COURT OF APPEALS DECISION DATED AND FILED July 28, 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. John F. Fant, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. John F. Fant appeals pro se from an order denying his sentence modification motion. We conclude that Fant’s statutory claims are barred and his common law claims are meritless. We affirm.
BACKGROUND
¶2 In 1996, police found approximately seventy-one grams of
cocaine powder during a search of Fant’s apartment. The police then searched the basement of the
apartment building, where they found approximately 1370 grams of cocaine base
(commonly referred to as “crack” cocaine).
Fant admitted that the cocaine belonged to him. The State charged Fant with possession of
more than 100 grams of cocaine with intent to deliver. See
Wis. Stat. §§ 161.16(2)(b)1,
161.41(1m)(cm)5. (1993-94).[1] A jury found him guilty of the crime, and the
circuit court imposed the maximum sentence of thirty years in prison. With the assistance of appellate counsel,
Fant filed two postconviction motions.
The circuit court denied the motions and Fant appealed, challenging the
search of the apartment building, the jury selection, and the effectiveness of
his trial counsel. This court
affirmed. See
¶3 In 2008, Fant filed a petition for a writ of habeas corpus in this court pursuant to State
v. Knight, 168
¶4 Within a few weeks of our decision in Fant II, Fant filed the postconviction motion underlying this appeal. He asserted that the circuit court erroneously exercised its sentencing discretion and that a new factor warrants sentence modification. The circuit court denied the motion without a hearing, and this appeal followed.
DISCUSSION
¶5 Fant claims that the circuit court erroneously exercised its
sentencing discretion and violated his constitutional rights by taking into
account factors that Fant believes are improper, namely, Fant’s refusal to
cooperate with law enforcement, Fant’s decision to pursue a trial rather than
to enter a guilty plea, and the community’s need for protection from Fant and
other drug offenders. Fant relies on Wis. Stat. § 973.19 as the
authority permitting his claim. That
statute allows a defendant to move for sentence modification within ninety days
after the sentence is entered.
¶6 A defendant who is in custody under sentence of a court may
challenge that sentence at any time on constitutional or jurisdictional grounds
pursuant to Wis. Stat. § 974.06(1). Fant’s sentence modification motion did not
reference § 974.06, but courts follow a liberal policy when reviewing
prisoners’ pro se pleadings. See bin-Rilla v.
¶7 We need finality in our litigation.
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 Fant offers no reason, much less a sufficient reason, for
failing to challenge his sentence in his prior postconviction motions and
direct appeal. Therefore, the challenge
cannot be brought under Wis. Stat. § 974.06. See
Escalona-Naranjo,
185
¶9 Fant also asserts that he is entitled to a sentence
modification pursuant to two United States Supreme Court cases, Apprendi
v.
¶10 “[A]ny fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530
¶11 In this case, a jury found Fant guilty beyond a reasonable doubt of possessing more than 100 grams of cocaine with intent to deliver. Upon conviction, Fant faced a statutory maximum sentence of thirty years. See Wis. Stat. §§ 161.16(2)(b)1, 161.41(1m)(cm)5 (1993-94). The circuit court imposed a thirty-year sentence, a term that did not exceed the prescribed statutory maximum. Nothing in Apprendi or Blakely renders Fant’s sentence improper in any way.
¶12 Finally, Fant points to recent changes in the federal sentencing guidelines as a basis for relief. He states that the changes reduce the sentence ranges for federal offenses involving cocaine base. The changes, he asserts, alleviate disparities that have led to harsher sentences under the guidelines for offenses involving “crack” cocaine than for offenses involving cocaine powder. Fant argues that changes to the federal sentencing guidelines constitute a new factor entitling him to a sentence modification. We are not persuaded.
¶13 A new sentencing factor is a fact or set of facts highly
relevant to the sentencing determination but not known to the circuit court at
the time of the original sentencing, either because it was not then in
existence or because it was unknowingly overlooked by all of the parties. State v. Franklin, 148
¶14 The federal sentencing guidelines were not a factor in the sentencing determination at all. Because the federal sentencing guidelines were irrelevant to the original sentencing decision, a change in those guidelines cannot constitute a new factor justifying sentence modification. Cf. id. at 14 (change in parole policy not a new factor when parole policy was not considered during the original sentencing decision).
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.