COURT OF APPEALS DECISION DATED AND FILED March 31, 2009 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. Norman Lee Malone, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Norman Lee Malone, pro se, appeals an order denying his second motion to modify his sentence. He contends he was sentenced on inaccurate information. He further claims that he received an unduly harsh and lengthy sentence after the trial court erroneously exercised its discretion and directed his probation officer, who had testified against him, to prepare the presentence investigation report.[1] Malone’s claims are either procedurally barred or meritless, so we affirm the order.
¶2 In 2000, Malone was charged with, and convicted by a jury of,
seven drug offenses and three counts of possession of a firearm by a felon as a
habitual criminal. He received what
amounted to a sentence of twenty-five years’ initial confinement and twelve
years’ extended supervision. He filed a
motion for postconviction relief, which was denied, and took direct appeal,
which he lost.
¶3 In March 2007, Malone moved for sentence modification. He asserted the court had erroneously exercised its discretion, giving him too harsh a sentence, particularly in light of a co-defendant’s sentence.[2] He asked the court to reduce his prison term to fifteen years. The circuit court denied his motion, stating the discretion claim was time-barred. Malone did not appeal.
¶4 In July 2008, Malone filed another motion to modify his
sentence. He claimed a new factor based
on a claim that his due process right to be sentenced on accurate information
had been violated. He also re-alleged that
the court had erroneously exercised its discretion at sentencing, this time
asserting it was in error to order his probation officer, who had been a
witness for the State, to prepare the presentence investigation report. The court denied the motion. First, it noted that any erroneous exercise
of discretion claim had already been rejected as untimely and would therefore
not be considered on this motion. The
court then rejected the inaccurate information claim. It stated there was no reason Malone could not
have raised the claim in a former motion, meaning the present claim was barred
by State
v. Escalona-Naranjo, 185
¶5 When the only claim for postconviction relief relates to the
severity of the sentence, Wis. Stat. § 973.19
(2007-08) offers an “expeditious alternative” to Wis. Stat. Rule 809.30(2).[3] State v.
¶6 Malone again challenges his sentence by arguing the court’s erroneous exercise of discretion yielded an unduly harsh sentence. This claim is barred by issue preclusion.
¶7 “The doctrine of issue preclusion forecloses relitigation of
an issue that was [actually] litigated in a previous proceeding involving the
same parties or their privies.” Masko
v. City of Madison, 2003 WI App 124, ¶4, 265
¶8 There is no question that the parties are the same. Further, Malone has not filed a reply brief
to refute the State’s assertion that preclusion is appropriate or to show that
the court erroneously applied the preclusion doctrine against him. See
State
v. Mikkelson, 2002 WI App 152, ¶16, 256
¶9 In any event, it is evident that issue preclusion is
appropriate here. See Masko, 265
¶10 Malone also claims that he was sentenced on erroneous
information. This claim of error is not appropriately
brought under the sentence modification statute. See Walker, 292
¶11 A defendant has a due process right to be sentenced based on
accurate information. State
v. Tiepelman, 2006 WI 66, ¶9, 291
¶12 However, Malone claims that appellate counsel failed to raise
the issues for him on direct appeal, and that error should not be held against
him.[5] This may be a sufficient reason for failing
to raise an issue earlier. See, e.g., State ex rel. Rothering v.
McCaughtry, 205
¶13 Malone claims the court erroneously thought that he was dealing drugs from a day care center, that he was armed with three firearms at the time of his arrest, and that he was a danger to society. Malone claims it was never proven that the residence at which he was arrested was a day care and that a detective testified “he never could or was able to affirm that this was a day care center.” We note that Malone does not cite any specific location in the record or the transcript to support this claim.
¶14 A detective testified that a sign outside the home at which Malone resided, which was apparently owned by Malone’s mother, identified the location as “Granny’s Kids Day-Care.” The sign included various words such as “[n]utritious meals, snacks, educational activities, … [and] private pay vouchers accepted[.]” The detective also testified about items inside that would indicate the residence might have been a day care, including a play kitchen, a small table for children, decorations that appeared appropriate for small children and “things on the refrigerator with alphabets and so on.”
¶15 What Malone appears to refer to, in claiming it was never established that the home was a day care, is the State’s question, “But did you subsequently determine whether or not it was actually a certified day-care?” The detective testified only that he had called the State and confirmed that the residence was not a certified day care, despite language to the contrary on the sign outside. Malone does not show how the court was in error to have concluded the house was, in fact, a day care.
¶16 The court also commented that the fact that Malone “was armed with three different firearms when this occurred is another extremely aggravating factor.” These three firearms formed the basis for Malone’s three felon-in-possession charges, and were kept in his room. It is evidently true that Malone did not have weapons on his person when he was arrested, and because he was outside the home when he was taken into custody, Malone complains the court was wrong to say he was armed.
¶17 It is apparent that when the court spoke of him being “armed” with these weapons, it was merely referring to the fact that Malone kept them in the location from which he was dealing drugs. Because the jury convicted him of possessing the weapons, the court would necessarily discuss them at sentencing, even if its references were occasionally imprecise.
¶18 The last “error,” the court’s statement that Malone is a danger to society, is a conclusion that the court was entitled to draw based on the facts before it. It is a conclusion adequately supported by Malone’s seven drug and three gun convictions. Therefore, even if the motion for resentencing based on inaccurate information was not procedurally barred or time-barred, it was appropriately denied because Malone has not shown the court relied on any inaccurate information.[6]
By the Court.—Order affirmed.
This opinion shall not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Malone
alleges the trial court abused its discretion.
We no longer use the phase “abuse of discretion” and instead refer to
the “erroneous exercise of discretion.” City
of
[2] Malone argued that his co-defendant had only been sentenced to two years’ imprisonment. The circuit court, in denying Malone’s motion, noted that the co-defendant had been convicted of only a single drug offense.
[3] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[4] If the defendant has already ordered transcripts, the motion to modify the sentence must be brought within sixty days of the later of the service of the last transcript or the circuit court record. Wis. Stat. § 973.19(1)(b); Wis. Stat. Rule 809.30(2)(h).
[5] This does not, however, explain Malone’s failure to raise the issue in his March 2007 motion, which he also brought pro se.
[6] Malone appends a motion for resentencing to his appellate brief. It is not clear if it is meant to be a copy of the motion filed in the trial court or a motion directed to this court. The motion is captioned with his appellate case number and dated at the same time as his appellate brief, but the language appears identical to his trial court motion. To the extent the motion is directed to this court, we do not entertain such motions.