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. |
No. 95-1870
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
FRANK
COWAN,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Rock County: JAMES E.
WELKER, Judge. Affirmed.
Before
Dykman, P.J., Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
PER
CURIAM. Frank Cowan appeals from an order denying his
postconviction motion for sentence modification under § 974.06, Stats.
Cowan argues that the trial court erroneously exercised its discretion
by sentencing him to an excessive sentence and denying his motion for an
evidentiary hearing on sentence modification.
Because we conclude that Cowan failed to allege facts required for
relief under § 974.06, we affirm.
Cowan
pled guilty to three counts of delivery of cocaine pursuant to a plea agreement
in which the State agreed to recommend a sentence of no more than fifteen
years. The maximum possible sentence
was twenty-five years. The trial court
sentenced Cowan to five years on each count to run consecutively. Cowan filed a § 974.06, Stats., motion for sentence
modification. The trial court denied
the motion, and Cowan appeals.
Cowan
alleges that the trial court imposed a sentence which "shocks the public
sentiment, is outrageous and excessive and is the product of an erroneous
exercise of discretion." He seeks
modification of his sentence under § 974.06, Stats., and argues that the denial of his motion for an
evidentiary hearing on the matter was an erroneous exercise of discretion.
A
sentence can be challenged under § 974.06, Stats.,
if it is imposed in violation of the United States or Wisconsin Constitutions
or exceeds the maximum authorized sentence.
Section 974.06(1). A
§ 974.06 motion does not reach procedural errors that themselves do not
reach constitutional or jurisdictional status.
State v. Nicholson, 148 Wis.2d 353, 360, 435 N.W.2d 298,
301 (Ct. App. 1988). The grounds for a
§ 974.06 motion are narrow and preclude all claims not expressly
enumerated. Mack v. State,
93 Wis.2d 287, 292, 286 N.W.2d 563, 565 (1980).
Cowan
does not raise issues cognizable under § 974.06, Stats. He does not
allege facts which raise the constitutional or jurisdictional issues required
for such a motion. First, erroneous
exercise of discretion in the imposition of a lawful sentence is challenged by
a motion for modification of the sentence, not a § 974.06 motion. Hall v. State, 66 Wis.2d 630,
633‑34, 225 N.W.2d 493, 495 (1975).
An erroneous exercise of sentencing discretion within the statutorily
authorized range does not amount to a violation of a constitutional right. Id. Second, the possibility of new factors which might otherwise
justify a modification of sentence is not a jurisdictional or constitutional
error as required for § 974.06 relief. State
v. Flores, 158 Wis.2d 636, 646, 462 N.W.2d 899, 903 (Ct. App. 1990), overruled
on other grounds, State v. Knight, 168 Wis.2d 509, 519 n.6,
484 N.W.2d 540, 544 (1992).
The
Eighth Amendment to the United States Constitution prohibits the infliction of
cruel and unusual punishment. Though
Cowan does not argue that his sentence violates the Eighth Amendment, he
asserts that it shocks the public sentiment.
We will assume that Cowan is asserting an Eight Amendment violation, a
matter cognizable in a § 974.06, Stats.,
motion.
The test for
determining if a sentence is cruel and unusual is whether the sentence is 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.
State v. Hermann, 164 Wis.2d 269, 282, 474 N.W.2d 906, 911 (Ct. App.
1991).
In
Hermann, we determined that a three-year mandatory minimum
sentence for knowingly engaging in an illegal drug sale in a statutorily
protected zone was not cruel and usual punishment. Id. We
noted that such a sentence was lenient compared with the sentences for drug
possession found not to violate the Eighth Amendment in Hutto v. Davis,
454 U.S. 370 (1982), and Harmelin v. Michigan, 501 U.S. 957
(1991). Id. at 282-83,
474 N.W.2d at 911.
We
conclude that Cowan's sentence would not violate the judgment of reasonable
persons concerning what is right and proper because the sentence was lenient
under the circumstances. Contrary to
Cowan's assertion, the record shows that this is the second time he has been
convicted of a drug offense. Cowan's
individual five-year sentences do not shock public sentiment and do not violate
the Eighth Amendment to the United States Constitution. It is within the trial court's discretion to
determine whether the sentences are to be served concurrently or consecutively.
By
the Court.—Order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.