District II
May 28, 2014
To:
Hon. Andrew T. Gonring
Circuit Court Judge
Washington County Courthouse
P.O. Box 1986
West Bend, WI 53095-1986
Theresa Russell
Clerk of Circuit Court
Washington County Courthouse
P.O. Box 1986
West Bend, WI 53095-1986
Mark Bensen
District Attorney
Washington County
P.O. Box 1986
West Bend, WI 53095-7986
Christine A. Remington
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Cory A. Hewitt 191547
Stanley Corr. Inst.
100 Corrections Drive
Stanley, WI 54768
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Cory A. Hewitt (L.C. # 2010CF269) |
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Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
Cory A. Hewitt appeals pro se
from an order denying his postconviction motion to vacate, set aside, or correct
his sentence. Based on our review of the briefs and record, we
conclude at conference that this case is appropriate for summary
disposition. See Wis. Stat. Rule
809.21 (2011-12).[1] We affirm the order of the circuit court.
Hewitt was convicted following a no contest plea to
operating while intoxicated as a sixth offense.
The circuit court sentenced him to two years and six months of initial
confinement followed by three years of extended supervision.
Hewitt filed a postconviction motion to vacate, set aside, or correct his sentence. In it, he claimed that he was denied the right to be sentenced based on accurate information, that he never read or received a copy of the presentence investigation (PSI) report, that his attorney did not contradict the State’s case, that he was denied his right to allocution, that the court erroneously minimized his health problems, and that the PSI report included erroneous information. The circuit court denied the motion. Hewitt did not appeal that decision.
Approximately one year later, Hewitt filed a second postconviction motion to vacate, set aside, or correct his sentence. In it, he raised many of the same issues that he presented in his first postconviction motion. He also claimed that his attorney was ineffective for failing to obtain and produce medical records to support a plea of not guilty by reason of mental disease or defect. Additionally, Hewitt sought sentence modification on the ground that his diagnosis of hyperthyroidism constituted a new factor. The circuit court denied the motion, refusing to reconsider the issues previously litigated and rejecting the claims of ineffective assistance of counsel and a new factor. This appeal follows.
On appeal, Hewitt contends that the circuit court erred in denying his latest motion to vacate, set aside, or correct his sentence. We disagree.
With respect to the issues previously litigated by Hewitt, the circuit court properly refused to reconsider them. As this court explained in State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991), “A matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue.”
With respect to Hewitt’s claim
of ineffective assistance of counsel, the circuit court properly rejected
it. Although not cited by Hewitt, his
second postconviction motion was brought, in part, pursuant to Wis. Stat. § 974.06. Any claim that could have been raised in a prior postconviction
motion or direct appeal cannot form the basis for a subsequent motion under
§ 974.06 unless the defendant demonstrates a sufficient reason for failing
to raise the claim earlier. State v. Escalona–Naranjo,
185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994).
Because Hewitt does not provide a sufficient reason for why he did not
raise his ineffective assistance of counsel claim earlier, the claim is
procedurally barred.
Finally, with respect to Hewitt’s
claim of a new factor, the circuit court properly rejected it. 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 …
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 (quoting Rosado v. State, 70
Wis. 2d 280, 288, 234 N.W.2d 69 (1975)).
Whether a fact constitutes a new factor is a question of law that this
court decides independently. See id., ¶33. Here, Hewitt does not explain how his
diagnosis of hyperthyroidism is a fact highly relevant to his sentence,
which was based primarily on protection of the public and deterrence to others
in the community. As a result, he failed
to demonstrate that a new factor existed.
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