COURT OF APPEALS DECISION DATED AND FILED December 23, 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 Nos. |
2008AP725-CR |
1999CF6213 |
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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. Titus Graham, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Titus Graham, pro se, appeals from orders denying his
motion for sentence modification.
Because Graham’s claims are barred by State v. Escalona-Naranjo,
185
¶2 In 1999, Graham was charged with three counts of being a party to the crime of armed robbery and one count of armed robbery. Graham entered Alford[1] pleas and was convicted. The trial court sentenced Graham to concurrent thirty-year terms of imprisonment on each of the four counts.
¶3 Graham filed a postconviction motion to withdraw his pleas, arguing that his trial counsel was ineffective. Graham also argued that the sentence was excessive. The trial court denied the postconviction motion. Graham appealed. On appeal, Graham challenged only the sentence imposed by the trial court. This court upheld the trial court’s denial of postconviction relief.[2] State v. Graham, Nos. 2003AP1915-CR and 2003AP1916-CR, unpublished slip op. (WI App May 27, 2004). The supreme court denied Graham’s petition for review.
¶4 In 2005, Graham filed a Wis. Stat. § 974.06 (2005-06)[3] motion for postconviction relief. Graham again sought to withdraw his pleas, raising arguments related to the effectiveness of trial, postconviction, and appellate counsel; newly discovered evidence; and the State’s failure to disclose exculpatory evidence. The trial court denied Graham’s motion without a hearing. Graham appealed. This court affirmed. State v. Graham, Nos. 2005AP1094 and 2005AP1095, unpublished slip op. (WI App Mar. 28, 2006). The supreme court denied Graham’s petition for review.
¶5 On February 8, 2008, Graham filed a “Motion for Resentencing under the Inherent Power of the Court.” In that motion, Graham argued that the sentencing court relied on inaccurate information at sentencing and that the reliance constituted a “new factor” that frustrated the purpose of the sentence. In a February 15, 2008 order, the trial court denied Graham’s motion, reasoning that the sentencing court’s comments about Graham’s mandatory release date were not inaccurate and, therefore, not a “new factor” for purposes of sentence modification. In a motion for reconsideration, Graham disavowed a “new factor” analysis, and urged the trial court to reconsider the motion as seeking “resentencing due to reliance on inaccurate information.” The trial court denied reconsideration. The trial court did not rely on Escalona-Naranjo in its orders.
¶6 On appeal, Graham continues with the approach adopted in his
motion for reconsideration, and he does not raise any “new factor”
argument. Rather, he contends that the
sentencing court’s comments about his mandatory release date constituted
inaccurate information that was actually relied on by the judge in imposing
sentence.
See State v. Tiepelman,
2006 WI 66, ¶31, 291 Wis. 2d 179, 717 N.W.2d 1 (A defendant who moves for
resentencing on the ground that the trial court relied on inaccurate
information must establish that inaccurate information was before the court and
the court actually relied on the inaccurate information.). Because we conclude that Graham’s claim is barred
by Escalona-Naranjo,
we do not address the merits of his argument.
We affirm the trial court’s denial of Graham’s motion for
resentencing. See State v. Holt, 128
¶7 A defendant cannot raise an argument in a subsequent
postconviction motion that was not raised in a prior postconviction motion
unless there is a sufficient reason for the failure to allege or adequately
raise the issue in the original motion. Escalona-Naranjo,
185
[A] criminal defendant [is] required to consolidate all postconviction claims into his or her original, supplemental, or amended motion. If a criminal defendant fails to raise a constitutional issue that could have been raised on direct appeal or in a prior § 974.06 motion, the constitutional issue may not become the basis for a subsequent § 974.06 motion unless the court ascertains that a sufficient reason exists for the failure either to allege or to adequately raise the issue in the appeal or previous § 974.06 motion.
State v. Lo, 2003 WI 107,
¶31, 264
¶8 “[D]ue process for a convicted defendant permits him or her a
single appeal of [a] conviction and a single opportunity to raise claims of
error.” State ex rel. Macemon v. Christie,
216
¶9 Graham offers no sufficient reason, and we can discern none
from the records, why the issue he raises in this latest motion was not raised
previously, either in his direct appeal or in his first Wis. Stat. § 974.06 motion. The information that he now claims was inaccurate
is derived from statements made by the trial court when imposing sentence. There is no reason why Graham could not have
raised the issue in his prior postconviction litigation. As the supreme court has stated, “[w]e need
finality in our litigation.” Escalona-Naranjo,
185
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] See
[2] This court reversed those parts of the judgments of conviction relating to sentence credit, and ordered that Graham receive 170 days of sentence credit on both judgments. State v. Graham, Nos. 2003AP1915-CR and 2003AP1916-CR, unpublished slip op. ¶5 (WI App May 27, 2004).
[3] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.