CA Blank Order

Hon. Richard J. Sankovitz

Circuit Court Judge

Safety Building

821 W. State St.

Milwaukee, WI 53233

John Barrett

Clerk of Circuit Court

Room 114

821 W. State Street

Milwaukee, WI 53233

Karen A. Loebel

Asst. District Attorney

821 W. State St.

Milwaukee, WI 53233

Christopher G. Wren

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Damien Tyshaun Green 384855

Wisconsin Secure Program Facility

P.O. Box 9900

Boscobel, WI 53805-9900

Jeremy C. Perri

First Asst. State Public Defender

735 N. Water St., #912

Milwaukee, WI 53203

You are hereby notified that the Court has entered the following opinion and order:



	2012AP776	State of Wisconsin v. Damien Tyshaun Green (L.C. # 2008CF991)

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

Damien Tyshaun Green, pro se, appeals the circuit court’s order denying his motion to withdraw his guilty plea and to modify his sentence. Green argues: (1) that he is entitled to withdraw his guilty plea in order to correct a manifest injustice; and (2) that his sentence should be modified because his trial lawyer ineffectively represented him by failing to file pretrial motions on his behalf and by waiving his rights under the Fourth Amendment. We affirm.

Green first argues that he should be allowed to withdraw his guilty plea in order to correct a manifest injustice. Green did not raise this issue in the circuit court. To the contrary, he specifically stated in his postconviction motion that he did not want to withdraw his guilty plea; he wanted his sentence to be modified. We generally will not consider issues that are raised for the first time on appeal. See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997). There is no reason to deviate from that general rule here. We will not consider this argument.

Green next argues that his sentence should be modified because his trial lawyer ineffectively represented him by failing to file pretrial motions on his behalf and by waiving his rights under the Fourth Amendment without explaining to Green what he was doing. A motion to modify a sentence brought after the time for direct appeal has expired must be premised on the existence of a new factor, with limited exceptions not applicable here. See State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. 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.’” Id., ¶40 (citation omitted). Green does not allege that a new factor exists. Instead, he argues that his sentence should be modified based on his claim of ineffective assistance of counsel. While a successful claim of ineffective assistance of counsel may be grounds for reversal of a conviction, an allegation of ineffective assistance of counsel is not grounds to modify a sentence. See id., ¶35. We reject Green’s argument that his sentence should be modified based on alleged ineffective assistance of counsel.

This is the third time Green has moved to modify his sentence since his conviction. Green may not repeatedly file postconviction motions raising the same claims. We warn Green that if he continues to file repetitive motions, we may consider imposing sanctions against him, including restricting the circumstances under which he is allowed to file motions in the circuit court or pursue appeals in this court. See State v. Casteel, 2001 WI App 188, ¶¶25-27, 247 Wis. 2d 451, 634 N.W.2d 338 (sanctions imposed against a litigant because he “abus[ed] the appellate process by repetitively litigating the same matters”).

IT IS ORDERED that the order of the circuit court is summarily affirmed.