrary to Wis. Stat. §§ 961.41(lm)(cm)3 and 961.48(1) (2001-02). Sykes moved to suppress the evidence.

¶ 4. His arrest arose out of a search that was conducted in the apartment of Stacy Hudson. At the hearing on Sykes's suppression motion, Hudson, William Downham, Officer Kenneth Kluck and Lieutenant Thomas Horvath testified. Hudson said she had leased an apartment in a building owned by Downham in Hartford, Wisconsin, but that she frequently stayed with friends and relatives rather than in her apartment. On one occasion when Hudson returned to her apartment, she found Sykes and his girlfriend inside. She said that Sykes refused to leave, that she never gave him permission to stay in her apartment, and that she did not want him living there.

¶ 5. Downham said that he learned there were people in the apartment whom Hudson did not want there and also that there was suspicious activity in the apartment, so he obtained Hudson's permission to enter the apartment and change the locks. At Downham's request, Kluck went to the apartment with Downham and a locksmith.

¶ 6. Kluck had been sent by Horvath, then a patrol sergeant. Horvath said he knew that Downham had requested law enforcement presence during the change of the apartment's locks for security reasons. Horvath also knew, and had informed Kluck, that unwanted individuals may be in the apartment and that if that was the case, Kluck should contact Horvath for more officers.

¶ 7. When Kluck and Downham knocked on the door, no one answered. When the locksmith started attempting to open the locks, a woman opened the door from the inside. When Kluck asked her what she was doing there, she tried closing the door, but Kluck had put his foot in the doorway to prevent the door's closing. The woman continued to push against the door, asking Kluck to wait because "her man was naked." Kluck responded, "That's all right, I have seen naked men before." She then ran down the hall of the apartment and entered the bathroom.

¶ 8. When Kluck entered the apartment, he found several other people in the living room, and he called for additional officers to assist him. Kluck directed the woman who answered the door and Sykes to sit down. After Horvath and another officer arrived at the apartment, Horvath asked Sykes for identification.

¶ 9. Horvath testified that he sought to obtain Sykes's identification as follows:

A I asked Mr. Sykes if he had any identification, he said not on him but he had it in his wallet. I then asked where his wallet was.
Q What happened then?
A He advised me that it was laying in the living room area underneath a, I believe it was a cedar chest, that was up on legs so there was a space underneath it, and pointed that his wallet was laying right there.
Q What did you do?
A I went and got the wallet where he advised me that it was. I double checked and said, "Is this your wallet," and he said it was. And I double checked, asked if the identification was in the wallet, he said it was.
Q What happened then?
A I opened the wallet to look for identification, and immediately found a baggie that I pulled out that I believed to be crack cocaine.
Q Was the license also in there?
A Yes, it was.

Horvath then placed Sykes under arrest. Pursuant to consent from Hudson, a full search of the apartment was then conducted and more controlled substances were found.

¶ 10. In an oral decision, the circuit court decided that

the search of Sykes's wallet was lawful:

Horvath ... was making in my judgment an investigatory stop per se or, pat down, which he had a right to do under the circumstances to obtain the identity of the people in the apartment. The only reason he went to the item on the floor, the wallet, was because he was directed there by the Defendant in response to the question: Do you have any identification. He is entitled to ask for identification.
I think the items located within the wallet were located, in effect, in plain view while the officer was attempting to ascertain the identity of the Defendant, which he had lawful reason to do.

After pleading guilty to amended charges, Sykes appealed the circuit court's decision. The court of appeals affirmed, concluding that the search of Sykes's wallet was a reasonable search incident to a lawful arrest.

¶ 11. Sykes then petitioned this court for review, which we granted. Sykes asks us to review whether a search incident to arrest is lawful where there is probable cause to arrest for a crime, a search is conducted prior to that arrest, and the suspect is then immediately arrested and charged only with offenses based on evidence seized during the search.

II. DISCUSSION

A. Standard of Review

¶ 12. In reviewing the denial of a motion to suppress evidence, we will uphold a circuit court's findings of historical fact unless they are clearly erroneous. State v. Vorburger, 2002 WI 105, ¶ 32, 255 Wis. 2d 537, 648 N.W.2d 829. However, we review de novo the circuit court's application of constitutional principles to those facts. Id.

B. Search Incident to a Lawful Arrest

¶ 13. The constitutional provisions cited by Sykes, the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution, provide protection from unreasonable searches and seizures. State v. Pallone, 2000 WI 77, ¶ 28, 236 Wis. 2d 162, 613 N.W.2d 568. These provisions' purpose is to safeguard individuals' privacy and security against arbitrary governmental invasions, which requires striking a balance between the intrusion on an individual's privacy and the government's promotion of its legitimate interests. State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990) (citations omitted). Historically, we follow the United States Supreme Court's interpretations when construing both constitutions' search and seizure provisions. Id.

¶ 14. As discussed in Chimel v. California, 395 U.S. 752, 762-63 (1969), a warrantless search of a person incident to a lawful arrest does not violate constitutional search and seizure provisions. See also Murdock, 155 Wis. 2d at 228. " 'A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.'" State v. Fry, 131 Wis. 2d 153, 169, 388 N.W.2d 565 (1986) (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)).

¶ 15. A Chimel search incident to arrest must be contemporaneous to the arrest. Murdock, 155 Wis. 2d at 236. However, in Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), the Supreme Court explained that where a "formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa." Accord State v. Mata, 230 Wis. 2d 567, 574, 602 N.W.2d 158 (Ct. App. 1999) (citations omitted); see generally 3 Wayne R. LaFave, Search and Seizure § 5.4(a) (4th ed. 2004) (describing the evolution of the "search for evidence prior to arrest" case law). Therefore, "[a] search may be incident to a subsequent arrest if the officers have probable cause to arrest before the search." State v. Kiekhefer, 212 Wis. 2d 460, 484, 569 N.W.2d 316 (Ct. App. 1997) (citing Rawlings, 448 U.S. at 111).

¶ 16. The Court in Rawlings further explained that probable cause to arrest must have existed independent of the fruits of the search of the suspect's person. Rawlings, 448 U.S. at 111 & n.6; see also LaFave, supra, § 5.4(a). As the court of appeals has said, "A search may immediately precede a formal arrest so long as the fruits of the search are not necessary to support the arrest." Mata, 230 Wis. 2d at 574 (citation omitted). Accordingly, when a suspect is arrested subsequent to a search, the legality of the search is established by the officer's possession, before the search, of facts sufficient to establish probable cause to arrest followed by a contemporaneous arrest. See id.; Kiekhefer, 212 Wis. 2d at 484; see also Rawlings, 448 U.S. at 111.

¶ 17. In the present case, the officers had probable cause to arrest Sykes for criminal trespass before initiating the search. Pursuant to Wis. Stat. § 943.14, "[w]hoever intentionally enters the dwelling of another without the consent of some person lawfully upon the premises, upon circumstances tending to create or provoke a breach of the peace," commits criminal trespass to a dwelling. The phrase "breach of the peace," as used in Wis. Stat. § 943.14, "need only be such as to put the victim in fear of bodily harm or otherwise disturb or disrupt the peace and sanctity of the home." State v. Von Loh, 157 Wis. 2d 91, 99, 458 N.W.2d 556 (Ct. App. 1990).

¶ 18. There is probable cause to arrest "when the totality of the circumstances within that officer's knowledge at the time of the arrest would lead a reasonable police officer to believe that the defendant probably committed a crime. . .. The objective facts before the police officer need only lead to the conclusion that guilt is more than a possibility." State v. Cash, 2004 WI App 63, ¶ 24, 271 Wis. 2d 451, 677 N.W.2d 709 (citations omitted); accord Leroux v. State, 58 Wis. 2d 671, 683-84, 207 N.W.2d 589 (1973).

¶ 19. Here, Horvath knew before he searched Sykes's wallet that the apartment was rented to Hudson, that she was not present, that unwanted individuals had been in the apartment and that they would not leave when asked. He also knew that the landlord had requested police assistance during the change of the locks due to safety concerns. Based on these facts, it would be reasonable for a police officer to conclude first, that Sykes was in the apartment without permission and second, that Sykes had generated a certain amount of fear in Downham, or at least disrupted the sanctity of Hudson's home. Horvath thus had probable cause to arrest Sykes for committing criminal trespass of Hudson's dwelling.

¶ 20. The scope of a search incident to arrest is confined to "the area from within which [the suspect] might gain possession of a weapon or destructible evidence," Chimel, 395 U.S. at 763; accord United States v. Jackson, 576 F.2d 749, 753 (8th Cir. 1978) (referring to this area as the suspect's "wing-span"). We have understood this to mean the area immediately surrounding the arrestee. Murdock, 155 Wis. 2d at 231.

¶ 21. Sykes has not asserted that the search of his wallet exceeded the area that may be searched incident to a lawful arrest. We note that the officers testified that prior to the search, Kluck had directed Sykes to sit in the living room; that when Horvath asked Sykes where his wallet was located, Sykes nodded and pointed under a cedar chest located in the living room; and that the officers retrieved the wallet from under that cedar chest. For the purposes of the present discussion, it is reasonable to infer from these facts, together with Sykes's apparent concession, that law enforcement's search was confined to the area immediately surrounding Sykes. Therefore, it was within the physical area for a lawful search incident to arrest. See Murdock, 155 Wis. 2d at 231.

¶ 22. In sum, Horvath's search of Sykes's wallet was a valid Chimel search incident to arrest. Horvath had probable cause to arrest Sykes for criminal trespass before the search was conducted and independent of the fruits of the search. Immediately after the search, Horvath did arrest Sykes. That the arrest led to drug-related charges being filed, not to a charge for criminal trespass, does not negate that probable cause to arrest existed prior to the search.

¶ 23. Sykes argues that pursuant to State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991), the search in question here would have been valid as a search incident to arrest only if the law enforcement personnel had subjectively intended to arrest him for criminal trespass before conducting the search and if, after the search, he had actually been arrested for criminal trespass. In Swanson, a law enforcement officer conducted a pat down search of Swanson after observing Swanson's vehicle nearly hit a pedestrian while driving on the sidewalk at about 2:00 a.m. and after detecting an odor of intoxicants on Swanson's breath. Swanson, 164 Wis. 2d at 442. In the course of that search, the officer discovered and seized a bag of marijuana in Swanson's pocket and then arrested him. Id. He was charged with possession of a controlled substance, but he was not charged with reckless endangerment or drunk driving. Id. at 443, 453. We decided that the search was not a valid search incident to arrest. Id. at 450-55.

¶ 24. Swanson does not control the present case. In Swanson, while noting that it was not necessary to address whether probable cause existed to arrest Swanson for another offense, id. at 453, we explained that the facts known to the officer established only a reasonable suspicion that Swanson had committed either operating under the influence or reckless endangerment, but without more, those facts did not provide a basis for probable cause to arrest for either crime, id. at 453 n.6. Therefore, in Swanson, the only crime for which the officers had probable cause to arrest was the drug charge, an arrest based on evidence seized during the search. However, in the present case, as explained above, Horvath had probable cause to arrest Sykes for criminal trespass before the search and independent of the fruits of the search.

¶ 25. The Swanson decision's requirement that "the State show that an arrest actually took place for something other than possession of a controlled substance" was meant to "ensure that the police do not arbitrarily violate an individual's privacy." Id. at 452. The Swanson decision expressed concern that an individual's privacy could be invaded arbitrarily if police were allowed "to justify searches in the hope that the search would uncover something they could pursue." Id. at 453. However, where a law enforcement officer has probable cause to arrest before a search is undertaken, as Horvath had probable cause to arrest Sykes for criminal trespass, this concern is not implicated. Hor-vath did not need to search Sykes in hopes that he would "uncover something" to pursue. He already had "something" to pursue: criminal trespass.

¶ 26. Similarly, the State here is not requesting that we "carve out an exception to warrantless searches based solely on probable cause with no resulting arrest," as we declined to do in Swanson. Id. at 453. In the present case, there was both probable cause before the search and an arrest immediately after the search. Accordingly, we reaffirm our statement in Swanson, that "[t]he actual making of a formal arrest... is ... a significant event." Id. at 451. It is the arrest immediately following the search, along with the probable cause to arrest before the search, that causes the search to be lawful. Mata, 230 Wis. 2d at 574; Kiekhefer, 212 Wis. 2d at 484; see also Rawlings, 448 U.S. at 111; Robinson, 414 U.S. at 235.

¶ 27. Sykes contends the search at issue here was not lawful because the crime he was arrested for immediately after the search was different than the crime for which the officer had probable cause to arrest before the search. However, as long as there was probable cause to arrest before the search, no additional protection from government intrusion is afforded by requiring that persons be arrested for and charged with the same crime as that for which probable cause initially existed. To conclude otherwise would put form over substance because Sykes could have been arrested for both criminal trespass and the drug-related offenses; the district attorney could have decided to prosecute only the drug-related offense, and Sykes would be in the same position as he is in now. The intrusion on his privacy would have been no different. Accordingly, we withdraw any language from Swanson that could be interpreted to limit the lawfulness of the search to requiring an arrest for the same crime for which probable cause existed prior to the search.

¶ 28. As to the officer's subjective motivations for initiating the search, Sykes argues that the officers were in Hudson's apartment in a "community caretaker capacity" or "peacekeeping function," rather than in a "criminal investigative capacity," and because of their reason for being present, they did not intend to arrest Sykes until contraband was found in his wallet. Sykes further argues that Kluck's and Horvath's conduct did not provide any indication that Sykes was going to be arrested until the drugs were found in his wallet.

¶ 29. We note that characterizing law enforcement's presence during the changing of the locks as a "community caretaking/peacekeeping" function does not preclude an officer, once he has probable cause to arrest, from acting accordingly. Additionally, in Whren v. United States, 517 U.S. 806, 813 (1996), the Supreme Court explained that it was "unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers." Accord Arkansas v. Sullivan, 532 U.S. 769, 771 (2001) (quoting Whren to articulate the same principle); Mata, 230 Wis. 2d at 574 (stating that a court is "not bound by an officer's subjective reasons for a search or arrest"); see also State v. McGill, 2000 WI 38, ¶ 23, 234 Wis. 2d 560, 609 N.W.2d 795 (deciding that as to a protective frisk, an objective standard should apply to determine the reasonableness of the search); State v. Baudhuin, 141 Wis. 2d 642, 650-51, 416 N.W.2d 60 (1987) (deciding that the lawfulness of a vehicle stop depended on the objective facts observed by the officer, not the officer's subjective intent). Similarly, the Supreme Court recently stated in Devenpeck v. Alford, 125 S. Ct. 588, 594 (2004), " '[T]he fact that the officer does not have the state of mind [that] is hypothecated by the reasons [that] provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.' " (Quoting Whren, 517 U.S. at 813.) In Devenpeck, the Court further recognized that the application of objective standards, rather than standards that depend on the officer's subjective state of mind, promotes evenhanded law enforcement. Id. (citation omitted).

¶ 30. The court of appeals' reasoning in Mata is consistent with that of the Supreme Court. In Mata, the court determined that the search being challenged was a search incident to arrest, regardless of the fact that the search, as here, preceded the arrest. Mata, 230 Wis. 2d at 574. The officer who arrested Mata stated a basis for the search that the court concluded was not sufficient. Id. However, because the officer was aware of objective facts that were sufficient to establish probable cause to arrest and the search was conducted incident to an arrest, the court of appeals upheld the search. Id. It explained that "the law provides" that the search was lawful, regardless of the officer's subjective reasons for conducting the search. Id.

¶ 31. Similarly here, whether law enforcement subjectively intended to arrest Sykes for criminal trespass is not the relevant inquiry. Because an analysis of probable cause to arrest turns on the objective facts known to the officer, Cash, 271 Wis. 2d 451, ¶ 24, the relevant inquiry is whether the officer was aware of sufficient objective facts to establish probable cause to arrest before the search was conducted, as well as whether an actual arrest was made contemporaneously with the search.

¶ 32. Sykes also relies on State v. Hart, 2001 WI App 283, ¶ 10, 249 Wis. 2d 329, 639 N.W.2d 213, for the principle that, contrary to Mata's holding, "[t]he subjective intent of the police officer as a reasonable person would understand it is the driving force in these situations." In Hart, a police officer pulled Hart over for drunk driving, administered a breath test to establish that Hart was intoxicated, and decided to drive Hart to the police station, rather than arrest him, so Hart could arrange for a ride home. Hart, 249 Wis. 2d 329, ¶ 2. The officer told Hart that he was not under arrest and that he would be allowed to go home once he had arranged for someone to drive him. Id., ¶ 7. The department had a policy that officers do a protective search prior to transporting a citizen in a squad car. Id., ¶ 2. During that search, the officer discovered a marijuana pipe and arrested Hart for possession of drug paraphernalia. Id.

¶ 33. The court in Hart distinguished the Mata decision, explaining that

from the moment he had probable cause, the officer in Mata conducted himself the way a reasonable officer would in the course of making an arrest.... In our case, unlike in Mata, the officer was entitled to make an arrest but chose not to; therefore, it was no longer reasonable to conduct himself as if an arrest was imminent.

Id., ¶ 10 n.5. However, that rationale is inconsistent with opinions of the United States Supreme Court and those of this court that have explained that the subjective intent of the officer (except for the facts that he knows) is not determinative of whether the search violates constitutional principles that prohibit unreasonable searches and seizures. Devenpeck, 125 S. Ct. at 594; Sullivan, 532 U.S. at 771; Whren, 517 U.S. at 813; McGill, 234 Wis. 2d 560, ¶ 23. We therefore conclude that the reasoning of Mata, not that of Hart, provides guidance for our decision. Any discussion in Hart that could be interpreted to invalidate a search incident to an arrest for which arrest the officer has probable cause is overruled.

III. CONCLUSION

¶ 34. We conclude that the officer had probable cause to arrest Sykes for criminal trespass prior to the search of Sykes's wallet. We also conclude that whether the officer intended to arrest Sykes for criminal trespass prior to the search, or whether Sykes was actually arrested for and charged with criminal trespass, are not dispositive of whether the search was lawful. Rather, the search was lawful because law enforcement had probable cause to arrest Sykes for a crime prior to the search and also arrested Sykes immediately after the search, although for a different crime.

By the Court. — The decision of the court of appeals is affirmed.

SHIRLEY S. ABRAHAMSON, C.J.

(<dissenting).

¶ 35. The majority opinion holds that the search leading to the recovery of the defendant's wallet was a valid Chimel search. Majority op., ¶ 22. See Chimel v. California, 395 U.S. 752 (1969). I disagree.

¶ 36. I also write to address an issue of appellate practice, namely, how an attorney should advise this court of an erroneous statement in his or her brief or oral argument.

hH

¶ 37. A Chimel search is a search incident to a lawful arrest that allows law enforcement to search the area within the arrestee's "immediate control." Law enforcement may search the area immediately surrounding the arrestee, for their protection and to preserve evidence. Unless this search fits into the Chimel exception, it is a warrantless search and is per se unreasonable under Article I, Section 11 of the Wisconsin Constitution and the Fourth and Fourteenth Amendments of the United States Constitution.

¶ 38. The only evidence of the arrestee's physical relation to the wallet was that the arrestee was on a couch in the same room as was the wallet. At the suppression hearing the officer who picked up and searched the wallet had the following to say about the wallet's location: "I think [the defendant] just nodded with his head and pointed to the area of the living room where the cedar chest was[; the wallet was under the cedar chest]." (R. 15:43.) This testimony suggests only that the wallet was in the living room, nothing more.

¶ 39. That the arrestee and the evidence are in the same room is simply insufficient under our case law to validate a search incident to an arrest. Our court has stated that "[although an entire room might be an area into which an arrestee might gain access to a weapon or evidence, the Chimel standard authorizes a more limited scope of search which recognizes that rooms differ in size, shape and design." Nothing in the record suggests the size, shape, and design of the living room. Nor does the record indicate where the officers and the defendant were in the undescribed living room. The State carries the burden of persuasion in justifying a Chimel search and this record is insufficient for that purpose.

¶ 40. The State and the courts have struggled to find a theory to save the evidence from suppression. At the suppression hearing the State argued that the officer looked in the wallet only to confirm identity. The circuit court, in denying the motion to suppress, held that the officer picked up the wallet because he was directed to it by the defendant, or in the alternative, that the wallet was in plain view. The circuit court did not, however, find that the defendant had consented to the search. The court of appeals upheld the search on grounds not argued by the parties, namely, that the search of the wallet was a reasonable search incident to a lawful arrest. The court of appeals did not cite Chimel, and in citing Murdock only once, did not do so for any proposition related to a Chimel search.

¶ 41. The majority opinion agrees with the court of appeals, but must overcome a hurdle the court of appeals overlooked, namely, whether the search was confined to the area permissible under Chimel. To overcome this difficulty, the majority opinion "infer[s]" that the officer's search was confined to the area permissible under Chimel. Majority op., ¶¶ 21-22. Although the State may be entitled to reasonable inferences from the evidence presented, nothing in the record allows a court to infer the size, shape, and design of the room, facts necessary to justify a Chimel search under this court's and the U.S. Supreme Court's jurisprudence.

¶ 42. The lack of this evidence is not surprising; it is perfectly understandable. The case was not tried on the theory of a reasonable search incident to an arrest, and through no fault of law enforcement officers, no testimony about the area within the arrestee's immediate control was introduced at the suppression hearing.

¶ 43. Cognizant of the record's deficiency and the weakness of its reliance on an "inference" that the wallet was within the permissible searchable area, the majority opinion relies on what it characterizes as the defendant's "apparent concession, that law enforcement's search was confined to the area immediately surrounding" him. Majority op., ¶ 21. The majority is apparently asserting that the defendant conceded the validity of the Chimel search because he did not argue that the wallet was outside the searchable area, even though he contested the validity of the search. The majority opinion cites no authority for its language about concession.

¶ 44. The defendant never made such a concession on the record or in his briefs. The court of appeals raised the question whether the search could be justified as a "protective sweep" and apparently the parties argued this issue before the court of appeals. Neither the State nor the defendant argued in any court about the Chimel issue of the scope of the search, although the defendant argued that the search of the wallet was not permissible within the scope of a pat down.

¶ 45. The majority opinion errs. That the search did not comply with Chimel is plain error. The scope of the search affects substantial constitutional rights of the defendant, and this court should reach the issue and hold that the State failed to meet its burden to prove that the search was in the area within the arrestee's immediate control. A reversal of conviction is required when plain error was committed. At a minimum the court should ask the parties to brief this issue, instead of relying on a non-existent concession or waiver.

¶ 46. The majority opinion has relieved the State of its burden of establishing that the evidence was within the arrestee's immediate control and that the search falls under one of the " 'jealously and carefully drawn'" exceptions to the warrant requirement. Indeed, by asserting the defendant's failure to argue a point upon which the State clearly has the burden of persuasion, the majority opinion flips the burden of persuasion from the State to the defendant.

¶ 47. Even if I were to agree with the remaining portions of the majority opinion — and I have my doubts —the record, despite the majority opinion's attempts to rectify its shortcomings, does not support the conclusion that the State has met its burden of persuasion under Chimel.

¶ 48. Professor LaFave writes that when reviewing Chimel searches, some courts view a defendant "as a combination acrobat and Houdini who might well free himself from his restraints and suddenly gain access to some distant place." Here, the majority opinion has magically produced a valid Chimel search without a record delineating the location of the evidence in relation to the location of the arrestee. Like any illusionist's magical sleight of hand, the majority opinion is mystifying and puzzling, but ultimately not what it appears. I therefore dissent.

II

¶ 49. I also write to address an issue of appellate practice, namely, how an attorney should advise this court of an erroneous statement in his or her brief or oral argument.

¶ 50. On November 17, 2004, five days after oral arguments in this case, the experienced Assistant Attorney General representing the State filed a motion entitled: "MOTION TO CORRECT STATEMENTS MADE DURING ORAL ARGUMENT." The State requested permission to submit a letter correcting statements made during oral arguments about an appellate decision, stating in part:

The state is not submitting the proposed letter with this motion because the state does not want to place the additional information before the court in the above-entitled case before receiving permission from the court to do so. A draft of the letter has been prepared and it would be approximately three pages long to identify the locations of the oral argument where the incorrect statements were made, to explain the correct holding of the appellate decision and to explain how the [State's] statements were incorrect in reporting the holding of the case.

¶ 51. What was remarkable about the State's motion is that the three-page double-spaced motion conspicuously and cryptically failed to mention the name of the erroneously represented case, the name of the "appellate court" issuing the erroneously represented case, the holding of the erroneously represented case, or how essential the erroneously represented case was to the State's position. In my nearly 28 years on this court I cannot recall ever seeing a similarly worded motion. The ordinary practice is for a party's counsel to submit a letter to the court and to opposing counsel correcting any misstatement.

¶ 52. The court denied the State's request in an unpublished order dated April 22, 2005, stating: "The court appreciates the candor of the State in wanting to correct any misstatement made during oral argument. However, because the court relied on its own reading of the cases used in its decision and not on any statement made by the State during oral argument, it is not necessary to correct the representation that was made."

¶ 53. Justice Ann Walsh Bradley and I were the sole dissenters to the order. We would have granted the State's motion, given the cost and time the parties invest in preparing for cases and the importance of the adversarial system.

¶ 54. This court should care about representations made by parties. When a party that will ultimately prevail (although the State could not have known that fact when it submitted the motion) submits a motion to this court offering to correct an error, we should be receptive. We need all the help we can get.

¶ 55. The message that emerges from this court's order denying the State's motion should not be that the court does not care about what you say during oral argument. The court does care. The message for future litigants is: Do not ask permission to correct misstatements made at oral arguments or in the briefs, just do it.

¶ 56. For the reasons set forth, I write separately.

¶ 57. I am authorized to state that Justice ANN WALSH BRADLEY and Justice LOUIS B. BUTLER, JR. join this separate dissenting opinion.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       On cross-examination, Horvath clarified, "I asked him where his wallet was located, and he advised me that — I think he just nodded with his head and pointed to the area of the living room where the cedar chest was."

       The Fourth Amendment to the United States Constitution states:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

       Article I, Section 11 of the Wisconsin Constitution states:
      The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

       In Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), Rawlings acknowledged ownership of drugs that were in the purse of another, thereby giving police probable cause to arrest him prior to searching him.

       The dissent says that we are shifting the burden to Sykes to prove the search was lawful. Dissent, ¶ 45. However, an unargued issue generally is not raised by this court sua sponte and then decided, because neither party will have had the opportunity to brief or argue it. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998). Additionally, when an issue is not raised in the circuit court, but is raised here, we have concluded that the issue is waived. State v. Caban, 210 Wis. 2d 597, 604-05, 563 N.W.2d 501 (1997) (holding that the issue of whether there was probable cause to conduct an auto search was waived because it was not raised until appeal). Accordingly, precedent does not support the dissent's assertion that by our not picking up an issue that was not presented to us, we have shifted the burden to prove the search was lawful to Sykes.

       The State argues that by this conduct Sykes consented to the search. The Fourth Amendment is not violated by a war-rantless search where consent to search is freely and voluntarily given. State v. Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d 794 (1998) (citation omitted). "The State bears 'the burden of proving by clear and positive evidence the search was the result of a free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied.'" State v. Johnson, 177 Wis. 2d 224, 233, 501 N.W.2d 876 (Ct. App. 1993) (quoting Gautreaux v. State, 52 Wis. 2d 489, 492, 190 N.W.2d 542 (1971)). However, whether an individual has given consent is a question of fact, so we "uphold the trial court's finding on this issue unless it is against the great weight and clear preponderance of the evidence." State v. Tomlinson, 2002 WI 91, ¶ 36, 254 Wis. 2d 502, 648 N.W.2d 367. Here, the circuit court did not make a finding as to whether Sykes consented to the search, so there is no finding of fact for us to review. We decline to consider the issue further, as it is outside the scope of the review we granted and its resolution is not necessary in light of our decision that the present search was lawful as a search incident to arrest. For the same reasons, we do not address Sykes's arguments as to whether the challenged search was a lawful "pat down," whether the seizure in question was lawful because the contraband was in "plain view," or whether the search was lawful as an "identification search."

        See Chimel v. California, 395 U.S. 752, 763 (1969); State v. Murdock, 155 Wis. 2d 217, 231, 455 N.W.2d 618 (1990); 3 Wayne R. LaFave, Search and Seizure § 6.3(b) (4th ed. 2004).
      Under Chimel, police may conduct a limited search of the area immediately surrounding an arrestee, " 'the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.'" State v. Murdock, 155 Wis. 2d 217, 236, 455 N.W.2d 618 (1990) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)).

        State v. Murdock, 155 Wis. 2d 217, 22, 455 N.W.2d 618 (1990).

        Murdock, 155 Wis. 2d at 236. We continued in Murdock, in language relevant here: "Thus, [a bright-line allowance of searches of the room in which the arrest takes place], while attractively clear cut on its face, is overly broad. As such, it is in direct conflict with the express language of Chimel, 395 U.S. at 763 ...." Id. at 217-18.

        Murdock, 155 Wis. 2d at 222.

       The majority opinion acknowledges that the defendant did not consent to the search. Majority op., ¶ 21 n.6.

        Murdock, 155 Wis. 2d at 217.

        See State v. Horngren, 2000 WI App 177, ¶ 20, 238 Wis. 2d 347, 617 N.W.2d 508 (relating to a protective sweep in a search incident to an arrest and a caretaker search). See Notice of Oral Argument, Wisconsin Court of Appeals, September 29, 2003.

        State v. King, 205 Wis. 2d 81, 87-91, 555 N.W.2d 189 (1996); State v. Sonnenberg, 117 Wis. 2d 159, 176-77, 344 N.W.2d 95 (1984).

       3 Wayne R. LaFave, Search and Seizure § 6.3(c) (2004).