COURT OF APPEALS DECISION DATED AND FILED December 8, 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. Taran M. James, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Taran M. James appeals pro se from a postconviction order denying his motion to modify his sentence and from an order denying his motion to reconsider. He challenges a DNA surcharge imposed pursuant to Wis. Stat. § 973.046(1g). The circuit court determined that James’s motions were not timely filed. We agree and affirm.
BACKGROUND
¶2 The pertinent facts are few. On April 7, 2004, the circuit court sentenced James to six concurrent thirty-two-year terms of imprisonment for six counts of armed robbery. As to count one, the circuit court required James to pay a $250 DNA surcharge. See Wis. Stat. § 973.046(1g).
¶3 On February 10, 2009, James filed a pro se motion to vacate the DNA surcharge. James asserted that the surcharge was “in
conflict with” State v. Cherry, 2008 WI App 80, 312
DISCUSSION
¶4 James asserts that the
circuit court erred because it imposed a DNA surcharge without stating any
reasons for doing so. In support of his
claim, James relies on our decision in Cherry. There, we observed that the circuit court has
discretion to impose a DNA surcharge pursuant to Wis. Stat. § 973.046(1g), when sentencing a defendant
for any felony that does not involve certain sex crimes. Cherry, 2008 WI App 80, ¶5, 312
¶5 James is wrong. Cherry is not a procedural mechanism for seeking postconviction relief. A defendant must have an avenue for pursuing sentence modification before he or she can rely on Cherry to obtain relief. James does not demonstrate that he has such an avenue.
¶6 Pursuant to Wis. Stat.
§ 973.19, a defendant may challenge a sentence on any ground within
ninety days after sentencing. James’s
deadline for pursuing sentence modification pursuant to § 973.19, expired
ninety days after the sentencing proceeding of April 7, 2004. James made no challenge to the DNA surcharge
before expiration of the deadline. Pursuant
to Wis. Stat. § 974.02 and Wis. Stat. Rule 809.30, a defendant may
pursue postconviction review of a sentence within the time limits for a direct
appeal. James’s deadline for pursuing a
direct appeal pursuant to § 974.02, and Rule 809.30,
expired twenty days after his sentencing when he failed to file a notice of
intent to pursue postconviction relief. See
¶7 In his reply brief, James asserts that Cherry constitutes a new
factor that can be raised at any time. See State v. Noll, 2002 WI App 273, ¶11,
258
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Were
we to address the arguments that James raises in his reply brief, we would
reject them on their merits. First,
James has not presented a new factor.
“[A] ‘new factor’ must be an event or development which frustrates the
purpose of the original sentence.” State
v. Champion, 2002 WI App 267, ¶4, 258
Second, the DNA surcharge in this case is not
illegal. The circuit court had statutory
authority to impose the surcharge pursuant to Wis.
Stat. § 973.046(1g).