COURT OF APPEALS DECISION DATED AND FILED January 15, 2008 David R. Schanker 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of
Plaintiff-Respondent, v. James A. Graham,
Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. James A. Graham, pro se, appeals from an order denying his Wis. Stat. § 973.13 (2005-06) motion to cure excessive sentences and from an order denying his motion for reconsideration. Graham moved for sentence commutation on the ground that his sentences exceed the maximum penalties for the crimes that are reflected on his original judgment of conviction, namely, robbery and attempted robbery. The court determined that the judgment of conviction misstated the verdict and that Graham’s sentences are within the lawful maximum for his actual convictions of armed robbery by threat of force and attempted armed robbery by threat of force. The court denied Graham’s motions and ordered the clerk of courts to correct the judgment of conviction. We affirm the circuit court’s orders. Additionally, because the clerk of courts has twice tried and twice failed to correct the judgment of conviction, we direct the circuit court to supervise the clerk of court’s preparation and entry of an amended judgment. Last, we deny as procedurally barred Graham’s claim that the evidence at trial was insufficient to support his convictions.
Background
¶2 A jury found Graham guilty of armed robbery by threat of force, in violation of Wis. Stat. §§ 943.32(1)(b) and 943.32(2) (2001-02),[1] and of attempted armed robbery by threat of force, in violation of Wis. Stat. §§ 943.32(1)(b), 943.32(2), and 939.32. Upon those verdicts, the court adjudged Graham convicted of armed robbery by threat of force and of attempted armed robbery by threat of force. Because both crimes were committed in October 2002, each was a Class B felony. See § 943.32(2).[2] Graham faced potential maximum determinate sentences of sixty years for the armed robbery conviction and thirty years for the attempted armed robbery conviction. See Wis. Stat. §§ 939.50(3)(b), 939.32(1). On July 23, 2003, the circuit court imposed consecutive determinate sentences of twenty-six years and three months for the armed robbery conviction and twenty-five years for the attempted armed robbery conviction.
¶3 Graham pursued postconviction relief from his conviction for
armed robbery pursuant to Wis. Stat. Rule
809.30. He alleged a miscarriage of
justice based on the vagaries of eyewitness identifications. His appeal was not successful.
¶4 In March 2007, Graham filed a motion for sentence commutation. In support, he pointed to the judgment of conviction entered in July 2003. Apparently unnoticed for four years, the judgment wrongly stated that Graham was convicted of two Class C felonies: (1) robbery with threat of force and by use of a dangerous weapon; and (2) attempted robbery with threat of force and by use of a dangerous weapon. Graham argued that his sentences must be commuted because they exceed the statutory maximums for these offenses.
¶5 The circuit court denied the motion.[3] It found that Graham had been convicted of two Class B felonies but that the judgment of conviction inaccurately reflected the verdicts. The court ordered the clerk of courts to enter an amended judgment of conviction correctly reflecting Graham’s convictions for armed robbery by threat of force and attempted armed robbery by threat of force.
¶6 On March 21, 2007, a court clerk signed an amended judgment of conviction. That judgment, like the original judgment, erroneously stated that Graham had been convicted of robbery and attempted robbery instead of armed robbery and attempted armed robbery. Graham moved for reconsideration, again asserting that his sentences are illegal. On April 17, 2007, the court denied the motion and ordered the clerk of courts to enter a second amended judgment of conviction. The court’s order stated with specificity Graham’s crimes and the statutes he violated. On April 25, 2007, a court clerk signed a third erroneous judgment of conviction. This appeal followed.
Discussion
¶7 The original judgment of conviction erroneously showed that
Graham was convicted of two Class C felonies.
These errors are clerical. A clerical
error is “a mere omission to preserve
of record, correctly in all respects, the actual decision of the
court ….” Bostwick v. Van Vleck, 106
¶8 The circuit court twice ordered the clerk of courts to
correct the judgment. See State v. Prihoda, 2000 WI 123, ¶17,
239
¶9 Graham raises a second issue, contending that the State
presented insufficient evidence to convict him of possessing a dangerous
weapon. Graham failed to raise this
issue in his direct appeal. Any postconviction
claim that could have been raised in a prior proceeding is barred in a
subsequent proceeding, absent the defendant demonstrating a sufficient reason
for the failure to raise the issue in the first appeal. State v. Escalona-Naranjo, 185
By the Court.—Orders
affirmed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).
[1] All further references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] Amendments to the penalty provisions of the applicable statutes effected by 2001 Wis. Act 109 first applied to offenses committed on February 1, 2003. See id., §§ 9359(3), 9459(1). See also State v. Thums, 2006 WI App 173, ¶¶6 & n.1, 11, 295 Wis. 2d 664, 721 N.W.2d 729.
[3] The Honorable Jean W. DiMotto presided over Graham’s trial and sentencing. The Honorable Dennis P. Moroney presided over Graham’s postconviction motion.