COURT OF APPEALS DECISION DATED AND FILED November 6, 2008 David R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT III |
|||
|
|
|||
|
|
|||
State of
Plaintiff-Respondent, v. Jason J. Faber,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from orders of the circuit court for
Before Dykman, Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Jason Faber appeals orders denying his motion to modify a fifty-year prison sentence imposed in 1996.[1] Faber contends that he presented the court with new factors that justified resentencing. We affirm.
¶2 Faber was convicted of the attempted first-degree intentional homicide of a police officer who interrupted a burglary that he was committing. He received a fifty-year prison sentence and was ordered to pay approximately $16,200 in restitution to victims of the burglaries he committed, an amount subsequently reduced to approximately $14,000. During the sentencing hearing, the court attributed to Faber discussions about “pursuing anarchy.”
¶3 Postconviction counsel for Faber filed a no-merit appeal, and a no-merit report to which Faber responded. We affirmed Faber’s conviction, concluding that he could not raise any meritorious issues in postconviction proceedings. Our opinion addressed Faber’s claim, in his response to the no-merit report, that the writer of the PSI report wrongly observed that Faber lacked remorse. Our opinion noted that Faber alleged no other inaccuracies in the report.
¶4 Faber’s motion for sentence modification alleged that he never read his PSI report until 1998, after the no-merit proceeding had concluded. He alleged that the PSI contained inaccurate information about his criminal record by greatly exaggerating the severity of his prior crimes, and falsely attributed to his accomplice, and presumably him, some inflammatory statements about anarchy and killing policemen. He also alleged that the $14,000 restitution amount was determined without giving him an opportunity to present evidence that a lower restitution amount was appropriate. He contended that the PSI errors and the restitution issue constituted new factors that justified a reduced sentence. The circuit court ordered a restitution hearing and otherwise denied Faber’s motion. Faber appealed after the court denied reconsideration.
¶5 The restitution dispute is not a new factor that would
justify Faber’s resentencing for attempted homicide. A new factor is a fact or set of facts highly
relevant to the defendant’s sentence that was unknown to the trial judge at the
time of original sentencing, either because it did not exist or was unknowingly
overlooked by the parties. Rosado
v. State, 70
¶6 We review the alleged PSI errors concerning Faber’s criminal
record as alleged violations of his right to be sentenced on correct
information, rather than under a new factor analysis. See State v. Tiepelman, 2006 WI 66, ¶9,
291
¶7 Faber is barred from claiming that the court relied on
incorrect information about his and his accomplice’s purported inflammatory
statements and beliefs. Faber heard the
court’s remarks on those statements and beliefs during the sentencing proceeding,
but did not object. He did not mention
them in his response to appellate counsel’s no-merit report. Issues that the defendant raised or could
have raised in a prior postconviction proceeding are barred in a subsequent
postconviction proceeding, absent sufficient reason for not previously raising
the issue. State v. Escalona-Naranjo,
185
¶8 Finally, Faber alleges that the Barron County District
Attorney engaged in an ex parte communication with the court regarding the
merits of Faber’s claims. Nothing in the
record shows that Faber raised this issue in the circuit court, and he has
therefore waived it on appeal.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).
[1] Judge Edward R. Brunner presided over the hearing on the motion to modify sentence and issued an oral ruling, but the two written orders in this case were signed by Judge Timothy M. Doyle.
[2] In
considering whether State v. Escalona-Naranjo, 185