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COURT OF APPEALS DECISION DATED AND RELEASED September 25, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0926-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CURTIS L. GOLSTON,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Kenosha County:
BARBARA A. KLUKA, Judge. Affirmed.
SNYDER, J. Curtis
L. Golston appeals from a trial court order denying his pro se motion for
sentence modification.[1] Golston raises a number of legal issues
challenging the imposition of sentence, including: (1) a statutory time bar to the filing of the complaint; (2) that
the criminal complaint was invalid because he was in prison when the complaint
was made; (3) that the trial court's denial of a substitution of judge “forced”
him to plead no contest; (4) that the trial court relied on improper factors when
it considered certain information contained in the presentence report; (5) that
he was improperly sentenced as a repeater;
and (6) that he was advised by a correctional facility social worker
that he could send a letter to his former wife and therefore did not knowingly
violate the injunction. Because we
conclude that the first five issues are not properly brought under a request
for sentence modification, and that the final issue is not a new factor within
the meaning of Rosado v. State, 70 Wis.2d 280, 234 N.W.2d 69
(1975), we affirm the trial court.
The procedural status of
the case is key to understanding this appeal.[2] Golston was convicted of two counts of
violating a restraining order.[3] Following his convictions, Golston filed a
notice of intent to pursue postconviction relief and was appointed
counsel. With the assistance of
counsel, Golston has pursued various claims for postconviction relief. However, during the pendency of those
proceedings, Golston himself has filed several pro se motions requesting sentence
modification. The most recent of
Golston's pro se motions for sentence modification is the subject of this
appeal.
On January 19, 1996,
while Golston was awaiting the trial court's decision on a motion for
postconviction relief filed by appellate
counsel, Golston filed a pro se “MOTION FOR RECONSIDERATION OF POSTCONVICTION
RELIEF BASED ON NEW FACTORS” with this court.
We directed this motion to the attention of his appellate counsel. On February 9, 1996, Golston filed an
amended motion for sentence modification, again directed to this court. The resulting order from this court stated
that such motions were properly directed to the trial court. After the trial court denied Golston's
subsequent pro se motion, concluding that it presented no new factors for
consideration, this appeal followed.
There are three bases
upon which an individual can seek sentence modification. Under § 973.19(1)(a), Stats., a person who does not seek to
appeal any other issue can make a motion to the trial court for a modification
of sentence. See
§ 973.19(5). If, however, an
individual has other issues to raise in an appeal, § 973.19(1)(b) requires
that the request for sentence modification be brought under § 809.30(2)(h), Stats.
The request for sentence modification then becomes a part of the
individual's request for postconviction relief and/or any subsequent appeal.
The only other means of
seeking sentence modification is through the demonstration of a new
factor. See State v.
Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609, 611 (1989). A trial court may, in its discretion, modify
a criminal sentence based upon a showing of a new factor. State v. Michels, 150 Wis.2d
94, 96, 441 N.W.2d 278, 279 (Ct. App. 1989).
Whether a set of facts is a new factor is a question of law which we
review without deference to the trial court.
Id. at 97, 441 N.W.2d at 279.
A new factor is a fact,
or a set of facts, highly relevant to the sentence imposed, but not known by
the judge at the time of sentencing, either because it was not then in
existence or because it was unknowingly overlooked by all of the parties. Rosado, 70 Wis.2d at 288, 234
N.W.2d at 73. If the defendant
successfully demonstrates the existence of a new factor, the court must then
determine whether the new factor justifies modification of the sentence. See Michels, 150 Wis.2d
at 96-97, 441 N.W.2d at 278. This
determination is committed to the discretion of the circuit court. Id. at 97, 441 N.W.2d at 278.
An examination of the
challenges Golston presents reveals that only one need be considered under the
new factor test. The other issues, as
we understand them, all ask the court to correct his sentence because of due
process violations or that the sentence imposed was in violation of the law. These issues are governed by § 974.06, Stats., not by the new factor
test. See State v.
Coolidge, 173 Wis.2d 783, 788, 496 N.W.2d 701, 704‑05 (Ct. App.
1993).
As issues properly
raised under § 974.06, Stats.,
they are precluded by the fact that Golston currently has an appeal pending
before this court from the same case.
That appeal, filed by his appellate counsel, is No. 96‑0665‑CR‑NM. As we stated in State v. Redmond,
No. 94‑1544‑CR, slip op. at 11 (Wis. Ct. App. June 12, 1996,
ordered published July 29, 1996), “[T]he plain language of § 974.06, Stats., precludes a defendant from
bringing a motion for postconviction relief under that statutory section before
the conclusion of any proceedings related to a [pending appeal brought under §
974.02, Stats.].” Golston's pending appeal is brought under §
974.02, and thus the § 974.06 issues in this appeal are subject to the Redmond
bar.
The single remaining
issue Golston brings before this court is his claim that the testimony of a
social worker would exonerate him of the charged violation. According to Golston, a social worker at the
Racine Correctional Institution gave him permission to write to his wife, and
therefore, he did not knowingly violate the restraining order. Golston claims that he inquired whether he
could write the letter “because I wasn't sure if the restraining order was
still in effect ... and Mr. Feldman told me that he could think of [no] reasons
why I couldn't.”
The trial court
determined that this information failed to satisfy the new factor test under Rosado. We agree.
This evidence was in existence both at the time of trial and at
sentencing. Golston himself testified
as to this issue at trial:
I wasn't for certain that the injunction
was still in effect. I knew that she had
taken out a restraining order, but at the time I wrote, I didn't know whether
the restraining order was still in effect because of her visit to the
institution. That gave me the
impression ... since they allowed her to come in and visit me, that perhaps
there was no more injunction.
While
the social worker did not testify at trial, Golston's testimony at trial
clearly indicates that he submitted this as an issue through his
testimony. The trial court was aware
that Golston was confused as to whether the injunction was still in
effect. The presentation of additional
evidence relating to this is not a new factor under Rosado.
We affirm the trial
court's denial of Golston's motion for sentence modification. We conclude that Golston is barred from
raising issues that are properly brought through a § 974.06, Stats., motion during the pendency of
an appeal. Furthermore, the testimony
of the social worker does not satisfy the new factor requirements of Rosado.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Golston currently has another appeal pending in this case, No. 96-0655-CR-NM, filed by appellate counsel, which is taken from two judgments of conviction and an order denying postconviction relief.
[2] The record filed in this appeal consisted of Golston's pro se motion for sentence modification, the trial court's denial of that motion and the notice of appeal. Because this motion must be addressed within the context of the entire case, we have reviewed the record of No. 96‑0655-CR-NM, and we take judicial notice of that record.