(concurring). I concur with the majority's holding that "the Fifth Amendment privilege against self-incrimination extends beyond sentencing as long as a defendant has a real and appre-*99dable fear of further incrimination as may be the case where an appeal is pending [or] before an appeal as of right or plea withdrawal has expired ..Majority op. at 95-96. However, whether or not that privilege extends to Meyer in this case requires further inquiry by the circuit court to determine if he in fact filed an appeal or, in the alternative, if he made a good-faith expression of an intent to withdraw his guilty plea in a timely manner. If Meyer merely intended to file a motion to modify sentence sometime in the future, without also challenging the grounds for his conviction, he was not entitled to protection under the Fifth Amendment.
The Fifth Amendment privilege against self-incrimination "is one of the cornerstones of the American constitutional system of criminal procedure and must be liberally construed to achieve its protective purpose." United States v. Pardo, 636 F.2d 535, 542 (D.C. Cir. 1980) (citing Maness v. Meyers, 419 U.S. 449, 461 (1975)). However, "the privilege has no application beyond that 'protective purpose.'" Id. Accordingly,
[ t]he interdiction of the Fifth Amendment operates only where a witness is asked to incriminate himself — in other words, to give testimony which may possibly expose him to a criminal charge. But if the criminality has already been taken away, the Amendment ceases to apply.
Hale v. Henkel, 201 U.S. 43, 67 (1906). The privilege, therefore, does not extend to a witness who "has been convicted of [an] offense with respect to which he fears incrimination." Pardo, 636 F.2d at 543; see also E. R. Soeffing, Annotation, "Plea of Guilty or Conviction as Resulting in Loss, of Privilege Against Self-Incrimination as to Crime in Question," 9 A.L.R.3d 990 (1966). In *100light of these standards, I do not believe that the Fifth Amendment affords protection against compelled testimony about a crime for which the witness has been convicted and sentenced and has either exhausted appellate rights or has decided not to pursue them.
The scope of the Fifth Amendment privilege against self-incrimination was described in State v. McConnohie, 121 Wis. 2d 57, 358 N.W.2d 256 (1984), wherein the court considered whether a defendant was denied his Sixth Amendment right to compulsory process when the trial court upheld the Fifth Amendment privilege claim of a witness who had been convicted but not sentenced for being a party to the crime for which the defendant was being tried. Id. at 63. The court held that at the time the witness was called to. testify, his Fifth Amendment privilege was still available because even though the witness had been convicted of being party to the crime for which the defendant was being tried, the privilege continued until the time of sentencing. Id.
In this case, however, the majority improperly extends the scope of the Fifth Amendment privilege for the following reasons. First, the majority states that the rationale of McConnohie compels the conclusion "that a witness may 'reasonably and appreciably' fear incrimination if he or she expresses a good faith intent to or is in the process of moving to modify his or her sentence." Majority op. at 93. The majority reaches that conclusion by relying on the following statement in McConnohie: "There was a potential danger to [the witness who is between a guilty plea and sentencing] of an increased sentence resulting from his own testimony." McConnohie, 121 Wis. 2d at 66. This statement, however, does not accurately reflect the court's holding in McConnohie. Rather, the court clearly concluded *101that a witness who has entered a guilty plea to a criminal charge retains his Fifth Amendment privilege until the time of sentencing because
[ i]n Wisconsin, a defendant may withdraw his guilty plea prior to sentencing for any 'fair and just reason.'... Incriminating statements by the [defendant who has pled no contest or entered a guilty plea] may affect the discretionary determination of the trial court as to the existence of a fair and just reason to withdraw the plea. . . . [The] testimony could, as a practical matter, make a defendant's guilty plea or no contest plea irrevocable. We agree ... that this amounts to self-incrimination.
Id. at 68 (citation omitted). By holding as it has, however, the majority in this case has substantially extended dicta from McConnohie to now hold that a witness who has already been sentenced retains protection under the Fifth Amendment if the witness simply expresses a future good-faith intent to file a motion to modify sentence. However, the majority can cite no authority for such a holding, and I believe that such a conclusion extends the Fifth Amendment privilege far beyond what was envisioned by the McConnohie court.1
Second, Meyer was convicted and sentenced before he was called as a witness in this case. If Meyer had been asked to testify prior to his own sentencing, he would have had a right to invoke the protections of the *102Fifth Amendment. Further, that protection would have continued after sentencing if Meyer had retained the common law right to withdraw his guilty plea or had made a good-faith expression of an intent to do so. State v. Harris, 92 Wis. 2d 836, 847, 285 N.W.2d 917 (Ct. App. 1979); see also State v. Anastas, 107 Wis. 2d 270, 274, 320 N.W.2d 15 (Ct. App. 1982) (the right against self-incrimination continues throughout the appeals process).
Finally, even if Meyer filed a motion to modify his sentence for the burglary conviction, an increased sentence for that crime could not be the result. Distinct from a sentencing hearing, the judge at a hearing on a motion to modify sentence considers the legality and appropriateness of the sentence imposed. See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989); see also §§809.30(2) and 973.19, Stats. A circuit court must decide whether a defendant can show the existence of a "new factor"2 which 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 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). The only focus at a motion to modify sentence hearing is whether the sentence ought to be reduced because of the introduction of a "new factor." Unlike the situation faced by the witness in McConnohie, Meyer did not confront the "potential danger ... of an increased sentence resulting from his *103own testimony." McConnohie, 121 Wis. 2d at 66 (quoted in majority op. at 92).
I conclude that Meyer's guilty plea, subsequent conviction, and sentencing foreclose his invocation of the Fifth Amendment privilege, unless the state establishes that (1) an appeal of his conviction has been filed or (2) Meyer expressed a good-faith intent to timely file a motion to withdraw his guilty plea. Without that proof, the circuit court should have compelled Meyer's testimony.
I am authorized to state that Justices SHIRLEY S. Abrahamson and Jon P. Wilcox join this concurring opinion.
For example, the majority's expansion of the scope of the Fifth Amendment could easily lead to the following result: a witness who has been previously convicted and sentenced for a crime may claim the privilege and refuse to testify about a crime because the witness intends to seek a governor's pardon at what he or she perceives to be an opportune time.
Franklin, 148 Wis. 2d at 8.