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COURT OF APPEALS DECISION DATED AND FILED October 12, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
Cir. Ct. No. 2004CF4624 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Andre M. Hicks, Defendant-Appellant. |
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APPEAL from an order of the circuit court for Milwaukee County: jeffrey a. conen, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Andre M. Hicks, pro se, appeals an order denying his motion to modify his sentence. He argues that the circuit court should modify his sentence because the circuit court relied on unreasonable and unsupported facts in sentencing him and did not adequately explain why it chose to run his sentences consecutively rather than concurrently. We affirm.
¶2 Hicks was convicted in 2005, after a jury trial, of armed robbery with use of force, first-degree reckless injury, and possession of a firearm by a felon. The circuit court sentenced him to consecutive sentences totaling thirty-two years of imprisonment, with twenty years of initial confinement and twelve years of extended supervision.
¶3 Hicks contends that the circuit court should modify his
sentence because the circuit court relied on unreasonable and unsupported facts
in sentencing him and did not adequately explain why it chose to run his
sentences consecutively rather than concurrently. Pursuant to Wis.
Stat. § 973.19
(2009-10),[1]
a defendant may move for sentence modification within ninety days of
sentencing. Hicks filed his motion five
years after he was convicted of the crimes, well outside the time limits
imposed under § 973.19. While Hicks
could have raised this claim on direct appeal, he did not do so. “[A]ny claim that could have been raised on
direct appeal or in a previous Wis. Stat. § 974.06 … postconviction motion
is barred from being raised in a subsequent § 974.06 postconviction
motion, absent a sufficient reason.” State
v. Lo, 2003 WI 107, ¶2, 264 Wis. 2d 1, 665 N.W.2d 756 (footnote
omitted); State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517
N.W.2d 157 (1994). Hicks has provided no
reason, much less a sufficient reason, for failing to previously raise his
sentence modification claim.
¶4 To circumvent the Escalona-Naranjo procedural bar, Hicks argues that the circuit court’s failure to explain its reasons for imposing consecutive sentences constitutes a “new factor” entitling him to sentence modification. A motion for sentence modification based on a new factor may be brought at any time. 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, even though it was then in existence, it was unknowingly overlooked by all of the parties.’” State v. Harbor, 2011 WI 28, ¶40, 333 Wis. 2d 53, 797 N.W.2d 828 (citation omitted). It goes without saying that the fact that the circuit court sentenced him consecutively, rather than concurrently, has been known to Hicks since the day the sentence was imposed. Since the information is not new, it does not constitute a “new factor” entitling Hicks to resentencing.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.