District II
May 1, 2013
To:
Hon. Dale L. English
Circuit Court Judge
Fond du Lac County Courthouse
160 South Macy Street
Fond du Lac, WI 54935
Ramona Geib
Clerk of Circuit Court
Fond du Lac County Courthouse
160 South Macy St
Fond du Lac, WI 54935
Eric Toney
District Attorney
Fond du Lac County
160 South Macy Street
Fond du Lac, WI 54935
Sally L. Wellman
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
John D. Bunch 85900
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:
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State of Wisconsin v. John D. Bunch (L.C. # 1992CF10) |
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Before Brown, C.J., Neubauer, P.J., and Reilly, J.
John Bunch appeals from a circuit court order denying his sentence modification motion. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. Wis. Stat. Rule 809.21 (2011-12).[1] We affirm.
Bunch was convicted in 1993 of four counts of first-degree sexual assault of a child (via sexual contact and sexual intercourse). We affirmed his conviction in 1995. State v. Bunch, 191 Wis. 2d 501, 529 N.W.2d 923 (Ct. App. 1995). In that appeal, we rejected Bunch’s challenge to the circuit court’s denial of a mistrial motion and the exclusion of evidence of a prior sexual assault of the victim. Id. at 505.
After we affirmed his
conviction, Bunch brought several Wis.
Stat. § 974.06 motions challenging his conviction. All of those efforts were unsuccessful. We held in State v. Bunch, No.
2002AP1304, unpublished op. and order at 4 (WI App Nov. 20, 2002), that Bunch’s
most recent claim of ineffective assistance of trial counsel was barred under State
v. Escalona-Naranjo, 185
The motion which is the subject of this appeal sought sentence modification due to new factors and the progress Bunch had made in prison. He argued that the circuit court did not employ the sentencing guidelines and the court sentenced Bunch based on a prior sexual assault conviction he did not have. The circuit court denied the motion because the motion was untimely, Bunch had filed numerous postconviction motion and appeals, and his progress in prison did not constitute a new factor.
The State argues on appeal that Bunch’s sentence modification motion was barred by Escalona. We agree. Escalona held as follows:
[A]ll claims of error that a criminal defendant can bring should be consolidated into one motion or appeal, and claims that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 postconviction motion absent a showing of a sufficient reason for why the claims were not raised on direct appeal or in a previous § 974.06 motion.
State v. Lo, 2003 WI 107, ¶44, 264 Wis. 2d 1, 665 N.W.2d 756. Bunch’s motion does not offer a reason for his failure to raise his new factor claim in any of his numerous prior challenges to his conviction. Escalona applies, and the circuit court properly denied Bunch’s motion.
Even if Escalona did not apply,
we would reject Bunch’s claims. Even if
the guidelines applied to Bunch’s conviction, which we need not decide, Bunch’s
guidelines claim is moot. Wisconsin Stat. § 973.017(2)(a),
requiring the sentencing court to consider applicable sentencing guidelines,
was repealed effective July 1, 2009.
2009 Wisconsin Act 28, s. 3386m.
Prior to repeal of that provision, the Wisconsin Sentencing Commission
was defunded. State v. Barfell, 2010 WI
App 61, ¶4, 324 Wis. 2d 374, 782 N.W.2d 437, review denied, 2011 WI
15, 331 Wis. 2d 46, 794 N.W.2d 900.
Barfell holds that the repeal of § 973.017(2)(a) is
applied retroactively. Barfell,
324 Wis. 2d 374, ¶8. Bunch’s
guidelines issue is moot. Id., ¶9.
We would also reject Bunch’s
complaint that the circuit court erroneously considered his history of sexual
assault. The circuit court properly
considered Bunch’s history of sexual assaults, and Bunch did not dispute that
history at sentencing or after. A
circuit court need not restrict its consideration of prior conduct to
circumstances where the defendant was convicted of such conduct. State v. Arredondo, 2004 WI App 7, ¶¶53-55, 269 Wis. 2d 369, 674 N.W.2d 647 (sentencing
court may consider facts of offenses in which defendant was not charged or for
which defendant was acquitted).
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