State v. Nathan J. White

COURT OF APPEALS
DECISION NOTICE
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.
August 27, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2023AP2426-CR Cir. Ct. No. 2022CF7

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NATHAN J. WHITE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: GERAD T. DOUGVILLO, Judge. Affirmed.

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

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP2426-CR

¶1 PER CURIAM. Nathan J. White appeals from a judgment of
conviction for one count of possession of 5-15 grams of cocaine with intent to
deliver and an order denying postconviction relief. White seeks sentence
modification, asserting that the circuit court erroneously exercised its sentencing
discretion by imposing a consecutive rather than concurrent sentence and deeming
him ineligible for the Substance Abuse Program (SAP). White also contends that
he has demonstrated a new factor warranting sentence modification because he was
removed from the SAP waitlist for a prior sentence based on his SAP ineligibility
in this case. Because we conclude that the court did not erroneously exercise its
sentencing discretion and that White’s eligibility for the SAP on a prior sentence
does not constitute a new factor, we affirm.

BACKGROUND

¶2 In 2021, while White was on supervision for prior drug and firearm
offenses, a police search of White’s residence following a firearms complaint
yielded the discovery of substantial quantities of cocaine and marijuana, as well as
drug paraphernalia and a firearm magazine. White was charged with three counts:
(1) possession with intent to deliver cocaine, 15 to 40 grams; (2) possession of THC,
second and subsequent offense; and (3) possession of drug paraphernalia. White
entered a guilty plea to the first count as amended and the other counts were
dismissed. As part of the plea bargain, the State agreed to not make a specific
sentencing recommendation. The Presentence Investigation (PSI) report writer
recommended “3 to 4 years of initial confinement [and] 2 to 3 years of extended
supervision, concurrent to any other sentence.”

¶3 In its sentencing argument, the State referenced as an aggravating
factor White’s extensive criminal history, including prior convictions involving

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firearms and drug dealing. In a lengthy statement to the circuit court, White said
that he “ma[d]e no excuses for [his] poor decisions or behaviors,” understood that
prison time was warranted, and apologized to the community.

¶4 The circuit court stated it was considering “the gravity of the offense,
the character of the offender and the need to protect the public”—the factors that
State v. Gallion, 2004 WI 42, ¶¶27, 40-44, 270 Wis. 2d 535, 678 N.W.2d 197,
requires it to consider. In that regard, the court discussed White’s criminal history
and character and noted that White had already received “a substantial amount of
treatment and programming” which had not been successful in preventing him from
committing further crimes. The court, however, did recognize that White took
responsibility by entering a plea and apologizing to the court and the community.
White was sentenced to four years of initial confinement and three years of extended
supervision. The court denied White’s request to make this sentence concurrent to
a sentence he was currently serving, stating:

These are separate acts that deserve a separate punishment.
Nobody gets a discount for committing crimes in bulk or
having them in short succession. So that is not going to be
granted. Therefore, there is going to be no credit afforded
on this case. And again, this is to be consecutive to any other
time being served.

The court also ordered that, “given the prior programming that’s been afforded to
Mr. White,” he was not eligible for the SAP.

¶5 White filed a postconviction motion for sentence modification,
alleging that the circuit court erroneously exercised its discretion by refusing to
make his sentence concurrent and by not making him eligible for the SAP. White
also asserted that a “new factor” was present because the ineligibility for the SAP
caused him to be removed from the Earned Release Program he was participating

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No. 2023AP2426-CR

in for his prior sentence; this removal, White asserts, was “the effective canceling
of his” SAP eligibility. The court, explaining that dissatisfaction with a sentence is
not enough to support modification and that it had imposed a consecutive sentence
and no SAP eligibility due to White’s history of reoffending, denied the motion.
White appeals.

STANDARD OF REVIEW

¶6 The question before this court as to whether a defendant’s
postconviction motion alleges sufficient facts that would entitle him or her to relief
is one that we review independently. State v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d
225, 880 N.W.2d 659. If the motion fails to raise sufficient facts, presents only
conclusory allegations, or if the record below conclusively shows the defendant is
not entitled to relief, the circuit court has the discretion to deny an evidentiary
hearing; that is a decision that we review under an erroneous exercise of discretion
standard. Id.

¶7 Sentencing decisions made by a circuit court—including whether a
sentence is to be served concurrently or consecutively and whether a defendant is to
be deemed SAP-eligible—are also reviewed for an erroneous exercise of discretion.
McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971); State v. Douglas,
2013 WI App 52, ¶20, 347 Wis. 2d 407, 830 N.W.2d 126. The defendant has the
“heavy burden” of proving, by clear and convincing evidence, that there was an
erroneous exercise of discretion. State v. Harris, 2010 WI 79, ¶¶30-31, 34, 326
Wis. 2d 685, 786 N.W.2d 409.

¶8 Finally, whether a defendant has presented facts that constitute a new
factor with respect to sentence modification is also a question of law that is reviewed
independently. State v. Harbor, 2011 WI 28, ¶33, 333 Wis. 2d 53, 797 N.W.2d

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828. Whether the new factor warrants sentence modification is a discretionary
decision made by the circuit court that we also review under an erroneous exercise
of discretion standard. Id.

DISCUSSION

¶9 On appeal, White renews his arguments that the circuit court
erroneously exercised its discretion in multiple ways: by imposing an unduly harsh
consecutive sentence, by imposing a consecutive sentence pursuant to a mechanistic
or preconceived policy, by denying him eligibility for the SAP, and by issuing a
perfunctory denial of his postconviction motion without affording it due
deliberation. White further asserts that a new factor (his removal from the SAP
waitlist on his prior sentence) warrants sentence modification in this case. We
disagree in all respects.

¶10 The mere fact that a circuit court imposed a longer period of initial
confinement or a consecutive rather than concurrent sentence rather than what was
recommended by the Department of Corrections (DOC) in its PSI report does not,
in and of itself, constitute an erroneous exercise of discretion. A court is free, after
consideration of the report, to accept or reject the recommendations contained
therein. State v. Brown, 2006 WI 131, ¶24, 298 Wis. 2d 37, 725 N.W.2d 262 (“In
the context of a formal sentencing hearing, a sentencing court is not required to give
any particular level of deference to the DOC’s sentencing recommendations, which
are included in [PSI] reports.”) A court has broad authority to exercise its
sentencing discretion based upon a consideration of the Gallion factors. State v.
Spears, 227 Wis. 2d 495, 506-07, 596 N.W.2d 375 (1999).

¶11 White’s assertion that the imposition of a consecutive sentence was
done via a “mechanistic approach” or “preconceived policy,” as barred by State v.

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No. 2023AP2426-CR

Martin, 100 Wis. 2d 326, 327, 302 N.W.2d 58 (Ct. App. 1981), is unsupported by
the Record. It wholly rests upon the circuit court’s statement that “[n]obody gets a
discount for committing crimes in bulk or having them in short succession.” That
statement, contrary to White’s assertions, actually shows that the court was
individualizing the sentence and tailoring it to White’s conduct in this case, basing
it upon his past criminal record, his past attempts in rehabilitative programs, and his
expressed remorse and cooperation. The court looked to all of those factors and
explained that nobody—not White or anyone else—gets a blanket ruling; rather,
everyone is sentenced for what they did, what they have done in the past, and how
they have moved forward. This was not mechanistic. It was a statement that each
person is sentenced individually.

¶12 Likewise, White has also failed to meet his heavy burden to show that
deeming him SAP-ineligible was an erroneous exercise of discretion. The circuit
court was clear and rational in its explanation of why the SAP was not appropriate
for White due to his prior participation in such programming and that once released
from incarceration (actually with early release due to that participation), he jumped
right back into using, possessing, and dealing cocaine.

¶13 It is within a circuit court’s discretion to determine the weight to be
given to relevant factors when imposing a sentence. State v. Odom, 2006 WI App
145, ¶7, 294 Wis. 2d 844, 720 N.W.2d 695. Thus, so long as the court listened to
the State, the defense attorney, the defendant, and considered all reports and letters
submitted, it is the court’s prerogative to determine which person, entity, report, or
letter to give the greatest weight when balancing the appropriate Gallion factors.
The court, here, did precisely that. It referenced all of the information and
statements it had heard and after placing all the information on a scale, made a
pronouncement of how White’s conduct, history, and danger to the community

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No. 2023AP2426-CR

resulted in the sentence imposed. Because the court considered the facts of record
and reasoned its way to a rational, legally sound conclusion, we conclude the
decisions to impose a consecutive sentence and to deny SAP eligibility were not
erroneous exercises of discretion. See State v. Jeske, 197 Wis. 2d 905, 912, 541
N.W.2d 225 (Ct. App. 1995).

¶14 White also contends that the order denying his postconviction motion
“appears totally perfunctory” and fails to address the issues he raised. That is
inaccurate; the circuit court indicated that it had reviewed White’s request for SAP
eligibility and was denying it because “it would undermine the punish[ment] aspect
of this sentence and unduly depreciate the seriousness of the offense,” and that
White had previously participated in early release programming but still “continued
to re-offend.” The court adequately set forth its reasons for denying the
postconviction motion, even if White wishes it would have done more.

¶15 In its denial order, the circuit court also reiterated its basis for
imposing a consecutive sentence and found “no good reason to revisit this issue.”
It outlined and reinforced its prior rulings and explained that the motion failed to
raise new issues which would have warranted a hearing. The order provided discrete
and detailed reasons for the court’s decisions. See McCleary, 49 Wis. 2d at 277.
Nothing more is required.

¶16 Finally, we agree with the circuit court that White has not
demonstrated that a new factor exists for purposes of sentence modification. State
v. Noll, 2002 WI App 273, ¶11, 258 Wis. 2d 573, 653 N.W.2d 895. A new factor
is a fact that is “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

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No. 2023AP2426-CR

existence or because, even though it was then in existence, it was unknowingly
overlooked by all of the parties.” Harbor, 333 Wis. 2d 53, ¶40 (citation omitted).

¶17 This court has previously held that the denial of eligibility for prison
programming (such as the SAP) is not a new factor. See State v. Schladweiler, 2009
WI App 177, ¶15, 322 Wis. 2d 642, 777 N.W.2d 114, abrogated on other grounds,
Harbor, 333 Wis. 2d 53, ¶¶47-48 & n.11. A circuit court’s participation in the
staffing of prison programming is limited and consists only of the first step: the
declaration that a defendant is either eligible or ineligible. After that, the DOC
jumps in and takes over. The DOC determines—based on its own tests and analysis
as well as on program placement availability—not only whether an inmate is placed
in programming, but when that will happen. Schladweiler, 322 Wis. 2d 642, ¶10
(“[I]t is not the sentencing court’s function to classify an inmate to a particular
institution or program; this authority lies solely with the DOC.”).

¶18 Moreover, the facts of this case contradict White’s assertion that his
ability to participate in the SAP on a prior sentence was highly relevant to his
sentence in this case. To the contrary, the circuit court explicitly wanted to prevent
White from participating in such programing. The court made efforts to apprise
itself of the circumstances of White’s revocation sentence for possession of a
firearm and drug charges before imposing the sentence in this case. For the reasons
explained above, the court concluded a consecutive sentence was appropriate,
without any reference to White’s SAP eligibility in the revocation case. It was
White’s previous failed treatment programming, not his eligibility for treatment
programming in the revocation sentence, that dictated White’s ineligibility in the
present case.

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No. 2023AP2426-CR

¶19 In short, White has not met his heavy burden of demonstrating that
the circuit court erroneously exercised its sentencing discretion or that a new factor
exists warranting sentence modification. Accordingly, we affirm.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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