¶ 23. (dissenting). I conclude that the trial court applied a standard of law that our supreme court has withdrawn. I also conclude that McDermott has alleged facts which constitute a new *333factor under the correct standard. Thus, I would reverse and remand for a hearing.
¶ 24. To obtain modification of sentence, a defendant must establish the existence of a "new factor" which was unknown to, or overlooked by, the trial court at the time of sentencing. See State v. Stafford, 2003 WI App 138, ¶¶ 12-13, 265 Wis. 2d 886, 667 N.W.2d 370. Initially our supreme court defined a "new factor" in Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975), 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[.]" Id. at 288. Later, in State v. Michels, 150 Wis. 2d 94, 441 N.W.2d 278 (Ct. App. 1989), we described the Rosado definition as limited to "situations where the new factor frustrates the purpose of the original sentencing." Michels, 150 Wis. 2d at 97. In State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828, however, our supreme court withdrew the Michels language, and explained "that frustration of the purpose of the original sentence is not an independent requirement when determining whether a fact or set of facts alleged by a defendant constitutes a new factor." Harbor, 333 Wis. 2d 53, ¶¶ 48, 52.
¶ 25. The State argued to the trial court in its Brief Opposing Defendant's Motion for Sentence Modification, that "[t]he defendant's program participation does not frustrate the purpose of the original sentencing" and that "[likewise, adolescent brain research ... does not frustrate the purpose of the original sentence." (Emphasis added.) The trial court adopted the State's brief as its decision on the defendant's motion, thereby finding that the new factors alleged did not frustrate the purpose of the original sentencing. Because the definition of "new factor" that was relied upon by the State and the trial *334court has been withdrawn by our supreme court, the trial court relied on an incorrect legal definition.
¶ 26. As the Harbor court explained: "[w]hether a fact or set of facts presented by the defendant constitutes a 'new factor' is a question of law." Id., 333 Wis. 2d 53, ¶ 33 (citation omitted). "We review questions of law independently of the determinations rendered by the [trial] court." Id. "The existence of a new factor does not automatically entitle the defendant to sentence modification .... Rather, if a new factor is present, the [trial] court determines whether that new factor justifies modification of the sentence .... In making that determination, the [trial] court exercises its discretion." Id., ¶ 37.
¶ 27. McDermott's efforts while in prison to deter at-risk youth from lives of crime is positive, even exemplary, behavior. However, I agree with the Majority that under existing law we cannot say as a matter of law that such exemplary behavior in prison constitutes a new factor in the context of a motion for sentence modification.
¶ 28. I part from the Majority, however, on the question of whether scientific research confirming that portions of the adolescent brain are not fully developed is a new factor highly relevant to the sentence imposed here. The Majority, like the State, observes that we all know from experience that adolescents often demonstrate amazingly poor judgment, and therefore concludes that no new facts are being offered here. See Majority, ¶¶ 17-22. I disagree. What is offered here is the assertion — supported at this time only by documents discussing such facts — that scientists can now physically measure the degree to which various portions of the brain have developed at various ages and can relate that development to specific brain functions.
*335¶ 29. Because McDermott's judgment at the time of his crime, when he had recently passed his eighteenth birthday, was not merely poor but could be described as abysmal, the trial court was rightly concerned with whether it would ever be safe to even consider releasing him into society. However, the technology now available, which allows measurement of brain segment development, and scientific explanations of behavioral changes based on brain development, are relevant to both the protection of the community and the defendant's character and rehabilitation needs. Had this information been available to the trial court, it is reasonably probable that the trial court would have considered such information in setting a date for parole eligibility.
¶ 30. For the reasons explained above, I conclude that McDermott has made a sufficient showing of a new factor relevant to the imposition of sentence to entitle him to the opportunity to prove by clear and convincing evidence that the new factor should result in modification of his parole date. I would remand to the trial court for a hearing on the issue.