|
COURT OF APPEALS DECISION DATED AND RELEASED August 8, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0038-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MELVIN BEASLEY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Melvin Beasley appeals from a judgment of
conviction for one count of first-degree sexual assault of a child, contrary to
§ 948.02(1), Stats. He also appeals from an order denying his
postconviction motion, which sought sentence modification. He raises two issues for our consideration:
(1) whether the trial court violated his due process rights by relying on
inaccurate information in imposing sentence; and (2) whether the enactment of
Chapter 980, Stats., i.e., “the
sexual predator law”[1]
constitutes a new factor, justifying sentence modification. Because the trial court did not rely on
inaccurate information in imposing sentencing, and because Chapter 980 does not
constitute a new factor, we affirm.
I. BACKGROUND
Beasley was charged with
one count of first-degree sexual assault of a child. The case was tried to a jury in February 1994. During the trial, the victim, Jeannetta R.,
an eight-year-old, testified that Beasley only assaulted her on one
occasion. However, other testimony at
trial presented evidence of multiple assaults.
Police Officer Vicki Crowell, who had interviewed the victim on two
occasions, testified that the victim had told her about multiple assaults
committed by Beasley. In addition, a
school psychologist testified that Jeannetta R. had described frequent assaults
by Beasley. Further, medical evidence
indicated that Jeannetta R. had been assaulted on more than one occasion.
The jury convicted
Beasley and the trial court sentenced him to the maximum term—twenty
years. During sentencing, the trial
court relied on the evidence supporting multiple assaults in imposing
sentence. Beasley filed a motion
seeking sentence modification on the basis that the trial court relied on
inaccurate information and that the enactment of Chapter 980 constituted a new
factor. The trial court denied the
motion. Beasley now appeals.
II. DISCUSSION
A. Inaccurate
Information in Sentencing?
Beasley claims that he
is entitled to a modification of his sentence because the trial court violated
his due process rights by relying on inaccurate information when it imposed the
twenty-year-sentence. Specifically,
Beasley contends the trial court relied heavily on its belief that Beasley
committed multiple assaults of the victim over a period of time. Beasley argues this information was
inaccurate and points to the victim's trial testimony, which indicated that
only one sexual assault occurred. The
trial court rejected Beasley's argument, with the following rationale:
A
review of the transcripts reveals that the victim --an eight-year old
child--was an extremely difficult witness to question. Frequently, she looked down and would not
answer the questions posed. She stated
she was afraid of the defendant because he had said he would kill her, and that
she was especially afraid to talk about what he did in front of the defendant
seated in the courtroom.... Although
she only testified to one instance during 105 pages of testimony, throughout
much of which the child had to be coaxed to respond, she substantiated all of
the highly sensitive recitation of events she previously gave to Officer Vicki
Crowell in the State's redirect examination, indicating that all she had told
Officer Crowell was truthful and not a lie....
The testimony provided by Officer Crowell at
the trial consisted of statements made by the child on two separate occasions
concerning more than one sexual contact between the victim and the
defendant.... Even though the victim
did not testify in court to the other incidents, Officer Crowell testified to
the information given her by the child.
Crowell's testimony in conjunction with the child's statement provided
the court with a basis for its statement at sentencing with regard to more than
one sexual contact initiated by the defendant.
Whether the defendant
has proved by clear and convincing evidence that the trial court violated his
due process rights by imposing a sentence based on inaccurate information is a
question of law that we review de novo.
See State v. Littrup, 164 Wis.2d 120, 126,
132, 473 N.W.2d 164, 166, 168 (Ct. App. 1991).
We conclude that Beasley has not satisfied his burden.
If the record on this
point consisted solely of the victim's testimony, we would accept Beasley's
argument. The record, however, also
contains testimony from additional witnesses that contradicts the victim's
isolated account. A police officer, a
school psychologist and a medical witness all testified regarding Beasley's
repeated assaults on the victim. Further,
as amply noted by the trial court, the victim may have limited her testimony
because of her fear of the defendant.
In any event, the record contains inconsistencies: some testimony shows that the assault was
isolated and some testimony shows the assaults were multiple.
Beasley has failed to
show by clear and convincing evidence that the additional testimony and
evidence referenced above was inaccurate.
He has shown only the inconsistency between the victim's testimony and
the other witnesses' testimony.
Accordingly, the trial court was free to rely on the other witnesses'
testimony in imposing sentence and the trial court's reliance on this testimony
does not render the sentence one based on inaccurate information.
B. New
Factor.
Beasley also claims that
his sentence should be modified because of a new factor. He contends that this “new factor” was the
enactment of Chapter 980, Stats.,
after he was sentenced. The trial court
rejected this argument, concluding that the new law does not frustrate the
purpose of the original lengthy sentence.
State v. Michels, 150 Wis.2d 94, 99, 441 N.W.2d 278,
280 (Ct. App. 1989) (to be a new factor, event or development must frustrate
the purpose of the original sentence).
To obtain sentence
modification, Beasley must show: (1) that there is a new factor; and (2) that
the new factor justifies sentence modification. See State v. Franklin, 148 Wis.2d 1, 8,
434 N.W.2d 609, 611 (1989). Whether a
fact or set of facts constitutes a new factor is a question of law which may be
decided without deference to the lower court's determinations; however, whether
the new factor justifies modification of the sentence is committed to the
circuit court's discretion and will be reviewed under an erroneous exercise of
discretion standard. Id.
A new factor, as defined
in Rosado v. State, 70 Wis.2d 280, 288, 234 N.W.2d 69, 73 (1975),
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 [the] original sentencing, either
because it was not then in existence or because, even though it was then in
existence, it was unknowingly overlooked by all of the parties.” This court has further developed the
definition of a “new factor” as “an event or development which frustrates the
purpose of the original sentence.” Michels,
150 Wis.2d at 99, 441 N.W.2d at 280.
We must examine whether
the enactment of Chapter 980, Stats.,
satisfies the “new factor” definition.
It is undisputed that Chapter 980 was not known to the trial judge at
the time of the original sentencing because it had not yet been enacted. Therefore, our determination turns on
whether Chapter 980 is “highly relevant to the imposition of sentence,” and
whether its enactment after Beasley was sentenced frustrates the purpose of the
original sentence.
The essence of Beasley's
contention is that the trial court would not have had to impose the maximum
sentence of twenty years if Chapter 980 had been enacted at the time he was
sentenced. Beasley reasons that Chapter
980, which applies retroactively to him, provides a procedure by which a sexual
predator remains in custody beyond the sentence imposed if the sexual predator
is still sexually violent. See
§ 980.06, Stats. As a result, Beasley continues, he will
remain in custody until it is determined that he is no longer sexually
violent. Beasley contends that the
purpose of the lengthy sentence, in light of the protections afforded by
Chapter 980, no longer exists.
We reject Beasley's
argument. The purpose of the maximum
sentence arose out of a variety of factors, as noted by the trial court during
sentencing and in its written order denying Beasley's postconviction
motion. Beasley's repeated past
criminal activity and his failure to reform himself demonstrated the need for a
lengthy period of incarceration. The
aggravated nature of the crime committed here—that is, sexual intercourse with
a young child, and multiple sexual assaults committed by Beasley over a period
of time, demonstrated the need for a lengthy sentence. The length of the sentence was also intended
to protect the public. Beasley's
argument is similar to arguments that our supreme court rejected in State
v. Hegwood, 113 Wis.2d 544, 335 N.W.2d 399 (1983) (holding that
reduction of the statutory maximum after sentence was imposed is not a “new
factor”); and State v. Macemon, 113 Wis.2d 662, 335 N.W.2d 402
(1983) (holding that adoption of felony sentencing guidelines is not a “new
factor”).
We, in turn, hold that
the enactment of Chapter 980 does not rise to the level of a “new factor”
because Chapter 980 does not frustrate the purpose of the trial court's
sentence. Chapter 980 was not passed in
order to benefit convicted felons with the imposition of shorter sentences
because of its protection. Chapter 980
was passed to keep sexually violent criminals off the streets of our community even
after they have completed the sentence imposed. See § 980.06, Stats. Further, there is no evidence in the current
record to demonstrate that Chapter 980 will even be applied to Beasley.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.