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. 95-1962-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES L. ALLEN,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Dane County:
MICHAEL B. TORPHY, JR., Judge. Affirmed.
Before Dykman, P.J.,
Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
PER
CURIAM. James Allen appeals from an order denying his motion
for sentence modification. The issue is
whether the trial court properly determined that Allen failed to present a new
factor that would have justified resentencing.
We conclude that the grounds for Allen's motion did not constitute a new
factor, and therefore affirm.
In 1986, sentence was
withheld and Allen received probation on a conviction for first-degree sexual
assault of a child. In 1992, Allen
commenced serving the term of probation after his release from prison on other charges. In 1993, his probation was revoked for
multiple violations of his conditions of probation, including contact with his
grandchildren. In 1994, the court
imposed a prison sentence of eight years.
Allen never sought review of the probation revocation decision. At the sentencing hearing he admitted
violating his terms of probation.
This appeal concerns
Allen's subsequent motion for sentence modification. In that motion, for the first time, Allen contended that the
probation condition prohibiting contact with his grandchildren was unlawful
because it was imposed by the Department of Corrections and conflicted with the
court ordered terms of probation. The
court denied relief, holding that Allen's contention did not constitute a new
factor and that the motion was not a timely or appropriate way to attack the
revocation proceeding.
The trial court properly
determined that Allen's challenge to his probation conditions did not
constitute a new factor. A new factor
consists of facts highly relevant to the sentence but unknown to the judge at
the time of the sentencing because they were not then in existence or
unknowingly overlooked by the parties. State
v. Harris, 174 Wis.2d 367, 379, 497 N.W.2d 742, 747 (Ct. App.
1993). At the time of sentencing, the
trial court knew what the conditions of probation were and knew that Allen had
violated them, including the fact that he had contacted his grandchildren. The court also knew that Allen admitted
violating the conditions of probation.
His subsequent argument that probation was unlawfully revoked is not a
new factor. It is an untimely attempt
to collaterally attack the revocation.
Additionally, the fact
that Allen lived for a time with his daughter and grandchildren was not highly
relevant to Allen's sentence. The court
sentenced him based on his underlying offense, his record of other crimes, and
a number of other, far more serious, probation violations.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.