Aug. 4, 2024 – Evidence of new treatment for post-traumatic stress disorder (PTSD) is a new and highly relevant sentencing factor for a defendant convicted of homicide, the Wisconsin Court of Appeals (District IV) has held in State v. Schueller, 2023AP1755 (June 20, 2024).

Robert Schueller served in the U.S. military in Vietnam. He was diagnosed with PTSD in the 1980s.

In 2004, Schueller shot and killed a man during a fight in the parking lot of a tavern in Arpin, in Wood County. Schueller was drunk at the time.

The Wood County District Attorney charged Schueller with first-degree intentional homicide. Schueller entered a no-contest plea to an amended count of second-degree intentional homicide.

Dueling PSI Reports

The pre-sentence investigation report (PSI) noted that a doctor had reaffirmed Schueller’s PTSD diagnosis.

The PSI mentioned two reports, one made by Dr. Ralph Baker and one made by Michael Nelson, Ph.D., a psychologist.

Baker and Nelson agreed that Schueller had PTSD and that PTSD symptoms include explosive emotional outbursts and exaggerated responses to threats. But they disagreed on whether Schueller’s PTSD should mitigate his culpability for the murder.

Neither the Baker or Nelson offered any opinion regarding treatments that might lessen or eliminate the symptoms of PTSD.

Regarding the protection of the public, the circuit court said that it was concerned about Schueller’s PTSD – something the court said Schueller would never be cured of.

The circuit court sentenced Schueller to 25 years in prison and 15 years of extended supervision.

Motion to Modify Sentence

In 2023, Schueller filed a post-conviction motion and asked the Wood County Circuit Court to modify his sentence.

Schueller claimed that a new treatment had proved to be effective at treating and even curing PTSD in veterans. The new treatment, Schueller argued, was a new factor that justified modifying his sentence.

Schueller attached to his motion an expert report written by Dr. Colin Mahoney.

Mahoney, who’d examined Schueller, wrote that a large share of veterans with PTSD who’d received cognitive processing therapy (CPT) and prolonged exposure therapy (PET) had experienced reduced symptoms, to the point they no longer met the diagnostic criteria for PTSD.

Mahoney cited research studies of CPT and PET, all of which were conducted after Schueller was sentenced.

The State opposed the motion and argued that Schueller failed to prove that the new facts were relevant to his sentence.

The circuit court concluded that the new facts were not relevant to Schueller’s sentence because the sentencing court had: 1) looked beyond Schueller’s PTSD when imposing the sentence; and 2) decided that the seriousness of the offense and Schueller’s punishment were the governing sentencing factors.

Schueller appealed.

New Factor?

Writing for a three-judge panel, Judge Rachael Graham explained that circuit courts have inherent authority to modify criminal sentences when a defendant shows the existence of a “new factor” – one or more highly relevant facts unknown to the trial judge at the time the original sentence was imposed because it didn’t exist or was overlooked by all parties.

Graham noted that the defendant must also show that the new factor justifies modifying his or her sentence.

Judge Graham concluded that Mahoney’s report contained a new set of facts that were unknown to the sentencing court.

“The report establishes that PTSD in veterans such as Schueller is now highly treatable, even curable, on an outpatient basis,” Graham wrote.

Factor is Relevant

Judge Graham also concluded that the new facts were relevant to Schueller’s sentence. She pointed out that in imposing the sentence, the trial judge had remarked that Schueller “would always have PTSD” and could not be cured.

“The sentencing court’s decision to impose 25 years of initial confinement and 15 years of extended supervision was directly tied to the court’s perception that Schueller’s PTSD could not be cured,” Graham wrote.

Judge Graham reasoned that the trial court may have imposed a lesser sentence if it knew of the existence of a treatment with the potential to reduce Schueller’s symptoms to the point that he no longer met the diagnostic criteria for PTSD.

The State argued that the new treatments were not relevant to Schueller’s sentence because the trial court relied upon protecting the public and punishment as the governing factors.

But that argument missed the mark, Graham concluded.

“That the court also considered the gravity of the offense does not undermine our conclusion that the court’s understanding about the effectiveness or ineffectiveness of treatment for PTSD played a significant role in its sentencing decision and was thus highly relevant to the imposition of Schueller’s sentence,” Judge Graham wrote.

More Than a New Opinion

The State also argued that new treatment recommendations for a disorder that was known at the time of sentencing amounted to only a new expert opinion about already known facts, and cited State v. Slagoski, 2001 WI App 112, 244 Wis. 2d 49, 629 N.W.2d 50, overruled in part by Harbor, 333 Wis. 2d 53.

But Graham noted that in Slagoski, the defendant hired a new expert after being sentenced, and the new expert submitted a report disagreeing with parts of a report filed by a previous expert.

Judge Graham pointed out that the Court of Appeals in Slagoksi turned aside the defendant’s argument because while the post-sentence report was new, it contained no new conclusion or facts.

That wasn’t the case with Mahoney’s report, Graham reasoned.

“Dr. Mahoney’s report alleges new facts about the existence of new PTSD treatments and their effectiveness, and it draws new conclusions about the treatability, and curability, of PTSD in veterans from those new facts, all of which were unknown to the sentencing court at sentencing and are highly relevant to the sentence imposed,” Judge Graham wrote.

The Court of Appeals reversed the circuit court’s and remanded the cause.

Graham wrote that the circuit court could either: 1) hold an evidentiary hearing to determine if Schueller had met his clear-and-convincing burden; or 2) exercise its discretion and conclude that modifying Schueller’s sentence was not warranted, despite the exist of new facts.