COURT OF APPEALS DECISION DATED AND FILED March 1, 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. Xavier Luis Perez, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Xavier Luis Perez, pro se, appeals the circuit court orders denying his motion to vacate the DNA surcharge imposed pursuant to Wis. Stat. § 973.046(1g) and the order denying his subsequent motion for reconsideration. Perez argues that the sentencing court failed to properly exercise its discretion when it imposed the DNA surcharge without articulating reasons to support its decision. In addition, Perez argues that the circuit court erred by not liberally construing his motion. Because Perez’s motion was filed more than two years after judgment was entered, it was untimely. We therefore affirm.
Background
¶2 Perez pled guilty to two counts of armed robbery as a party to a crime, Class C Felonies. In November of 2007, he was sentenced to two consecutive terms of three years of initial confinement and three years of extended supervision. The circuit court ordered that Perez provide a DNA sample and pay the surcharge. Perez did not appeal.
¶3 In 2008, this court released State v. Cherry, 2008 WI
App 80, 312 Wis. 2d 203, 752 N.W.2d 393, which discussed the on-the-record
explanation required when a circuit court exercises its discretion to impose a
DNA surcharge. See id., 2008 WI App 80,
¶¶9–10, 312
discussion
¶4 We first consider whether Perez’s motion to vacate the DNA
surcharge was timely. Based on our
recent decision in State v. Nickel, 2010 WI App 161, ___
¶5 “When a defendant moves to vacate a DNA surcharge, the
defendant seeks sentence modification. Pursuant to Wis.
Stat. § 973.19, a defendant may move for sentence modification within
ninety days after sentencing.” Nickel,
2010 WI App 161, ¶5, ___
¶6 Additionally, “a defendant may obtain postconviction review
of a sentence within the time limits of a direct appeal.”
¶7 Although a postconviction motion under Wis. Stat. § 974.06 is not subject to
the time limits set forth in Wis. Stat. § 973.19
and Wis. Stat. Rule 809.30, in Nickel,
we explained that “a § 974.06 motion is limited to constitutional and
jurisdictional challenges. It cannot be
used to challenge a sentence based on an erroneous exercise of discretion ‘when
a sentence is within the statutory maximum or otherwise within the statutory
power of the court.’” Nickel,
2010 WI App 161, ¶7, ___
¶8 In Nickel, we acknowledged that circuit
courts have inherent power to modify sentences at any time based upon a new
factor.
¶9 Instead, Perez argues that because he is proceeding pro se, we should liberally construe his
motion as a petition for a writ of mandamus.
See bin-Rilla v.
¶10 Perez fails to demonstrate a basis on which he may challenge the sentencing court’s exercise of discretion more than two years after the sentencing proceedings concluded. Accordingly, the circuit court correctly denied Perez’s motion to vacate the DNA surcharge.
By the Court.—Orders affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.
[1] To
the extent it can be construed as a constitutional argument, Perez’s allegation
that postconviction counsel was ineffective for not challenging the DNA
surcharge in a direct appeal is conclusory and undeveloped. See State v. Pettit, 171
[2] We
further held that “Cherry’s holding is not a new procedural rule warranting
retroactive application.” State
v. Nickel, 2010 WI App 161, ¶8, ___