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COURT OF APPEALS DECISION DATED AND RELEASED January 30, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2317-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KENNETH A. POPE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DANIEL L. KONKOL, Judge. Affirmed.
SCHUDSON, J.[1] Kenneth A. Pope appeals from a judgment of
conviction, following his guilty plea, for battery, contrary to
§ 940.19(1), Stats. He argues that he was deprived of his due
process rights because the prosecutor allegedly breached the plea
agreement. He also argues that the
trial court sentenced him based on inaccurate information and placed too much
emphasis on his prior criminal record.
This court rejects Pope's arguments because he failed to present his
issues to the trial court prior to raising them on appeal. Therefore, this court affirms the judgment.
On January 7, 1995, Pope
was arrested for physically attacking Nora Coon, the grandmother of his
child. According to the complaint,
which formed the factual basis for Pope's plea, Pope entered the residence of
his “on again/off again” girlfriend and encountered Coon. Pope was intoxicated, began “screaming and
swearing,” and refused to leave. He
ripped the phone out of the wall when Coon attempted to call the police. He caused property damage. He threw a high chair at Coon, threw her to
the ground, punched her several times, and “stepped” on her head and face
several times. During Pope's beating of
Coon, the girlfriend's son ran out of the residence to obtain help. Pope tried to leave the scene but was
detained by neighbors until the police arrived.
A criminal appellant
alleging error in sentencing (and not following the procedure under
§ 973.19, Stats.) must file
postconviction motions with the trial court prior to filing an appeal unless
“the grounds are sufficiency of the evidence or issues previously raised.” Because Pope's arguments on appeal do not
fall under either exception to the prerequisite of filing postconviction
motions with the trial court, this court rejects his arguments.
Additionally, this court
declines to address his arguments under its discretionary authority set out in
§ 752.35, Stats. Whether the trial court considered
inaccurate sentencing information or whether the prosecutor breached the plea
agreement present factual inquiries that are not within this court's purview.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.