District III/IV
December 3, 2013
To:
Hon. Scott R. Needham
Circuit Court Judge
St. Croix County Courthouse
1101 Carmichael Road
Hudson, WI 54016
Lori N. Meyer
Clerk of Circuit Court
St. Croix County Courthouse
1101 Carmichael Road
Hudson, WI 54016
Eric G. Johnson
District Attorney
1101 Carmichael Road
Hudson, WI 54016
Christine A. Remington
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Dennis Schertz
Schertz Law Office
P.O. Box 133
Hudson, WI 54016
You are hereby notified that the Court has entered the following opinion and order:
|
|
|
|
|
|
|
|
|
|
State of Wisconsin v. Kray Avril Burkart (L.C. # 2009CF258) |
|
|
|
|
|
Before Higginbotham, Sherman and Kloppenburg, JJ.
Kray Burkart appeals a judgment convicting him of
possessing a firearm in violation of a court order, fleeing a police officer,
and carrying a concealed weapon. See Wis.
Stat. § 941.29(2)(d) (2011-12).[1] On appeal, Burkart argues that he is entitled
to sentence modification based on a new factor.
Based upon our review of the briefs and record, we conclude at
conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21. We summarily affirm.
Burkart was sentenced after a jury trial, with certain
conditions, and was ordered to serve two years and three months of initial
confinement and five years of extended supervision. Burkart filed a motion for sentence
modification based on a new factor. He
asserted that he was not receiving mental health therapy or counseling while
incarcerated and that his mental and physical health had worsened. He also asserted that he had received a new
diagnosis of chronic borderline personality disorder and adjustment disorder. The circuit court denied the motion after a
hearing, concluding that the changes in Burkart’s physical and mental health were
not a new factor for the purpose of sentence modification. Burkart filed a motion for reconsideration,
which was denied. Burkart now appeals.
A new factor must be “highly relevant to the
imposition of sentence, but not known to the trial judge at the time of
original sentencing[.]” Rosado
v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). We are not persuaded that that is the case
here. Although Burkart did receive a new
mental health diagnosis after being incarcerated, our review of the sentencing
transcript indicates that the circuit court was well aware of Burkart’s other
mental health problems, which were significant, as well as his physical health
issues at the time of sentencing. The
court stated at sentencing that it hoped that mental health treatment,
cognitive intervention, AODA assessment, and other services would be
helpful. However, the court was careful
to say that Burkart “maybe” would benefit from such services, and that it could
“only hope” that these types of treatments and assessments would assist
him.
The sentencing transcript shows that the circuit court
recognized that Burkart had significant needs with respect to his mental and
physical health, but was uncertain whether he would show improvement once taken
into the custody of the Department of Corrections. Our supreme court has held that “information
concerning rehabilitation cannot be a new factor for sentence modification” and
that “consideration of such information is more properly considered by the parole
system.” State v. Kluck, 210 Wis.
2d 1, 8, 563 N.W.2d 468 (1997); Jones v. State, 70 Wis. 2d 62, 72,
233 N.W.2d 441 (1975). Therefore, we
agree with the circuit court that the changes in Burkart’s physical and mental
heath, and the Department of Corrections’ asserted failure to provide treatment
that the circuit court believed he might benefit from, are not new factors
warranting sentence modification. If
Burkart is dissatisfied with the treatment he is receiving for his mental and
physical health issues while incarcerated, those concerns are more properly
addressed to the Department of Corrections or through an action filed under 42 U.S.C.
§ 1983.
Burkart also argues on appeal that the judgment of
conviction should be amended to remove, as a condition of extended supervision,
the requirement that he refrain from having any contact with the mother of his
daughter. He argues that his daughter’s
mother is not a victim in this case. We
note that circuit courts have broad discretion in imposing conditions of
extended supervision as long as the conditions are reasonable and
appropriate. State v. Koenig, 2003 WI
App 12, ¶7, 259 Wis. 2d 833, 656 N.W.2d 499.
A circuit court has authority pursuant to Wis. Stat. § 973.049(2) to restrict contact with
co-actors and victims. However, the
court’s authority is not limited to restricting contact between a defendant and
co-actors or victims. See, e.g., State v. Trigueros, 2005 WI App
112, ¶¶10-14, 282 Wis. 2d 445, 701 N.W.2d 54 (upholding a prohibition on
contact with the “drug community”); State
v. Simonetto, 2000 WI App 17, ¶7, 232 Wis. 2d 315, 606 N.W.2d 275
(upholding a prohibition on defendant not to go where children congregate).
As the State points out in its brief, the circuit
court took judicial notice at the preliminary hearing of an injunction against
Burkart on behalf of the mother of his daughter, effective from June 10, 2009
through June 10, 2013. The circuit court
ordered Burkart not to have contact with the mother as a condition of his
bond. Although his daughter’s mother was
not a victim or co-actor in this case, we are satisfied that the court was
within the proper exercise of its discretion when it included a no contact
provision as a condition of Burkart’s extended supervision.
IT IS ORDERED that the judgment is summarily affirmed under Wis. Stat. Rule 809.21(1).
Diane M. Fremgen
Clerk of Court of Appeals