COURT OF APPEALS

DECISION

DATED AND FILED

 

October 27, 2009

 

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. 

2008AP2309-CR

Cir. Ct. No.  2001CF1773

STATE OF WISCONSIN   

IN COURT OF APPEALS

 

DISTRICT I

 

 

 

 

State of Wisconsin,

 

                        Plaintiff-Respondent,

 

            v.

 

Darril A. Wynn,

 

                        Defendant-Appellant.

 

 

 

 

            APPEAL from an order of the circuit court for Milwaukee County:  DANIEL L. KONKOL, Judge.  Affirmed.

            Before Curley, P.J., Fine and Kessler, JJ.

1        PER CURIAM.    Darril A. Wynn appeals pro se from a postconviction order denying his motion to quash the DNA surcharge imposed as a condition of his sentence.  The issues are whether the trial court failed to follow alleged precedent and to liberally construe Wynn’s pro se motion to allow his untimely challenge.  We conclude that the trial court was not obliged to re-open a final judgment entered in 2002 to retroactively apply a Wisconsin case decided in 2008, and that liberal construction cannot render timely Wynn’s belated challenge to the trial court’s exercise of discretion in imposing a DNA surcharge as a condition of his sentence.  Therefore, we affirm.

2        Wynn pled guilty to failure to pay child support in 2001.  The trial court imposed and stayed a five-year sentence comprised of two- and three-year respective periods of initial confinement and extended supervision, in favor of a four-year probationary term.  As a condition of that sentence, the trial court imposed various costs, fees and surcharges, including a $250 DNA surcharge.  Wynn did not object to that surcharge when imposed.  He failed to challenge that surcharge pursuant to sentence modification within ninety days of his sentence pursuant to Wis. Stat. § 973.19(1) (2001-02), or a direct appeal pursuant to Wis. Stat. Rule 809.30(2) (amended July 1, 2001).[1]  Consequently, Wynn’s judgment became final.  (A conviction becomes final after a direct appeal from that judgment and any right to directly review the related appellate decision is no longer available).  See State v. Howard, 211 Wis. 2d 269, 282 n.8, 564 N.W.2d 753 (1997) (citing Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)), overruled on other grounds by State v. Gordon, 2003 WI 69, ¶5, 262 Wis. 2d 380, 663 N.W.2d 765.

3        On August 21, 2008, Wynn moved to quash the DNA surcharge, relying on this court’s recent decision State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393.  The trial court denied the motion, ruling that his challenge was untimely.  Wynn appeals.

4        Wynn contends that his status as a pro se litigant entitles him to a liberal construction of his motion to effectuate justice, citing bin-Rilla v. Israel, 113 Wis. 2d 514, 335 N.W.2d 384 (1983).  The courts are obliged to liberally construe pleadings of pro se prisoners to analyze the relief sought, as opposed to limiting the analysis to the pleading’s label.  See id. at 521-24.  Although we may disregard labels for pro se prisoners, we cannot disregard the rules.

5        Wynn challenges the trial court’s failures to follow a subsequently decided Wisconsin case that he claims “is directly on point,” and to exercise discretion in imposing a DNA surcharge for a non-sexual offense.  He relies on this court’s recent Cherry decision, in which we reversed and remanded the matter to the trial court for its failure to exercise discretion when it imposed the DNA surcharge.  See id., 312 Wis. 2d 203, ¶¶9-11.

6        Wynn contends that the trial court is compelled to follow Cherry because it “is directly on point.”  Cherry, assuming arguendo that it is “on point”, was decided in 2008; Wynn’s surcharge was imposed in 2002, more than six years earlier.  We are not obliged to re-open a final judgment of conviction to apply Cherry, even if it was “on point”.[2] 

7        Wynn also challenges the DNA surcharge pursuant to Wis. Stat. §§ 973.19 and 809.30.  Section 973.19(1)(a) allows a person to move to modify a sentence or the amount of a fine within ninety days of the order imposing the sentence or the fine.  This section allows a defendant, whose challenge is limited to the sentence or fine imposed, an expeditious method of review.  See Judicial Council Note, 1984, § 973.19.  A defendant may challenge the judgment in any respect (limited to or beyond the scope of the sentence or fine) pursuant to Rule 809.30(2).   That type of challenge requires a defendant to file a notice of intent to pursue postconviction relief within twenty days of the imposition of sentence.  See Rule 809.30(2)(b).  There are other applicable deadlines for challenging the judgment by motion and/or appeal that require compliance with particular deadlines dependent upon whether a transcript and the appointment of counsel are warranted.  See Rule 809.30(2).

8        The trial court imposed the DNA surcharge on January 18, 2002, and entered the judgment of conviction three days later.  Wynn’s motion to quash that surcharge was filed August 21, 2008.  The motion is well beyond the ninety-day deadline of Wis. Stat. § 973.19(1)(a), and beyond the deadline for filing a notice of intent to seek postconviction relief, or any other relief pursuant to Wis. Stat. Rule 809.30(2)(b).  Bin-Rilla does not extend or remove these statutory deadlines for pro se prisoners.

9        If we construe Wynn’s motion as seeking postconviction relief pursuant to Wis. Stat. § 974.06 (2007-08), it would also fail.  Section 974.06 “is not a remedy for an ordinary rehearing or reconsideration of sentencing on its merits.”  State ex rel. Warren v. County Court, 54 Wis. 2d 613, 617, 197 N.W.2d 1 (1972).  Wynn challenges the surcharge as an erroneous exercise of discretion.  A challenge to the trial court’s discretion is not the constitutional or jurisdictional challenge contemplated by § 974.06.

10      If we construe Wynn’s motion as seeking sentence modification, it also fails.  A sentence may be modified if the defendant-appellant shows the existence of a new factor.  See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).  A new factor is

“a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.”

Id. (quoting Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975)).  Once the defendant has established the existence of a new factor, the trial court must determine whether that ‘“new factor’ … frustrates the purpose of the original sentence.”  State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (Ct. App. 1989).

11      Although our decision in Cherry was relatively recent, our reversal was because the trial court’s expressed reasons for imposing the DNA surcharge were insufficient to demonstrate an actual exercise of discretion.  See Cherry, 312 Wis. 2d 203, ¶¶6-7.  The obligation to apply the law to the facts and provide reasons and reasoning to explain the basis of a decision is not “new,” and does not constitute a new factor warranting sentence modification.

12      Wynn’s motion for relief, regardless of how it was labeled, fails.  Nothing in Cherry warrants the extraordinary action of re-opening a final judgment entered over six years ago.  Wynn’s motion, pursuant to Wis. Stat. §§ 973.19 and 809.30, is also untimely.  Wisconsin Stat. § 974.06 is not the proper method to challenge the trial court’s sentencing discretion.  See Warren, 54 Wis. 2d at 617.  Cherry is not a new factor warranting sentence modification.  See Franklin, 148 Wis. 2d at 8.  Consistent with the spirit of bin-Rilla, we have construed Wynn’s claim by considering multiple forms of relief.  See bin-Rilla, 113 Wis. 2d at 521‑22.  Wynn’s problem is not one of labeling or interpretation; it is one of timing.

            By the Court.—Order affirmed.

            This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)5.  (2007-08).

 

 


[1]  Wynn has repeatedly sought postconviction relief on bases other than challenges to the DNA surcharge.  All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted, with the exception of Wis. Stat. Rule 809.30, which was amended July 1, 2001.

[2]  Cherry identifies the DNA surcharge as subject to the trial court’s exercise of discretion; it does not create a new or different principle of law.  See State v. Cherry, 2008 WI App 80, ¶¶9-11, 312 Wis. 2d 203, 752 N.W.2d 393.