Background
In 2016, Gavin Crosby was charged with three counts of battery by a prisoner for assaulting correctional officers. He pleaded no contest to one count and received a sentence of four years initial confinement and three years extended supervision, to run consecutively with prior sentences.
In 2025, Crosby moved for sentence modification as a pro se appellant, raising two claimed “new factors” under Wisconsin law. First, he argued that at sentencing all parties believed his release date for prior sentences was May 2026, when it was actually 2029. Second, he contended the court was unaware of the seriousness of his mental illness and that he had been civilly committed as a result of facts underlying the offense. Crosby also referenced his rehabilitative progress in prison.
The Court’s Holding
The Wisconsin Court of Appeals affirmed the circuit court’s denial of both the motion for sentence modification and the subsequent motion for reconsideration. The court held that Crosby failed to establish either a “new factor” or sentencing based on inaccurate information under controlling law.
On the release date issue, the court found no new factor existed because the release date was not “highly relevant to the imposition of sentence.” Although the prosecutor and defense counsel had mentioned a 2026 release date at sentencing, the circuit court’s record showed it did not mention or rely on that date when imposing sentence. Instead, the court explicitly based its decision on the seriousness of the offense, the need to protect the public, and Crosby’s character and rehabilitative needs.
Regarding mental illness, the court found Crosby failed to show by clear and convincing evidence that mental health information was inaccurate or that the court relied on it at sentencing. The record demonstrated extensive mental health evidence was presented: the prosecutor detailed Crosby’s antisocial personality disorder diagnosis, and defense counsel presented two NGI evaluations and discussed multiple diagnoses including schizophrenia spectrum disorder, PTSD, and ADHD. However, the circuit court explicitly determined that Crosby’s mental health issues were not a mitigating factor, stating it could not “give him a pass” based on mental health conditions and expressing doubt the sentence would have rehabilitative effect. Thus mental illness was not highly relevant to sentencing.
Key Takeaways
- A “new factor” for sentence modification must be not only unknown at sentencing but also “highly relevant to the imposition of sentence”—mere factual mistakes do not qualify if the court did not actually consider them.
- Defendants claiming resentencing based on inaccurate information must show by clear and convincing evidence both that information was inaccurate and that the trial court actually relied on it at sentencing.
- Mental health issues discussed at sentencing do not become “new factors” simply because the defendant later wishes they had received more weight; what matters is whether they were actually relevant to and relied upon by the sentencing court.
Why It Matters
This decision reinforces the stringent standards Wisconsin courts apply to sentence modification motions. The opinion makes clear that a trial court’s contemporaneous statements about which factors did and did not influence its sentencing decision are controlling. Even substantial factual errors at sentencing—such as a three-year discrepancy in a release date or omission of details about civil commitment—will not support modification if the record shows the court did not actually rely on those factors.
The holding also clarifies that rehabilitative progress achieved after sentencing is not a “new factor,” as established precedent holds. Pro se appellants and those raising sentence modification claims must focus on factors the trial court demonstrably considered and relied upon, not on information that surfaces later or that the defendant wishes had received greater weight.