COURT OF APPEALS DECISION DATED AND FILED May 11, 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. Victor L. Cruz, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Victor L. Cruz, pro se, appeals an order denying his
motion for sentence modification. The
circuit court ruled that Cruz’s challenge to a penalty enhancer was both
meritless and a Wis. Stat. § 974.06
(2007-08)[1]
claim barred by State v. Escalona-Naranjo, 185
¶2 In October 1995, Cruz was charged with one count of first-degree reckless homicide, while armed, as party to a crime, and one count of first-degree recklessly endangering safety, while armed, as a party to a crime. According to the criminal complaint, Cruz killed victim Robert Bruce in a gang-related confrontation. In March 1996, Cruz pled guilty to the reckless homicide count as charged. The endangering safety count was dismissed and read in. In May 1996, Cruz was sentenced to the maximum of forty-five years’ imprisonment: forty years for the homicide plus an additional five years for the “while armed” penalty enhancer. In September 1999, Cruz filed a pro se motion seeking plea withdrawal. That motion was denied in October 1999.
¶3 In March 2009, Cruz brought the underlying motion to modify
his sentence. He alleged the increased
penalty for use of a dangerous weapon was imposed erroneously and that a secret
policy change by the parole board frustrated the court’s original sentencing
intent. The circuit court rejected these
challenges. It noted that the challenge
to the increased penalty could have been brought in the 1999 motion and lacked
merit in any event because, contrary to Cruz’s assertion, being armed is not an
essential element of first-degree reckless homicide. The court rejected the challenge to the
parole board’s alleged policy change because, under State v. Franklin, 148
¶4 We decline to apply Escalona to the penalty enhancer
challenge. Cruz appears to be alleging
that his sentence is “a maximum penalty in excess of that authorized by law[.]”
See
Wis. Stat. § 973.13. A faulty sentence, void as a matter of law under
§ 973.13, may be challenged at any time, notwithstanding ordinary
procedural bars.
¶5 As the circuit court recognized, however, Cruz’s challenge to the penalty enhancer is simply meritless. Wisconsin Stat. § 939.63(1)(a) (1993-94) provides for enhanced penalties if a person “commits a crime while possessing, using or threatening to use a dangerous weapon[.]” However, the increased penalty “does not apply if possessing, using or threatening to use a dangerous weapon is an essential element of the crime charged.” Wis. Stat. § 939.63(1)(b) (1993-94).
¶6 The elements of first-degree reckless homicide are that the defendant:
(1) caused the victim’s death, (2) by
criminally reckless conduct,
(3) under circumstances showing utter disregard for human life. See
¶7 Cruz also argues that a change in parole policy constituted a
new factor that would permit resentencing.
A “new factor” is a fact or set of facts highly relevant to imposition
of sentence, but not known to the trial judge at the time of the original
sentencing either because it was not then in existence or, if it was in
existence, it was unknowingly overlooked by all of the parties. Franklin, 148
¶8 Cruz alleges, as a new factor, a supposed policy change wherein offenders would not be paroled until having served two-thirds of their sentences, even though they are statutorily eligible for release after having completed twenty-five percent of a sentence. To demonstrate this alleged new factor, Cruz refers to an April 28, 1994 letter written by then-Governor Tommy Thompson. However, as we explained in State v. Delaney, 2006 WI App 37, ¶¶10-21, 289 Wis. 2d 714, 712 N.W.2d 368, that letter does not give rise to a new factor.
¶9 As in Delaney, the governor’s letter was
in existence prior to Cruz’s sentencing, raising the prospect that the sentencing
court was well aware of it at the time of sentencing. See id., ¶10. If the court had been aware of it, it could
not now be called a new factor. Franklin,
148
¶10 Cruz contends, as did Delaney, that because of other
expectations of a sentencing court, his sentence must have been imposed with parole
eligibility in mind, and the original sentence must have been calculated under
the assumption that Cruz could be released after serving twenty-five percent of
the sentence. See Delaney, 289
¶11 We do not speculate about the sentencing court’s intent, or
whether it knew of the governor’s letter, but instead review the court’s actual
words.
¶12 Simply put, Cruz fails to establish the existence of any new
factor. See id., ¶21. Further, it is evident that the possibility
of parole, or lack thereof, played no role in the court’s fashioning of the
original sentence.
By the Court.—Order affirmed.
This opinion shall not be published. See Wis. Stat. Rule 809.23(1)(b)5.