COURT OF APPEALS

DECISION

DATED AND FILED

 

October 5, 2010

 

A. John Voelker

Acting Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports. 

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See Wis. Stat. § 808.10 and Rule 809.62. 

 

 

 

 

Appeal No. 

2009AP2926-CR

Cir. Ct. No.  2001CF4831

STATE OF WISCONSIN   

IN COURT OF APPEALS

 

DISTRICT I

 

 

 

 

State of Wisconsin,

 

                        Plaintiff-Respondent,

 

            v.

 

Jose G. Santiago,

 

                        Defendant-Appellant.

 

 

 

            APPEAL from an order of the circuit court for Milwaukee County:  martin j. donald, Judge.  Affirmed.

            Before Curley, P.J., Kessler and Brennan, JJ.

1        PER CURIAM.    Jose G. Santiago, pro se, appeals an order denying his motion to modify his sentence.  He challenges the DNA surcharge imposed by the circuit court, arguing that the court failed to adequately explain why it was

imposed.  See State v. Cherry, 2008 WI App 80, ¶10, 312 Wis. 2d 203, 752 N.W.2d 393 (when the circuit court exercises discretionary power to impose a DNA surcharge, it must explain its reasons for doing so).  We affirm.

2        Santiago was convicted of first-degree intentional homicide in 2002.  After a direct no-merit appeal and three subsequent pro se postconviction motions, including two appeals taken from the circuit court’s orders denying those motions, Santiago filed the current motion, arguing for a second time a DNA surcharge should not have been assessed against him.  Santiago contends that he should be allowed to bring this challenge to his sentence nearly nine years after his conviction, despite all of his prior motions, because it is based on a “new factor,” the Cherry case decided by our court in 2008.  A motion for sentence modification based on a “new factor” can be made at any time.  State v. Noll, 2002 WI App 273, ¶12, 258 Wis. 2d 573, 653 N.W.2d 895.  “The term ‘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 … it was unknowingly overlooked by all of the parties.”  State v. Kluck, 210 Wis. 2d 1, 7, 563 N.W.2d 468 (1997). 

3        Our recent decision in Cherry does not qualify as a new factor.  The supreme court has previously held that a post-sentencing change in the law is not a new factor for purposes of sentence modification because it is not highly relevant to the imposition of the original sentence.  See State v. Trujillo, 2005 WI 45, ¶30, 279 Wis. 2d 712, 694 N.W.2d 933 (a reduction in the maximum confinement time made in the truth-in-sentencing law does not constitute a new factor because the change was not highly relevant to the imposition of the original sentence).  While our decision in Cherry is not so much a change in the law as it is an application of existing law in a particular fact situation, even if it could be characterized as a “change” in the law, the Cherry court’s ruling that the circuit court did not adequately explain its sentencing decision in that case was not highly relevant to the circuit court’s sentencing decision, made years earlier, in this case.  Since Santiago has not shown that a new factor exists, his motion to modify his sentence is untimely.

            By the Court.—Order affirmed.

            This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)5.