District II
April 1, 2015
To:
Hon. Michael J. Piontek
Circuit Court Judge
Racine County Courthouse
730 Wisconsin Avenue
Racine, WI 53403
Rose Lee
Clerk of Circuit Court
Racine County Courthouse
730 Wisconsin Avenue
Racine, WI 53403
W. Richard Chiapete
District Attorney
730 Wisconsin Avenue
Racine, WI 53403
Eileen W. Pray
Asst. Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Parish D. Perkins 318937
Fox Lake Corr. Inst.
P.O. Box 200
Fox Lake, WI 53933-0200
You are hereby notified that the Court has entered the following opinion and order:
|
|
|
|
|
|
|
State of Wisconsin v. Parish D. Perkins (L.C. # 1996CF252) |
|
|
|
|
Before Neubauer, P.J., Reilly and Gundrum, JJ.
Parish D. Perkins appeals pro se from an order denying his motion for sentence modification. Based on 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 (2013-14).[1] We affirm the order of the circuit court.
In August 1996, Perkins was convicted following a guilty plea of first-degree reckless homicide. The circuit court sentenced Perkins to thirty-five years in prison.
In April 2014, Perkins filed a motion for sentence
modification on the ground that a new factor existed. Specifically, he complained that the
department of corrections had done away with discretionary parole, which was
contrary to the expectations of the circuit court at sentencing. In support of this argument, Perkins cited a
statement by the circuit court at a subsequent postconviction motion hearing observing,
“35 years doesn’t mean 35.”[2] The circuit court summarily denied Perkins’
motion. This appeal follows.
A circuit court may modify a defendant’s sentence upon
a showing of a new factor. See State v. Harbor, 2011 WI 28, ¶35,
333 Wis. 2d 53, 797 N.W.2d 828. The
analysis involves a two-step process. Id.,
¶36. First, the defendant must
demonstrate by clear and convincing evidence that a new factor exists. Id.
Second, the defendant must show that the new factor justifies sentence
modification. Id., ¶¶37-38. 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 … it was unknowingly overlooked by all of the parties.’” Id., ¶40 (quoting Rosado
v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975)). Whether a fact or set of facts constitutes a
new factor is a question of law that this court decides independently. See Harbor, 333 Wis. 2d 53, ¶33. If the fact or set of facts do not constitute
a new factor as a matter of law, we need go no further in our analysis. Id., ¶38.
Here, we are not persuaded that Perkins has
demonstrated the existence of a new factor for at least two reasons. First, he has failed to show that there has
been any change in parole policy for defendants like him who were sentenced
before truth-in-sentencing. Second, he
has failed to show that parole policy was a fact highly relevant to the
imposition of his sentence. Again, the statement
made by the circuit court that, “35 years doesn’t mean 35,” did not come from
the sentencing hearing. Rather, it came
from a subsequent postconviction motion hearing on a different matter entirely. There is nothing in the sentencing transcript
to suggest that the court considered parole policy when imposing its
sentence. Accordingly, we are satisfied
that it properly denied Perkins’ motion.[3]
Upon the foregoing reasons,
IT IS ORDERED that the order of the circuit court is
summarily affirmed, pursuant to Wis.
Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals
[1] All references to the Wisconsin Statutes are to the 2013-14 version.
[2] The statement was made when denying one of Perkins’ postconviction motions challenging the effectiveness of his trial counsel. The circuit court noted that counsel had gotten Perkins a pretty good deal, which avoided a possible life sentence without parole. In making this point, the court observed that, under the law that existed before truth-in-sentencing, “35 years doesn’t mean 35.”
[3] We do not address Perkins’ constitutional challenge to the parole board, as it was not raised in the circuit court. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 (issues not preserved at the circuit court generally will not be considered on appeal). To the extent we have not addressed any other argument raised by Perkins on appeal, the argument is deemed rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) (“An appellate court is not a performing bear, required to dance to each and every tune played on an appeal.”).