COURT OF APPEALS DECISION DATED AND RELEASED September 26, 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. 95-1753-CR
95-1754-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHANDRA D. DENNIS,
Defendant-Appellant.
APPEALS from judgments
and orders of the circuit court for Dane County: MICHAEL B. TORPHY, JR., Judge.
Judgments affirmed; order denying postconviction motion affirmed in
part and reversed in part; restitution order reversed and cause remanded for
further proceedings.
Before Dykman, P.J.,
Vergeront, J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Chandra D. Dennis appeals from judgments of conviction
and orders setting restitution and denying her postconviction motion. The issues are whether the restitution order
stated the proper amount and whether Dennis presented a new factor for purposes
of sentence modification. We reverse
and remand for further proceedings on the restitution order and otherwise
affirm the judgment and the order denying postconviction relief.
Dennis pleaded no
contest to several felony counts of issuing worthless checks, forgery and
financial transaction card crime.
Additional similar charges were dismissed and read in for
sentencing. The court sentenced Dennis
to a term of imprisonment and a consecutive period of probation and ordered
restitution.
Dennis argues that the
restitution amount improperly included conduct for which she was not charged or
convicted. The State does not appear to
dispute that the restitution amount includes conduct not charged. It first argues that Dennis agreed to have
both charged and uncharged conduct read in for purposes of restitution. Such an agreement is not apparent from the
plea hearing, at which the prosecutor said the State "will move to dismiss
and read in the remaining counts in 94-CF-1002." There was no mention of reading in uncharged conduct. In a pre-sentencing letter and at
sentencing, the State proposed restitution of approximately $32,000, in
contrast to the presentence report's calculation of approximately $18,000. The trial court ordered restitution of
approximately $27,000.
The State is correct that
Dennis did not object to its proposed restitution amount at sentencing. However, after considering the terms of the
plea agreement stated on the record, combined with Dennis's current objection,
we decline to view her silence at sentencing as a waiver. If that is our conclusion, the State argues
that amendment of the restitution order is not the appropriate remedy. Rather, we should remand for an evidentiary
hearing to confirm that Dennis is arguing that the uncharged conduct was not
read in, thereby leaving open the possibility of prosecution for those
offenses. We agree. At that time the parties can also address
various other computational discrepancies that were noted on appeal.
Dennis also argues that
the trial court erred by denying, without a hearing, her postconviction motion
seeking sentence modification. The
court must hold an evidentiary hearing when a postconviction motion alleges
facts which would entitle the defendant to relief. State v. Bentley, 201 Wis.2d 303, 309, 548 N.W.2d
50, 53 (1996).
Dennis asserts that her
motion presented a new factor which should have been considered by the trial
court. She argues that the new
information concerned Marsha Jones, which was the name on one of the bank
accounts. The presentence report stated
that Dennis told the investigator the account had been opened with Jones's
consent, that they went shopping together, and that much of the merchandise was
purchased for Jones. The report stated
that police and the investigator could not reach Jones.
Dennis's postconviction
motion asserted further details about Jones and her involvement in the
crimes. Dennis argues that if the court
had been made aware of Jones's role in the conspiracy, the information could
have mitigated Dennis's sentence, and the court would have been informed that
Dennis did not keep much of the merchandise and did not initiate the check
scheme.
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 in existence, it was
unknowingly overlooked by all of the parties." State v. Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609,
611 (1989). Whether the defendant has
demonstrated the existence of a new factor is a question of law we review de
novo. Id.
The additional
information about Jones was not a new factor.
Dennis's knowledge about Jones's involvement was in existence at the
time of sentencing and was at least partly conveyed to the trial court through
the presentence report. To the extent
that the information was not completely conveyed, Dennis could have provided
further information at sentencing.
There is no assertion in her postconviction motion that the information
was unknowingly overlooked. Because the
motion did not allege facts which demonstrate the existence of a new factor,
the court was not obliged to hold a hearing on the motion.
On remand, the trial
court shall hold an evidentiary hearing on restitution as described in this
opinion and amend the restitution order as necessary.
By the Court.—Judgments
affirmed; order denying postconviction motion affirmed in part and reversed in
part; restitution order reversed and cause remanded for further proceedings.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.