COURT OF APPEALS DECISION DATED AND RELEASED May 30, 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. |
Nos. 95-1748
95-1749
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CARL J. KNAPP,
Defendant-Appellant.
APPEALS from an order of
the circuit court for Lafayette County:
JAMES WELKER, Judge. Affirmed
in part; reversed in part and cause remanded with directions.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Carl J. Knapp appeals from an order denying his motion
for sentence modification. We affirm in
part and reverse in part.
Knapp was convicted in
1991 of two counts of second-degree sexual assault of a child, contrary to
§ 948.02(2), Stats. He was sentenced to two consecutive
seven-year prison terms, out of a maximum possible total of twenty years. Knapp did not appeal from the convictions. In June 1995, Knapp filed a motion to modify
his sentence.
Knapp argues that
several new factors justify sentence modification. The alleged new factors are:
a change in the health of his mother; enactment of ch. 980, Stats.; and new parole commission
rules. A defendant seeking sentence
modification must show the existence of a new factor. State v. Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609,
611 (1989). A new factor is a fact
highly relevant to the imposition of sentence, but not known to the trial court
at the time of original sentencing, either because it was not then in existence
or was unknowingly overlooked by the parties.
Id. A new factor
must be one which frustrates the purpose of the original sentence, something
which strikes at the very purpose selected by the trial court. State v. Michels, 150 Wis.2d
94, 99, 441 N.W.2d 278, 280 (Ct. App. 1989).
We agree with the trial
court's conclusion that none of Knapp's arguments are new factors. While each may have some impact on the
future of Knapp or his family, none of them are highly relevant to sentencing
or frustrate the purpose of the original sentence.
Knapp argues that the
court erred in sentencing him by placing undue weight on an
"unsubstantiated" charge of contributing to the delinquency of a
minor. Knapp asserts that the
presentence report erroneously claimed he admitted to such a conviction,
although the conviction was not supported by any official record. However, Knapp did not object to the alleged
error in the report, and therefore he has waived this issue. See State v. Johnson,
158 Wis.2d 458, 470, 463 N.W.2d 352, 358 (Ct. App. 1990). Knapp also argues that certain other
statements in the report were erroneous or improper, but these issues have also
been waived because he did not object.
Knapp argues the court
erroneously considered his lying during trial when sentencing him. However, this is a factor the trial court
may constitutionally consider. See
United States v. Grayson, 438 U.S. 41 (1978).
Knapp argues the court
erroneously exercised its discretion by giving him an unduly harsh
sentence. The record shows that the
court considered appropriate factors.
The sentence is not "so excessive and unusual and so disproportionate
to the offense committed as to shock public sentiment and violate the judgment
of reasonable people concerning what is right and proper under the
circumstances." See State
v. Thompson, 172 Wis.2d 257, 264, 493 N.W.2d 729, 732 (Ct. App. 1992)
(quoting Ocanas v. State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461
(1975)). Therefore, we reject this
argument.
Knapp argues that his
trial counsel was ineffective in several ways.
However, these arguments are not relevant to a motion to modify
sentence. They must be presented by a
motion under § 974.06, Stats.
Knapp argues that the
trial court erred by setting restitution at $2,000. The record shows the court set this amount if Knapp failed to
return certain personal property to the victim. Knapp's counsel argued at sentencing that the restitution order
was inappropriate because his possession of the property had no relationship to
the crime for which he was being convicted, as required by statute. We agree.
The sentencing court may make a variety of restitution orders under §
973.20(2)-(5), Stats. However, all the provisions of that statute
require a connection between the crime and the restitution order.[1] The record does not show any connection
between Knapp's crime of second-degree sexual assault of a child and his
retention of the victim's property.
Therefore, on remand the circuit court shall amend the judgment to
remove the restitution provision.
By the Court.—Order
affirmed in part; reversed in part and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.