COURT OF APPEALS
DECISION
DATED AND FILED
December 4, 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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Phillip M. Hudson,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: timothy
g. dugan, Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 PER CURIAM. Phillip Hudson appeals
from an order denying his motion for sentence modification. Hudson
argues that he has identified a new factor that entitles him to be
resentenced. Because we conclude that
his claim is barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 185-86, 517
N.W.2d 157 (1994), we affirm.
¶2 Hudson
pled guilty to one count of armed robbery in 2000. His sentence was withheld and he was placed
on five years of probation. His
probation was revoked in 2002 for drug use, absconding from probation, failure
to pay court ordered obligations, punching a person, and subsequent charges of
disorderly conduct, battery, and resisting/obstructing an officer. The court sentenced him to ten years in
prison out of a possible maximum of forty years.
¶3 In 2004, Hudson
filed his first motion for postconviction relief, arguing that a ten-year
sentence after a five-year probationary period constituted double
jeopardy. The circuit denied the motion.
Hudson
appealed and we affirmed.
¶4 In November 2006, Hudson
filed a second postconviction motion for sentence modification. In this motion, he argued that the Division
of Hearings and Appeals lost jurisdiction to revoke his probation because it
did not hold his hearing within fifty days. He also argued that this rule violation
constituted a new factor that entitled him to be resentenced.
¶5 The circuit court again denied his motion. The circuit court found that the
administrative law judge had addressed this issue in the decision on his
revocation proceeding. Hudson could have appealed this decision by
petitioning the circuit court for a writ of certiorari. He did not, and therefore waived the
issue. The court also found that the law
on which Hudson
relied was in existence at the time he was sentenced after revocation, and
consequently was not a new factor.
Further, the court found that even if his argument was valid, he could
have raised it in his prior postconviction motion.
¶6 Hudson
renews his arguments to this court. In Escalona-Naranjo,
185 Wis. 2d
at 185, the supreme court stated:
We need finality in our litigation. Section 974.06(4) compels a prisoner to raise
all grounds regarding postconviction relief in his or her original,
supplemental or amended motion.
Successive motions and appeals, which all could have been brought at the
same time, run counter to the design and purpose of the legislation.
¶7 A defendant must raise all grounds of relief in his original,
supplemental, or amended motion for postconviction relief. Id. at
181. If a defendant’s grounds for relief
have been finally adjudicated, waived or not raised in a prior postconviction
motion, they may not become the basis for a new postconviction motion, unless he
or she establishes a sufficient reason for failing to raise the issue in the
original motion. Id. at 181-82.
¶8 We conclude that Hudson
could have raised this issue either on appeal from the revocation decision or
in his original postconviction motion.
His reason for failing to raise it before is that he was not aware of
the law at the time he brought the first motion. This is not a sufficient reason for failing
to raise it then. Because he did not
raise the issue in his original postconviction motion, he is barred by Escalona-Naranjo
from raising it now.
¶9 We also reject his argument that it constitutes a new
factor. A new factor is “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, 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). 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 determination. State v. Hegwood, 113 Wis. 2d 544,
547, 335 N.W.2d 399 (1983). The case on
which Hudson
relies was in existence at the time his probation was revoked. Even if Hudson’s
argument is correct on the law, and we are not deciding that it is, he has not
established that the circuit court “unknowingly overlooked” this case. Further, the issue was addressed by the
administrative law judge in her decision.
Hudson
has not established the existence of a new factor.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
(2005-06).