COURT OF APPEALS DECISION DATED AND FILED July 21, 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. Monchello C. Louis, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Monchello C. Louis, pro se, appeals from an order denying a motion for sentence modification. The circuit court denied the motion as procedurally barred. We affirm.
¶2 In 2003, Louis pled guilty to first-degree reckless injury, while using a dangerous weapon, as a party to a crime. See Wis. Stats. §§ 940.23(1)(a), 939.63 and 939.05 (1999-2000).[1] The circuit court imposed a bifurcated sentence of sixteen years, comprised of eleven years of initial confinement and five years of extended supervision, to be served concurrently with a previously imposed sentence.
¶3 Louis appealed and his appointed counsel filed a no-merit
report. See Wis. Stat. Rule
809.32. Louis did not file a response to
counsel’s report. This court considered
the report and independently reviewed the record. Upon that review, this court concluded there
were no arguably meritorious appellate issues and summarily affirmed Louis’s
judgment of conviction. Among the issues
expressly considered by this court was whether the circuit court erroneously
exercised its sentencing discretion. We
concluded that it did not.[2]
¶4 On February 15, 2007, Louis filed a “Motion to Correct Sentence” in which he claimed that the imposed sentence exceeded the maximum penalty. The circuit court denied the motion.[3] Louis did not appeal.
¶5 On July 10, 2008, Louis filed the “Motion for Modification of Defendant’s Sentence” that gives rise to this appeal. In his motion, Louis sought a decrease of the length of his initial confinement from eleven years to seven years. Louis argued that the circuit court “erroneously viewed” his cooperation with police as “payment” that “denigrated” his remorsefulness. Louis also contended that the circuit court “preconceived” that the maximum concurrent sentence was an appropriate disposition and that the court’s consideration of the gravity of the offense was improper. Although Louis included the phrase “new factor” twice in the motion, Louis did not make a “new factor” argument. The circuit court denied the motion as procedurally barred.
¶6 Louis appeals, and on appeal he continues to argue that the sentencing court did not properly consider that he cooperated with police in a homicide prosecution and that the sentencing court placed too much weight on the gravity of the offense. For the following reasons, Louis’s arguments are barred.
¶7 A motion for sentence modification must be brought within
ninety days of sentencing under Wis.
Stat. § 973.19(1)(a) or within the appellate time limits set forth
in Wis. Stat. Rule 809.30.
¶8 In an apparent attempt to circumvent those time limitations,
Louis included the phrase “new factor” in his postconviction motion.
¶9 Recognizing that Louis did not make a “new factor” argument,
the circuit court reviewed Louis’s postconviction motion as one brought under Wis. Stat. § 974.06. However, as the circuit court noted, a
challenge to sentencing discretion cannot be raised in a § 974.06
postconviction motion. See Cresci v. State, 89
¶10 Finally, we note that Louis’s arguments are procedurally barred
under State v. Escalona-Naranjo, 185
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] We stated as follows:
Louis expected the trial court to fashion a sentence, which would result in his serving no additional time in confinement once he completed the sentence he was serving for a different crime. The trial court explained why it rejected the sentencing recommendations in favor of the sentence it imposed. Although appellate counsel did not expressly address the trial court’s exercise of sentencing discretion, his description and analysis of the potential plea withdrawal issue, which was inextricably related to the sentencing, demonstrates why challenging the trial court’s exercise of sentencing discretion would lack arguable merit.
[3] In its order, the circuit court noted that the “while armed” penalty enhancer added five years to the potential sentence.
[4] As we note elsewhere, Louis did have a direct appeal—the no-merit review under Wis. Stat. Rule 809.32. He did not raise a challenge to his sentence in response to counsel’s no-merit report.