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COURT OF APPEALS DECISION DATED AND FILED May 8, 2007 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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:� joseph r. wall, Judge.� Affirmed.�
����������� Before Wedemeyer, P.J., Fine and Kessler, JJ.
�1������� PER CURIAM. Curtis Ross appeals from the decision and order denying his motion for postconviction relief.� He argues that the circuit court erred when it concluded that his claim was barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).� Because we conclude that the circuit court did not err when it denied his motion, we affirm.
�2������� In 1998, Ross was convicted after a jury trial of possession of cocaine with intent to deliver as an habitual offender, and the court sentenced him to seventeen years in prison.� In 1999, Ross filed a motion for postconviction relief under Wis. Stat. Rule 809.30 (1997-98), which the circuit court denied.� This court affirmed the circuit court and the supreme court denied his petition for review.� In 2001, Ross filed a Wis. Stat. � 974.06 (1999-2000) motion.� The circuit court denied that motion because it raised issues beyond the scope of the statute and because it was barred by Escalona.� Ross appealed to this court but that appeal was dismissed for failure to prosecute.� In 2003, Ross filed another motion for postconviction relief.� Once again, the circuit court denied it, this court affirmed, and the supreme court denied his petition for review.
�3������� In 2006, Ross filed another postconviction motion that is the subject of this appeal.� In that motion, he challenged his sentence for the first time.� The circuit court denied the motion, finding that he had not raised a new factor that entitled him to relief, and that his other claims were barred by Escalona.
�4������� Ross argues that the circuit court erred when it denied his last motion because a motion to modify sentence cannot be barred by Escalona.� Ross, however, misstates the circuit court�s ruling. �Ross argued to the circuit court that there had been a change in the parole policy and this constituted a new factor.� The circuit court did consider whether Ross had stated a �new factor� that frustrated the original purpose of the sentence.� See State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278, 280 (Ct. App. 1989).� The circuit court, citing to State v. Franklin, 148 Wis. 2d 1, 14, 434 N.W.2d 609, 613 (1989), found that a change in parole policy cannot constitute a new factor unless the parole policy was considered by the sentencing court.� The circuit court reviewed the sentencing transcript and found that the sentencing court had not considered the parole policy when it sentenced Ross.� Consequently, the circuit court considered whether Ross had raised a new factor, and found that he had not.
�5������� Sentence modification involves a two-step process. �Franklin, 148 Wis. 2d at 8, 434 N.W.2d at 611 (1989).� The defendant must first show that there is a new factor that justifies the motion. �Id.
Whether a fact or set of facts constitutes a new factor
is a question of law which may be decided without deference to the lower court�s
determinations.� If a defendant has
demonstrated the existence of a new factor, then the circuit court must
undertake the second step in the modification process and determine whether the
new factor justifies modification of the sentence.� This determination is committed to the
circuit court�s discretion and will be reviewed under an abuse of discretion
standard.�
Id. (citations omitted).
�6������� We agree with the circuit court�s finding that the sentencing court did not consider parole policy when it sentenced Ross.� Consequently, a change in the parole policy cannot constitute a new factor.
�7������� Ross also argued to the circuit court that the sentencing court erroneously exercised its discretion when it sentenced him.� The circuit court concluded that Ross had many opportunities to raise this argument and had not done so.� We agree with the circuit court�s conclusion that this issue is barred by Escalona, 185 Wis. 2d at 185-186, 517 N.W.2d at 163-164.
�8������� Ross also argues that his right to equal protection has been violated by the different sentencing treatment of defendants under truth-in-sentencing.� Specifically, he argues that under the new law, Wis. Stat. � 973.195(1r)(b)1 (2003-04), defendants may petition for sentence modification based on rehabilitation, education, and treatment while in prison.� Under the old law, however, the defendant�s progress and rehabilitation in prison are not new factors warranting sentence modification.� See State v. Kaster, 148 Wis. 2d 789, 804, 436 N.W.2d 891, 897 (Ct. App. 1989).� He was sentenced under the old law.
�9������� We agree with the State that Ross has not stated a violation of his right to equal protection.� There is a rational relationship to a legitimate state interest for the difference in the sentencing schemes.� Under the old sentencing law, a person�s progress in prison was a factor to be considered by the parole board when making a parole determination.� See State v. Kluck, 210 Wis. 2d 1, 8, 563 N.W.2d 468, 471 (1997).� Because this was a consideration for the parole board, the court did not need to recognize it as a new factor.� Under the new law, parole no longer exists.� Consequently, the legislature created a new mechanism by which defendants could benefit from rehabilitative and other programs while in prison.� Because there is a rational reason for the difference in the two schemes, the State has not violated Ross�s equal protection rights.� For the reasons stated, we affirm the order of the circuit court.
����������� By the Court.�Order affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5 (2005-06).