COURT OF APPEALS DECISION DATED AND RELEASED January 16, 1996 |
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. 95-0822-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS H. RICHMOND,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
LEE E. WELLS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Thomas H. Richmond appeals from an order denying his
postconviction motion for a sentence modification. Richmond claims that his due- process rights were violated as a
result of being sentenced on the basis of a presentence investigation report
that contained information about an uncharged assault. Richmond also claims that the trial court
erroneously exercised its discretion by determining that information written by
the victim to the parole board two years after sentencing did not frustrate the
purpose of his sentence and, therefore, was not a new factor justifying
resentencing.
Richmond was convicted
of first-degree sexual assault of a child.
He was sentenced to ten years in prison. On direct appeal, Richmond's counsel filed a no-merit report,
which we accepted. See Anders
v. California, 386 U.S. 738 (1967).
We affirmed the trial court's judgment, and rejected as being without
merit the claim that Richmond was entitled to sentence modification because the
presentence report discussed a sexual assault charge that had been dismissed
pursuant to a plea bargain. This court
also rejected as being without arguable merit a “new factor” claim for sentence
modification based on a letter written by his victim to the parole board
seeking leniency for Richmond.
Subsequently, Richmond brought a motion before the trial court seeking
to modify his sentence. He again
alleged new factors. The new factors
included a reiteration of Richmond's previous claim that the presentence report
improperly discussed a sexual-assault charge, and also alleged that the victim
wanted to speak at the sentencing, but was prevented from doing so by her
mother. Richmond claimed that the
victim would have said that she wanted Richmond's sentence to emphasize
treatment, not imprisonment. The trial
court denied Richmond's postconviction motion, and Richmond appeals.
Richmond again argues
that his due-process rights were violated because the presentence investigation
report discussed the uncharged assault.
The trial court noted that this issue had been raised and rejected on
direct appeal in this court's no‑merit opinion. Claims resolved against a defendant on direct appeal cannot be
reasserted on successive postconviction motions. State v. Brown, 96 Wis.2d 238, 241, 291 N.W.2d 528,
531 (1980), cert. denied, 449 U.S. 1015 (1980). We affirm the trial court on this issue.
Richmond next argues
that a letter written by the victim to the parole board two years after
sentencing constitutes a “new factor” that justifies resentencing. 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, even though it was then in existence, it was
unknowingly overlooked by all of the parties.
State
v. Harris, 174 Wis.2d 367, 379, 497 N.W.2d 742, 747 (Ct. App.
1993) (citation omitted). The new
factor must be an event or development that “`frustrates the purpose of the
original sentencing.'” Id.
(citation omitted). Whether a motion to
modify a sentence presents a new factor is a question of law that appellate
courts review de novo. State
v. Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609, 611 (1989).
The trial court imposed
a ten-year sentence in this case because of the seriousness of the offense; the
need to protect small children; Richmond's drinking problem and his failure to
do anything about it in his past; the existence of aggravating factors, such as
the particular vulnerability of the victim and the fact that Richmond was a
blood relative of the victim; and, the impact Richmond's actions had on the
victim. The victim's decision to seek
leniency for Richmond two years after the crime was committed is not a
development that frustrates the purpose of the original sentence and is not a
new factor that would warrant a modification of sentence.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.