COURT OF APPEALS DECISION DATED AND RELEASED June 27, 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. 95-0854-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRADLEY K. PERKINS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Dane County:
RICHARD J. CALLAWAY, Judge. Affirmed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Bradley Perkins appeals from an order denying his
motion to modify his sentence. The
dispositive issue is whether the trial court erroneously exercised its
discretion when it denied modification.
We conclude that the trial court properly handled the matter and
therefore affirm.
Perkins escaped while
serving a prison term on a Wisconsin conviction. He was eventually recaptured and returned to prison. He was then convicted and sentenced to
twenty-seven months in federal prison, consecutive to his Wisconsin sentence,
for an offense committed while he was an escapee. In this proceeding, he was prosecuted and convicted for the
escape, and the trial court imposed a thirty-six-month sentence consecutive to
the federal sentence.
In his motion, filed
under § 973.19, Stats.,
Perkins asked the court to impose the escape sentence consecutive to the
underlying Wisconsin sentence, so that he could complete both state terms
before commencing the federal term. He
primarily argued that his proposal would save transportation costs for the
state and federal governments. The
trial court denied relief, concluding that any savings were minimal.
Perkins first contends
that the trial court erred because it believed that it could not modify the
sentence unless Perkins showed a new factor.
Perkins notes, correctly, that a new factor is not required to modify a
sentence on a motion brought under § 973.19, Stats. However,
nothing in the record supports his contention that the trial court believed
otherwise.
Perkins next contends
that the trial court erroneously believed that it was required to impose the
escape sentence consecutive to the federal sentence. Again, Perkins misconstrues the record. The trial court made no such finding. The decision to impose the escape sentence consecutive to the
federal sentence was an exercise of discretion.
Perkins next contends
that the sentence violated § 946.42(4), Stats. That section requires that an escape
sentence shall be imposed "consecutive to any sentence previously imposed
or which may be imposed for any crime or offense for which the person was in
custody when he or she escaped."
He also contends that the sentence violated § 302.11(3), Stats., which provides that all
consecutive sentences shall be computed as one continuous sentence. We conclude that the sentence did not
violate § 946.42(4) because the purpose of that section is to bar concurrent
sentences on an escape conviction. It
does not require that the escape sentence commence immediately after completion
of the underlying sentence.
Additionally, the sentence does not violate § 302.11(3) because that
section applies only when the trial court has imposed consecutive sentences
during the same proceeding. Here, the
court imposed one sentence during the proceeding, and chose to make it
consecutive to the federal sentence, not the state sentence.
In his fourth attack on
the trial court's decision, Perkins asserts that the trial court erroneously
believed that modifying the sentence would modify the federal sentence. Although the trial court asked the parties
to address whether a modification might, in effect, modify the federal
sentence, it does not follow that by asking the question the court demonstrated
an erroneous belief. Ultimately, the
effect on the federal sentence was not a factor in the trial court's decision
to deny modification.
Finally, Perkins
contends that the trial court erroneously found that his adjustment to prison
in his previous term had not been satisfactory. Perkins bases his contention on facts that are not of
record. We therefore decline to
consider it. Jenkins v. Sabourin,
104 Wis.2d 309, 313-14, 311 N.W.2d 600, 603 (1981). In any event, the trial court's decision on the motion does not
indicate that Perkins' record in prison was a factor in the decision.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.