COURT OF APPEALS DECISION DATED AND FILED April 1, 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 IV |
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State of
Plaintiff-Respondent, v. Marcus A. Gentry,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Dykman, P.J., Lundsten and Higginbotham, JJ.
¶1 PER CURIAM. Marcus Gentry appeals from an order that denied his sentence modification motion without a hearing. We affirm for the reasons discussed below.
BACKGROUND
¶2 Gentry entered no contest pleas to two counts of armed robbery in 1998. The parties presented a joint sentencing recommendation to the court for a twenty-year prison term on one of the counts, which included a concealed identity penalty enhancer, and a thirty-year term of probation on the other count. After discussing factors such as the gravity of the offense, its impact on the victims, Gentry’s drug and alcohol usage, his limited employment history aside from selling drugs, and his leading role in the offenses, the court deviated upward from the parties’ recommendation. It imposed a thirty-five year prison term on the enhanced count and a concurrent forty-five year probation term on the other count.
¶3 Gentry filed a direct appeal seeking to challenge the court’s exercise of its sentencing discretion, but this court concluded that he had waived that issue by not first filing a postconviction motion. Gentry then filed a postconviction motion claiming that his sentence was unduly harsh because it gave too much consideration to some factors and not enough to others, and further alleging that counsel had provided ineffective assistance for failing to preserve the issue in the prior proceeding. The circuit court denied that motion following an evidentiary hearing.
¶4 Over eight years later, Gentry filed the sentence modification motion at issue in this case. In the present motion, Gentry claims that his thirty-five year sentence for armed robbery was unduly harsh and/or represented an erroneous exercise of discretion because: (1) the court failed to make findings of fact regarding the availability of institutional and community resources before rejecting probation; (2) the court failed to consider whether conditions of probation would have been sufficient to meet the objectives of the sentence; and (3) the court failed to take the defendant’s cooperation into account. The court denied the motion without a hearing, concluding that the sentence was not unduly harsh because it was well within the maximum available term, and that the record demonstrated a proper exercise of discretion in considering relevant factors. Gentry appeals.
STANDARD OF REVIEW
¶5 In order to obtain a hearing on a postconviction motion, a
defendant must allege sufficient material facts to entitle him to the relief
sought.
DISCUSSION
¶6 As a threshold matter, the parties dispute how Gentry’s sentence modification motion should be characterized, and what if any deadline applied to it. To place this dispute in context, we begin our discussion with a broad overview of sentence modification caselaw before reaching the specific issue raised in this case.
¶7 The courts of this state have the inherent power to modify an
unjust sentence.[1] State v. Crochiere, 2004 WI 78, ¶11,
273
¶8 First, a defendant may use Wis.
Stat. § 973.19 to challenge his sentence immediately after its
imposition, either under the deadlines set forth in Wis. Stat. Rule 809.30,
or within ninety days after the sentence was imposed if no other relief will be
sought under Rule 809.30. This mechanism affords review of the court’s
exercise of discretion, including whether proper factors were considered or the
sentence was unduly harsh. State
v. Macemon, 113
¶9 After the time to appeal as a matter of right has expired, a
defendant still in custody may use the postconviction procedure set forth in Wis. Stat. § 974.06 to seek review
of any of the enumerated types of claims for which relief is available under
that statute.[2] This mechanism would encompass claims that a
defendant was afforded ineffective assistance of counsel or was denied due
process by being sentenced on inaccurate information. See,
e.g., State v. Tiepelman, 2006
WI 66, ¶9, 291
¶10 Next, a court may at any time set aside as void a sentence
which exceeded the maximum penalty authorized by law, or correct a clerical
error in a judgment which does not reflect the actual sentence imposed by the
court. Wis.
Stat. § 973.13; Crochiere, 273
¶11 Finally, a court has ongoing inherent authority to modify a
previously imposed sentence based upon a new factor. Cochiere, 273
¶12 Here, Gentry essentially contends that the deadlines set forth
in Wis. Stat. § 973.19 do
not apply to any motion which cites inherent power as the source of the court’s
authority to act—which his claim to set aside his sentence as unduly harsh
does. Gentry relies upon the following
passage from Cresci v. State, 89
Hayes v. State, 46
We note, however, that the
ninety-day deadline the court was referring to in Cresci was one imposed
only by caselaw at that time. The Cresci
decision predated the enactment of § 973.19 by order of the
Wisconsin Supreme Court in 1985, which formalized the alternative methods of
seeking sentence modification in the circuit court within ninety days or
according to the deadlines established in Rule 809.30. See 123
¶13 It is true that there are several more recent cases which make
statements along the lines that a court may use its inherent power to reduce a
sentence either on the basis of a new factor or when it concludes that the
sentence was unduly harsh or unconscionable.
See, e.g., State v. Grindemann,
2002 WI App 106, ¶21, 255 Wis. 2d 632, 648 N.W.2d 507; Crochiere,
273
¶14 An evaluation of whether a sentence is unduly harsh calls into question the circuit court’s exercise of discretion. Gentry does not contend that his challenge to the court’s exercise of its sentencing discretion is a type of claim for which relief would be available under Wis. Stat. § 974.06. Nor does his challenge to the court’s exercise of its sentencing discretion raise a claim that the sentence imposed was in excess of that authorized by law, which could be raised at any time. Gentry also concedes that his motion did not claim any new factor, which by necessity could not have been raised before the new factor was discovered. We can only conclude that Gentry’s claim that his sentence was unduly harsh as the result of an erroneous exercise of discretion is subject to the “defined parameters” of Wis. Stat. § 973.19, including the deadlines established therein.
¶15 In sum, Gentry has not asserted any ground for relief other than an erroneous exercise of sentencing discretion, and has not provided any authority establishing that any mechanism other than Wis. Stat. § 973.19 is available to review such claims. Gentry does not dispute that his present sentence modification motion was filed years after the § 973.19 deadlines had expired, and has also not provided any authority which persuades this court that the circuit court had the discretion to extend those deadlines, much less that there would have been any grounds to do so here if the circuit court had such discretion. Therefore, the trial court properly dismissed Gentry’s sentence modification motion without a hearing.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This
inherent power is separate from the court’s statutory power under Wis. Stat. § 973.195 (2007-08) to
adjust a sentence in certain limited circumstances. State v. Stenklyft, 2005 WI 71,
¶¶39-48, 59, 281
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Available grounds for relief under Wis. Stat. § 974.06(1) are “that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack.”
[3] In fact, we note that Wis. Stat. Rule 809.82(2) explicitly vests the authority to extend deadlines under Wis. Stat. Rule 809.30 with this court, rather than the circuit court.