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COURT OF APPEALS DECISION DATED AND FILED August 19, 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Calvin Eleby, Jr., Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Calvin Eleby, Jr., appeals from
an order summarily denying his motion for sentence modification. We conclude that Eleby’s status on extended
supervision, which renders him ineligible for certification as a teacher in the
¶2 Eleby, a former lawyer, pled guilty to two counts of theft in
a business setting, in violation of Wis.
Stat. § 943.20(1)(b) (2001-02), for misappropriating clients’ funds
for his own use. The trial court imposed
two four-year concurrent sentences, comprised of one- and three-year respective
concurrent periods of initial confinement and extended supervision. After being released from prison to extended
supervision, Eleby sought certification as a teacher in the
¶3 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.”
State v. Franklin,
148
Whether a new factor exists is a question of law, which we review de novo. The existence of a new factor does not, however, automatically entitle the defendant to relief. The question of whether the sentence warrants modification is left to the discretion of the [trial] court.
State v.
¶4 Eleby contends that his status on extended supervision is a
prohibitive factor in his obtaining the employment necessary to pay the
restitution ordered. As such, Eleby
contends that his extended supervision is frustrating the purpose of the
original sentence, which was restitution.
Incident to that contention, Eleby reminded the trial court that he had
been teaching in the
¶5 The trial court disagreed, ruling that the purposes of the original sentence were “punishment and deterrence. The defendant’s inability to obtain employment as a substitute teacher does not frustrate th[at] purpose … and thus, he has not set forth a new factor. Further, the court perceives no reason why the defendant cannot obtain employment in some other field.”
¶6 Although the trial court was mindful that it was imposing approximately $41,000 in restitution to be paid during a four-year sentence, the purposes of the sentence were punishment and deterrence. The term of extended supervision was three times the length of the term of initial confinement because the trial court recognized that Eleby was “a high character guy in spite of what he did.” The trial court was concerned with how Eleby “disgrace[d]” himself, his family, his friends, and the legal profession; however, it was mindful that he was a man of “strong character,” who “has taken steps to right a wrong or a number of wrongs,” and who would likely become “a very big asset to the community in the future.” At the conclusion of the hearing, the trial court merely mentioned that Eleby would have four years to pay restitution. The transcript of the trial court’s sentencing remarks does not support his contention that the principal purpose of the sentence structure was to allow the payment of restitution.
¶7 We recognize that Eleby’s employment and correlative plans to
pay restitution have not developed as he had expected. Reducing his sentence however, to comply with
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.