COURT OF APPEALS DECISION DATED AND RELEASED November 5, 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. 95-2972-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JONATHAN P. COLE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Jonathan P. Cole appeals from a judgment of conviction
for armed robbery. See §
943.32(1)(b) & (2), Stats. The judgment was entered on his guilty
plea. Cole also appeals from an order
denying his postconviction motion seeking sentence modification. Cole argues that defects in the initial
appearance deprived the trial court of personal jurisdiction and violated due
process. Cole also argues that a new
factor warrants sentence modification.
We affirm.
Cole, on parole for
armed robbery, committed four armed robberies. The case was plea bargained and
Cole pled guilty to one of the crimes.
The remaining armed robberies were not charged, but were to be read-in
at sentencing. Cole was sentenced to 40 years in prison. Cole subsequently filed a postconviction
motion seeking sentence modification, claiming that a new factor existed that
justified reducing his sentence. The
trial court denied Cole's motion.
Cole argues that at his
initial appearance he did not receive a copy of the complaint, that the
complaint was not read to him, and that the penalties for imprisonment were misstated
by the court commissioner, all in violation of § 970.02(1)(a), Stats.[1] Cole, however, did not raise these matters
in the trial court prior to his guilty plea.
“[O]bjections based on defects in the institution of proceedings must be
raised before trial by motion or be deemed waived.” Lampkins v. State, 51 Wis.2d 564, 570, 187 N.W.2d
164, 167 (1971). Cole has waived the
alleged defects in the initial appearance.
Further, Cole does not contend that there were errors at his plea hearing
as a result of the commissioner's alleged failure to comply with
§ 970.02(1)(a) or otherwise. Thus,
we reject Cole's request that we address the alleged failure to comply with
§ 970.02(1)(a) “in the best interest of justice” despite the waiver.[2]
Cole also argues that he
was denied his due-process right to notice of the charge against him by the
alleged failure to comply with § 970.02(1)(a), Stats., at the initial hearing. Once a defendant has pled guilty, he or she may not raise claims
of constitutional violations that occurred prior to the plea. Mack v. State, 93 Wis.2d 287,
293, 286 N.W.2d 563, 566 (1980). Since
Cole entered a plea of guilty to the charge of armed robbery despite the
alleged due-process violation, he has waived any such claim.
Finally, Cole argues
that a new factor justified sentence modification. He states that, during sentencing, the sentencing court was under
the mistaken impression that the presentence writer had recommended that Cole
receive a 40-year sentence when, in fact, the presentence writer meant to
recommend a 20-year sentence.
“A trial court may, in
its discretion, modify a criminal sentence upon a showing of a new
factor.” State v. Michels,
150 Wis.2d 94, 96, 441 N.W.2d 278, 279 (Ct. App. 1989). “[T]he phrase `new factor' refers to 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 then in existence, it was
unknowingly overlooked by all of the parties.” Id. (citation
omitted). “[A] `new factor' must be an
event or development which frustrates the purpose of the original
sentence. There must be some connection
between the factor and the sentencing—something which strikes at the very
purpose for the sentence selected by the trial court.” Id., 150 Wis.2d at 99, 441
N.W.2d at 280. Whether a set of facts
is a “new factor” is a question of law that we review without deference to the
trial court. State v. Hegwood,
113 Wis.2d 544, 546-547, 335 N.W.2d 399, 401 (1983).
The “new factor” Cole
sets forth in his argument is not a “new factor” within the meaning of Michels
because it did not frustrate the purpose of the original sentencing. Any confusion created by the presentence
writer was immaterial because the sentencing court indicated that it did not
rely on the recommendation contained in the report although the recommendation
was mentioned during the sentencing hearing.
In its ruling on Cole's motion to modify his sentence, the trial court
explained that it used the presentence report to learn about Cole's history and
character, including his prior criminal and juvenile records. The trial court applied the appropriate
sentencing criteria. Any error in the
presentence writer's sentencing recommendation, therefore, did not frustrate
the purpose of the original sentence; it does not constitute a new factor
requiring sentencing modification.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] A court commissioner
is authorized to perform the same duties of a judge at an initial
appearance. See § 757.69(1)(b), Stats.
Section 970.02(1)(a), Stats., provides:
Duty of a judge at the initial
appearance. (1) At the initial appearance the
judge shall inform the defendant:
(a) Of the charge against the defendant and shall furnish the defendant with a copy of the complaint which shall contain the possible penalties for the offenses set forth therein. In the case of a felony, the judge shall also inform the defendant of the penalties for the felony with which the defendant is charged.