COURT OF APPEALS
DECISION
DATED AND FILED
August 10, 2010
A.
John Voelker
Acting 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
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Gary B. Campbell,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: william
w. brash, Judge. Affirmed.
Before
Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Gary B. Campbell, pro se, appeals an order denying his
motion to modify his sentence. He argues
that the DNA surcharge imposed by the circuit court should be vacated because the
circuit court failed to adequately explain why it was imposed. See State v. Cherry, 2008 WI App 80, ¶10,
312 Wis. 2d 203, 752 N.W.2d 393 (when the circuit court exercises
discretionary power to impose a DNA surcharge, it must explain its reasons for
doing so). We affirm.
¶2 A motion to modify a sentence must be brought within ninety
days of sentencing under Wis. Stat. § 973.19(1)(a)
(2007-08),
or within appellate time limits set forth in Wis.
Stat. Rule 809.30. See State v. Norwood,
161 Wis. 2d
676, 680-81, 468 N.W.2d 741 (Ct. App. 1991).
Campbell
was sentenced on November 14, 2007, and ordered to provide a DNA sample, if he
had not already given one, and pay the applicable surcharge. Campbell
did not move to modify his sentence until July 8, 2009, nearly twenty months after
this sentence was imposed, so his motion is untimely. Moreover, if we were to construe the motion
as brought pursuant to Wis. Stat. § 974.06,
which allows postconviction challenges in a broader set of circumstances, Campbell’s
claim would fail because that statute may not be used to challenge the circuit
court’s exercise of sentencing discretion “when a sentence is within the
statutory maximum or otherwise within the statutory power of the court.” See
Smith
v. State, 85 Wis. 2d
650, 661, 271 N.W.2d 20 (1978).
¶3 Campbell
contends that he should be allowed to obtain relief because his motion for
sentence modification is based on a “new factor,” the recently decided Cherry
case. See id., 312 Wis. 2d 203, ¶10. A motion for sentence modification based on a
“new factor” can be made at any time. State
v. Noll, 2002 WI App 273, ¶12, 258 Wis. 2d 573, 653 N.W.2d 895. “The term ‘new factor’ refers to 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 … it was unknowingly overlooked by all of the
parties.” State v. Kluck, 210 Wis. 2d 1, 7, 563
N.W.2d 468 (1997). Our recent decision
in Cherry
does not qualify as a new factor.
We have previously held that a post-sentencing change in the law is not
a new factor for purposes of sentence modification because it is “not highly
relevant” to the imposition of the original sentence. See State v. Trujillo, 2005 WI 45, ¶30,
279 Wis. 2d 712, 694 N.W.2d 933; State v. Tucker, 2005 WI 46, ¶13,
279 Wis. 2d
697, 694 N.W.2d 926.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.