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COURT OF APPEALS
DECISION
DATED AND FILED
February 26, 2008
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.
Corey Griffin,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: jeffrey
a. wagner, Judge. Affirmed.
Before Wedemeyer, Fine and Kessler, JJ.
¶1 PER CURIAM. In 1996, Corey Griffin was
convicted of first-degree reckless homicide as a party to a crime. The circuit court imposed a forty-year prison
sentence. Since that time, Griffin has repeatedly
and unsuccessfully pursued postconviction relief. He now appeals pro se from a 2006 circuit court order denying his motion seeking
sentence modification ostensibly based on “new factors.” On appeal, Griffin
argues that the circuit court improperly denied his motion, which presented
information that Griffin
claims established that he could not have fired the fatal shot. We conclude that Griffin’s
appeal is procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82,
517 N.W.2d 157 (1994) (claims that the defendant could have raised in a direct
appeal or in a previous Wis. Stat. § 974.06
(2005-06)
motion are barred from being raised in a subsequent § 974.06 motion absent a
showing of a sufficient reason for why the claims were not raised on direct
appeal or in a previous § 974.06 motion).
We also conclude that Griffin’s
argument is meritless because he did not present the circuit court with any
“new factors” that warranted sentence modification.
¶2 Griffin
was charged with first-degree reckless homicide, party to a crime, in the
shooting death of Lamont Richardson. Richardson’s death occurred during a gunfight that erupted
after Griffin and two other men accused Richardson of stealing
tire rims. It is undisputed that Griffin had been given a
loaded shotgun before the fight and that he fired the shotgun twice during the
incident. It also appears undisputed
that Griffin
was the only person armed with a shotgun, but did not know how the gun was
loaded. Other weapons were also fired
during the incident, and police recovered numerous shell casings from the
scene, including a Winchester Super X-00 shotgun shell casing and a shotgun wad
inconsistent with those normally loaded in that particular Winchester
shell. A number of pieces of
copper-plated lead shot were recovered from Richardson’s head.
¶3 Since 1997, Griffin
has sought postconviction relief by attempting to demonstrate that he could not
have fired the fatal shot. Griffin’s attempts have been based on research that he
claims demonstrates Winchester
never manufactured its Super X-00 shotgun shells with copper-plated lead
shot. In a prior postconviction motion
and appeal, Griffin sought plea withdrawal based
on a claim of ineffective assistance of counsel on the ground that trial
counsel should have discovered that information, which Griffin claimed was exculpatory. In an opinion released July 15, 2002, this
court affirmed the circuit court’s denial of that motion, reasoning that Griffin had not
demonstrated a manifest injustice warranting plea withdrawal. We noted:
[T]he possibility that another
shotgun was fired during the incident was raised by Griffin before sentencing. A pre-sentencing memorandum filed with the
court by Griffin pointed to the different type of shotgun wad found at the
scene and suggested that the fatal shot was not fired by Griffin but rather
from an unknown passing car. In light of
that suggestion, the court asked Griffin’s trial
counsel whether Griffin
intended to challenge the factual basis for the plea. Counsel replied that [Griffin] was not doing so, and specifically
noted that “you can shoot two different wads out of the same gun” and that
“Corey didn’t load the gun.”
¶4 On the basis of this information, the court rejected Griffin’s
argument because: (1) the difference
between the recovered casing and the recovered wad did not prove that two
shotguns had been used because: (a)
Griffin did not load his weapon, and (b) two different types of ammunition
could have been used in the gun; and (2) there was no evidence that the
recovered casing had held the pellets retrieved from Richardson’s body. Consequently, this court reasoned that
“further detail about the kind of ammunition manufactured by Winchester
does nothing to dilute Griffin’s admission,
arising from his plea, that he fired the shot that killed Richardson.”
¶5 Despite this ruling, Griffin
filed the postconviction motion that is the subject of this appeal, claiming
that the same information regarding the casing and the copper-plated pellets
constituted a “new factor” warranting sentence modification. In essence, he argued that because the
“evidence” comprised of his correspondence with Winchester and other shell manufacturers
demonstrated that he could not have fired the fatal shot, he should be
resentenced on the basis of this new and correct information.
¶6 The circuit court denied Griffin’s
motion, reasoning that the evidence provided by Griffin, which had been considered in his
prior postconviction motion, was neither a “new factor” for sentence
modification purposes nor “newly-discovered evidence” warranting plea
withdrawal. The court noted that to the
extent Griffin
was providing new arguments from the same evidence, he was barred from doing so
by Escalona-Naranjo. Griffin
appeals.
¶7 In order to obtain sentence modification based on a new
factor, a defendant must show that a new factor exists and that the new factor
warrants sentence modification. State
v. Crochiere, 2004 WI 78, ¶14, 273 Wis. 2d 57, 681 N.W.2d 524. A new factor is a fact or set of facts highly
relevant to sentencing, but not known to the sentencing judge either because it
was not then in existence or because it was in existence, but was unknowingly
overlooked by all of the parties. Rosado
v. State, 70 Wis. 2d
280, 288, 234 N.W.2d 69 (1975). To be a
new factor, the information or development must also “frustrate[] the purpose
of the original sentence.” Crochiere,
273 Wis. 2d
57, ¶14 (citation omitted).
¶8 As the State notes, the crux of Griffin’s
argument is that the Winchester letters
demonstrate that he did not fire the shot that killed Richardson and that he should not have been
sentenced as if he had been the shooter.
As this court noted in Griffin’s prior
appeal, however, the Winchester
letters do not undercut his admission at the plea hearing that he fired the
fatal shot. We reiterate: Griffin did
not load the weapon; the weapon could fire different types of ammunition and
therefore could have been loaded with different types of ammunition; Griffin fired a shotgun
twice; and there is no evidence that the fatal pellets came from the recovered
shell casing.
¶9 With the exception of the Winchester
letters, the evidence on which Griffin
establishes his “new factor” claim was known prior to sentencing. Even if the court were to concede—which we do
not—that the Winchester
letters represented a fact or set of facts highly relevant to sentencing, but
unknown at that time, they would not warrant sentence modification. The letters do not demonstrate that Griffin could not have fired the shot that killed Richardson. In addition, Griffin
was charged as a party to a crime and was culpable for Richardson’s death even if he could
demonstrate that he did not fire the fatal shot. Finally, we agree with the circuit court that
Griffin’s motion is susceptible to the Escalona-Naranjo
bar because Griffin
has demonstrated no reason, much less a sufficient reason, for his failure to
raise his “new” claims in his prior postconviction motion.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.