COURT OF APPEALS DECISION DATED AND FILED May 17, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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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. Kofi A. Easterling, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Kofi A. Easterling, pro se, appeals orders denying his motions to vacate a DNA surcharge imposed when he was sentenced in 2002. He contends the circuit court misused its discretion when it imposed the surcharge. We affirm.
¶2 Easterling argues that the circuit court failed to adequately
explain why the surcharge was imposed as required by State v. Cherry, 2008
WI App 80, ¶10, 312 Wis. 2d 203, 208, 752 N.W.2d 393, 395. In Cherry, we held that a circuit court
is required to demonstrate on the record a proper exercise of discretion when
imposing a DNA surcharge pursuant to Wis.
Stat. § 973.046(1g). See Cherry,
2008 WI App 80, ¶¶9-11, 312
¶3 We recently held that a motion to vacate a DNA surcharge
based on Cherry may not be brought after the time limits for filing
either a direct appeal under Wis. Stat.
Rule 809.30 or a motion for sentence modification under Wis. Stat. § 973.19 have
elapsed.
¶4 Easterling contends his motion is brought pursuant to Wis. Stat. § 974.06, which is not
subject to the time limits set forth in Wis.
Stat. Rule 809.30 and Wis. Stat. § 973.19. We rejected this very argument in Nickel,
2010 WI App 161, ¶7, 330
¶5 Easterling next argues that he received ineffective assistance of counsel. As aptly explained by the circuit court: “Cherry was decided long after trial counsel and postconviction counsel had concluded their representation in this case. Neither counsel was ineffective for failing to raise an objection to the DNA surcharge based upon case law that did not exist at the time.” We reject Easterling’s argument that he received ineffective assistance of counsel.[1]
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] After
this appeal was submitted for decision, Easterling filed a motion “to hold