COURT OF APPEALS DECISION DATED AND FILED January 19, 2011 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Gerald Allen Tabat, Defendant-Appellant. |
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APPEAL from orders of the circuit court for
daniel l. konkol, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Gerald Allen Tabat, pro se, appeals from an order denying his motion for postconviction relief and from an order denying his motion to reconsider. The circuit court rejected his claim that an alleged change in parole policy warrants sentence modification. Because we conclude that the alleged policy change is neither a new factor nor an ex post facto law that retroactively increased his punishment, we affirm.
BACKGROUND
¶2 Tabat pled guilty in 1991 to three counts of robbery, two
counts of second-degree sexual assault, and one count of attempted
second-degree sexual assault, all as a habitual criminal. The charges stemmed from a six-month crime
spree during which Tabat attacked women who were waiting for busses or leaving
their parked cars late in the evening.
The circuit court imposed an aggregate indeterminate prison term of
fifty-five years. In 2009, he filed the
postconviction motions underlying this appeal.
He asserted that an alleged change in
DISCUSSION
¶3 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 …
it was unknowingly overlooked by all of the parties.” State v. Kluck, 210
¶4 Tabat was sentenced in 1991 under
¶5 Tabat asserts that the circuit court imposed his sentences
with an “awareness of parole” but that a change in state policy “in effect
abolished parole in
¶6 First, we have previously determined that the Thompson letter
“had nothing to do with parole.” See Delaney, 289
¶7 Second, a change in Wisconsin’s parole policy, even if shown,
is not a new factor for purposes of sentence modification unless the circuit
court expressly relied on parole eligibility when imposing sentence. See
Franklin,
148
¶8 Tabat points to the following portion of the circuit court’s remarks to support his claim for relief:
Mr. Tabat, as an individual you are I think above the average person. I think you have got a lot of abilities but there are an awful lot of changes that have to occur now. I think you have forfeited your right to live in a civilized community for some time until there is a demonstration you have gotten rid of whatever is inside of you that causes this rage so that you can control yourself, so that you understand what conditions you should and should not put yourself into, so that you can come back some day and be a decent, law abiding, contributing citizen. A great deal – when that will occur isn’t going to be directly determined by what I do here today but is going to be pretty much determined by how you respond when you’re in our State Penal System.
I can impose years. The prison people have the authority to keep you there for a long, long, long, long time. Or if there is improvement and you show that you are able to handle things, you can be back in – in the community again. It’s up to them what’s – after I have finished today.
¶9 These remarks do not demonstrate that the circuit
court based its sentence on any “likely” action by the parole board. See
id.
The circuit court did not premise its
sentence on any likely release date, or promise Tabat that he was likely to be
granted discretionary parole at any time based on the sentence imposed.
¶10 Moreover,
a defendant seeking relief on the basis of an alleged new factor must show
“some connection between the factor and the sentencing—something which strikes
at the very purpose for the sentence selected by the [circuit] court.” Michels, 150
¶11 The primary purpose of the sentences here was community protection. The circuit court stated that Tabat “is no novice to the criminal justice system,” and that he had been engaged in criminal activity “for a long, long time.” In the circuit court’s view, “the enormity of this spree of savage behavior” demonstrated the need for “behavioral constraints.” The circuit court therefore concluded that “because of the nature of these events, the numbers of them, the series, the way they were executed, I think it requires a number of --- a considerable period of time in our State Prison System.” The circuit court’s remarks do not demonstrate that discretionary parole was critical to the purpose of the sentences. See id. Accordingly, Tabat did not satisfy his burden to show that any alleged change in parole policy constitutes a new factor in his case.
¶12 Tabat additionally proffers an argument that the governor’s
“policy directive” and its implementation retroactively lengthen his sentences
and therefore constitute violations of “the Ex
Post Facto Clause.”[4] Again, Tabat is not correct. “An ex
post facto law includes any law which was passed after the commission of
the offense for which the party is being tried.” Delaney, 289
By
the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Tabat previously sought sentence modification in 1998, and the circuit court denied the claim. Tabat’s earlier postconviction litigation has no bearing here.
[2] The
legislature thoroughly revised
[3] Tabat does not deny that he remains statutorily eligible for parole pursuant to Wis. Stat. § 304.06(1)(b) (2007-08). All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[4] Both
the