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COURT OF APPEALS DECISION DATED AND FILED May 24, 2005 Cornelia G. Clark Clerk of Court of Appeals |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from an order of the circuit court for Milwaukee County:� RICHARD J. SANKOVITZ, Judge.� Affirmed.�
����������� Before Wedemeyer, P.J., Curley and Kessler, JJ.�
�1����������������������� PER CURIAM. Carl J. Johnson, Jr., appeals from a circuit court order denying his motion for sentence modification.� Johnson requested sentence modification, arguing that an alleged change in parole policy constituted a new factor warranting such relief.� Johnson also argued that the change in parole policy violated the prohibition against ex post facto laws and the equal protection and due process clauses of the United States Constitution.� The circuit court denied the motion, concluding it was barred by State v. Escalona-Naranjo, 185 Wis. 2d 169, 178, 517 N.W.2d 157 (1994).� Because the circuit court properly concluded that Escalona barred Johnson�s motion to modify his sentence, we affirm the circuit court�s order.
�2����������������������� Johnson was convicted on February 16, 1988, of two counts of first-degree sexual assault, one count of false imprisonment, and one count of taking a hostage, all while armed with a dangerous weapon.� The circuit court subsequently sentenced Johnson to concurrent and consecutive sentences totaling forty-five years of imprisonment.
�3����������������������� In 1992, Johnson moved the court for sentence modification or a new trial.� One of his claims asserted that a change in parole policy implemented after he was sentenced adversely affected his eligibility for discretionary parole.� The circuit court denied the motion and Johnson appealed.� This court affirmed the circuit court�s order in an unpublished decision, State v. Johnson, No. 92-2023-CR, unpublished slip op. (Wis. Ct. App. May 4, 1993).� Our decision held that the circuit court had not erroneously exercised discretion at Johnson�s sentencing.� Id. at 4-5.� We also determined that a change in parole policy did not entitle Johnson to sentence modification unless parole policy was actually considered by the circuit court at Johnson�s sentencing hearing.� Id. at 6.� We concluded that the �record does not show that parole policy was a factor that the trial court considered when sentencing the defendant.� Thus, Johnson�s sentence will not be modified on that ground.�� Id.
�4����������������������� On November 26, 2003, Johnson again moved the circuit court for sentence modification.� Johnson argued that parole policy had changed again.� As proof of an alleged change in parole policy, Johnson pointed to a letter from former Governor Tommy G. Thompson to former Department of Corrections Secretary Michael J. Sullivan, instructing him to �pursue any and all available legal avenues to block the release of violent offenders who have reached their mandatory release date.�� The letter went on to state that �[t]he policy of this Administration is to keep violent offenders in prison as long as possible under the law.�� Johnson argued that this alleged change in parole policy amounted to a new factor under State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989), entitling him to resentencing.� He also contended that the letter amounted to a policy violating the prohibition against ex post facto laws.� Finally, Johnson also complained that he was treated differently from prisoners sentenced under �Truth in Sentencing� and that the sentences imposed on him were unduly harsh.
�5����������������������� The circuit court denied the motion in a written order entered December 12, 2003.� The circuit court rejected Johnson�s second and third claims, concluding that neither was actionable in the context of a motion for sentence modification.� The circuit court also rejected Johnson�s first claim, determining that the change in parole policy alleged by Johnson was not a new factor warranting resentencing because Johnson�s sentences were not premised on the sentencing court�s expectation that Johnson would be paroled prior to reaching his mandatory release date.� The circuit court relied on Franklin, 148 Wis. 2d at 14, where the Supreme Court wrote:� �The sentencing court did not sentence Franklin with the expectation that he would receive an early parole.� It sentenced Franklin with the goal of protecting society.� We conclude that a change in parole policy cannot be relevant to sentencing unless parole policy was actually considered by the circuit court.�� The circuit court rejected Johnson�s complaint that his sentences were too harsh on its merits.
�6����������������������� Johnson subsequently moved the court to reconsider its order.� The circuit court denied the motion on January 14, 2004.
�7����������������������� Undeterred, Johnson filed another motion for sentence modification on April 27, 2004.� The motion renewed Johnson�s contention that former Governor Thompson�s April 28, 1994, correspondence to former Secretary Sullivan amounted to a change in parole policy that constituted a new factor warranting his resentencing.� He also argued that the alleged change in parole policy violated the prohibition against ex post facto laws and the equal protection and due process clauses of the United States Constitution.
�8����������������������� The circuit court denied the motion, explaining:
On April 27, 2004, the defendant filed a second pro se motion to modify sentence after filing two separate motions to reconsider the court�s decision denying his first motion to modify sentence.� I already considered the defendant�s argument related to the change in parole policy and decline to revisit this issue.� Moreover, anything the defendant has set forth in his current motion could have been raised in his first motion.� To the extent that he did not raise an argument in his prior motion, the argument is deemed waived.� See State v. Escalona-Naranjo, 185 Wis.2d 169, 178 (1994) (defendant must raise all grounds for postconviction relief in his original motion or appeal).
This appeal followed.
�9����������������������� When a claim was raised in a prior motion for sentence modification, denied by the circuit court and not appealed, the claim may not be relitigated.� State v. Crockett, 2001 WI App 235, �12, 248 Wis. 2d 120, 635 N.W.2d 673.� It follows that Johnson may not raise claims that he raised in a prior motion for sentence modification.� To the extent that Johnson seeks to raise new issues supporting his request for sentence modification, the new claims are barred because Johnson failed to show a sufficient reason for not raising these arguments in his prior motion for sentence modification.� See Escalona-Naranjo, 185 Wis. 2d at 181-82.
�10����������������������� Even if Johnson�s arguments regarding the alleged change in parole policy were cognizable, we would reject them.� A change in parole policy �cannot be relevant to sentencing unless parole policy was actually considered by the circuit court.�� Franklin, 148 Wis. 2d at 14.� This court and the circuit court have both previously concluded that nothing in the sentencing record shows that parole policy was a factor in the trial court�s calculus.� Our review of the sentencing transcript confirms the circuit court�s and our prior determinations.� It follows that the circuit court�s order denying Johnson�s current motion for sentence modification must be affirmed.
����������� By the Court.�Order affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.