COURT OF APPEALS DECISION DATED AND FILED February 2, 2010 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. Jerome Paul, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Jerome Paul, pro se, appeals the circuit court’s order denying his motion to modify his forty-year indeterminate sentence for first-degree reckless homicide. He argues that there is a new factor justifying sentence modification. We affirm.
¶2 “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.” State v. Delaney, 2006 WI
App 37, ¶8, 289
¶3 Paul’s argument centers on his mandatory release date. He points to the circuit court’s comment at
the sentencing hearing, made after it had already imposed the sentence, that
Paul would be “mandatorily released after he has served two-thirds of the
sentence.” Paul contends that his
sentence should be modified because this statement was incorrect. He is not absolutely entitled to mandatory
release after serving two-thirds of his indeterminate prison sentence—rather,
he is only presumed to be entitled to
release. Paul’s argument is unavailing. The circuit court mentioned Paul’s mandatory
release date only in passing, in response to a question by Paul’s attorney, after the court had already imposed the
sentence. The circuit court did not base
its sentence on the mandatory release date and, in fact, would not have
mentioned it at all but for the question by Paul’s attorney. Therefore, the fact that the mandatory
release date is presumptive rather than absolute cannot be said to “frustrate[]
the purpose of the original
sentencing.” See Michels, 150
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).