Muhannad M. Salim v. Reed Richardson ( 2019 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 15, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP2433 Cir. Ct. No. 2018CV8541
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN EX REL. MUHANNAD M. SALIM,
PETITIONER-APPELLANT,
V.
REED RICHARDSON WARDEN,
RESPONDENT-RESPONDENT.
APPEAL from an order of the circuit court for Milwaukee County:
JANE V. CARROLL, Judge. Affirmed.
Before Brash, P.J., Kessler and Dugan, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2433
¶1 PER CURIAM. Muhannad M. Salim appeals from the denial of a
habeas corpus action. Salim argues that he should be immediately released from
custody because the circuit court erred in resentencing him and that he was denied
positive adjustment time (PAT) because 2011 Wisconsin Act 38 is an ex post facto
law.1 We affirm.
BACKGROUND
¶2 The following facts are taken from the circuit court’s decision and
order dismissing Salim’s habeas petition. On July 8, 2011, a jury found Salim
guilty of six charges:
• count one: burglary;
• count two: violating a domestic abuse injunction;
• count three: criminal damage to property;
• count four: stalking;
• count five: stalking; and
• count six: felony bail jumping
All of the offenses were committed between June 2010 and July 3, 2010. On
August 26, 2011, Salim was sentenced as follows:
• count one: three years of initial confinement and
three years of extended supervision;
• count two: nine months in the House of Correction
(concurrent to count one);
1
As of the date of this opinion, Salim has been released from prison but remains on
extended supervision. Extended supervision is considered custody for the purposes of a writ of
habeas corpus. See State ex rel. Singh v. Kemper, 2016 WI 67, ¶69, 371 Wis. 2d 127, 883
N.W.2d 86.
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No. 2018AP2433
• count three: nine months in the House of
Correction (concurrent to count one);
• count four: two years and six months of initial
confinement and one year of extended supervision
(consecutive);
• count five: two years and six months of initial
confinement and one year of extended supervision
(consecutive); and
• count six: one year of initial confinement and one
year of extended supervision (consecutive).
The total period of initial confinement was nine years, while the total period of
extended supervision was six years.
¶3 Following sentencing, the Department of Corrections (DOC) filed a
request with the circuit court for sentencing clarification, noting that the period of
initial confinement for counts four and five exceeded the statutory maximum for
Class I felonies. See WIS. STAT. § 940.32(2).2 On November 10, 2011, the circuit
court resentenced Salim, reducing the period of initial confinement for counts four
and five by one year; however, the circuit court also increased the periods of initial
confinement for counts one and six by one year. The effect of the resentencing
was to maintain the total length of Salim’s original sentence. An amended
judgment of conviction was entered.
¶4 Salim then moved to commute the extended supervision on count
one (burglary) to two years. The circuit court granted this motion, thereby
reducing the total extended supervision period to five years and the total length of
sentence to fourteen years. Another amended judgment of conviction was entered.
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2018AP2433
Salim thereafter filed multiple motions for sentence modification, all of which
were denied. Salim appealed, and his appellate counsel filed a no-merit petition.
See State v. Salim, No. 2012AP2795-CRNM, unpublished op. and order (WI App
July 15, 2015). This court affirmed the circuit court’s amended judgment of
conviction. See id.
¶5 On October 15, 2018, Salim, pro se, filed a petition for writ of
habeas corpus. In support of his petition, Salim filed a memorandum alleging that
the circuit court erroneously resentenced him. Salim also alleged that he was
entitled to “relief pursuant to Wis. Stat., 782.01 from [the] ex post facto law of
2011 Wis. Act 38 denying positive adjustment time earned under Wis. Stat.,
302.112 (2009-2010).” Reed Richardson, the warden of Stanley Correctional
Institution, moved to quash the writ. The circuit court quashed the writ, finding
that it had the authority to resentence Salim as it did based on precedent
concerning sentencing errors and that Salim was never denied PAT because he
never petitioned the circuit court to adjust his sentence based on the number of
days of PAT he claimed to have earned, as required by WIS. STAT. § 973.198.
This appeal follows.
DISCUSSION
¶6 On appeal, Salim contends that the circuit court erred when “it
concluded that Salim suffered no ex post facto violation under [2011 Wisconsin]
Act 38 where he never filed for PAT,” and that the circuit court erred in
resentencing him rather than simply reducing his sentence on the counts for which
he was excessively sentenced. We disagree.
¶7 A motion to quash a writ of habeas corpus “challenges the
sufficiency of the petition.” State ex rel. Christie v. Husz, 217 Wis. 2d 593, 598,
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No. 2018AP2433
579 N.W.2d 243 (Ct. App. 1998) (emphasis omitted). The circuit court quashes
the writ “if the facts plead in the petition, when accepted as true, are insufficient to
entitle the petitioner to the relief sought.” Id. “A circuit court’s order denying a
petition for writ of habeas corpus presents a mixed question of fact and law.”
State ex rel. Singh v. Kemper, 2016 WI 67, ¶25, 371 Wis. 2d 127, 883 N.W.2d 86.
Positive Adjustment Time
¶8 Under WIS. STAT. § 302.113(2)(b) (2009-10), an inmate convicted of
non-violent Class F to Class I felonies had the opportunity to earn one day of PAT
for every two days of confinement. Singh, 371 Wis. 2d 127, ¶12. PAT was
earned for every two days that the inmate did not violate any regulation of the
prison or refuse or neglect to perform required or assigned duties. Id. The statute,
enacted in 2009, was repealed under 2011 Wis. Act 38. Singh, 371 Wis. 2d 127,
¶14. “Consequently, after August 3, 2011, prisoners were generally precluded
from earning positive adjustment time.” Id. The Act also created WIS. STAT.
§ 973.198, which “preserved the opportunity for certain individuals to earn early
release based on positive adjustment time earned between October 1, 2009 and
August 3, 2011, but altered the procedures for procuring early release.” Singh,
371 Wis. 2d 127, ¶15. Section 973.198 provides, in relevant part:
(1) When an inmate who is serving a sentence imposed
under s. 973.01 and who has earned positive
adjustment time under s. 302.113, 2009 stats., or under
s. 304.06, 2009 stats., has served the confinement
portion of his or her sentence less positive adjustment
time earned between October 1, 2009, and August 3,
2011, he or she may petition the sentencing court to
adjust the sentence under this section, based on the
number of days of positive adjustment time the inmate
claims that he or she has earned.
(3) Within 60 days of receipt of a petition filed under sub.
(1), the sentencing court shall either deny the petition
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No. 2018AP2433
or hold a hearing and issue an order relating to the
inmate’s sentence adjustment and release to extended
supervision.
(5) If the court determines that the inmate has earned
positive adjustment time, the court may reduce the term
of confinement in prison by the amount of time
remaining in the term of confinement in prison portion
of the sentence, less up to 30 days, and shall lengthen
the term of extended supervision so that the total length
of the bifurcated sentence originally imposed does not
change.
Singh, 371 Wis. 2d 127, ¶15 (citing WIS. STAT. § 973.198).
¶9 The entire statutory scheme centers on an inmate’s petition for PAT.
Only after an inmate has petitioned for PAT does the circuit court either hold a
hearing or deny the petition without a hearing. See WIS. STAT. § 973.198. Salim’s
argument that he is entitled to immediate release because of an ex post facto
violation—that he never received the PAT he earned—fails because Salim never
actually petitioned for PAT as required by the statute. Because Salim never
sought PAT, he was never denied PAT; thus, his sentence was not
unconstitutionally lengthened as he contends. Salim’s argument also assumes that
the circuit court would have granted his petition. Salim ignores the fact that the
decision to reduce a sentence is within the circuit court’s discretion. See
§ 973.198(5) (“If the court determines that the inmate has earned positive
adjustment time, the court may reduce the term of confinement in prison[.]”).
(Emphasis added.) Consequently, Salim is not entitled to immediate release from
prison through this habeas corpus action.
Resentencing
¶10 Salim argues that the circuit court improperly resentenced him
pursuant to WIS. STAT. § 973.13. Salim contends that when the circuit court
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No. 2018AP2433
adjusted his sentence on the stalking counts, it should not have increased his
sentence on two other counts to effect the same aggregate term of initial
incarceration that it originally imposed. Salim contends that the original sentence
was “based on [an] individual analysis of Salim’s conduct and the degree of
seriousness the court attached to each crime.” We disagree.
¶11 When a circuit court imposes a penalty in excess of that permitted by
the law, the excess portion of the sentence is void. State v. Wilks, 165 Wis. 2d
102, 112, 477 N.W.2d 632 (Ct. App. 1991). In such a case, WIS. STAT. § 973.13
provides that “the sentence shall be commuted without further proceedings to the
maximum permitted by the law.” Wilks, 165 Wis. 2d at 112. However, “when a
sentence is commuted pursuant to § 973.13 ... the [circuit] court may, in its
discretion, resentence the defendant if the premise and goals of the prior sentence
have been frustrated.” State v. Holloway, 202 Wis. 2d 694, 700, 551 N.W.2d 841(Ct. App. 1996). “When a defendant is resentenced for the purpose of correcting a
prior invalid sentence, and when, as compared with the original sentence, the
liberty interests of the defendant are substantially and adversely affected, the
[circuit] court must state on the record the reasons for so modifying the first
sentence.” Grobarchik v. State, 102 Wis. 2d 461, 474, 307 N.W.2d 170 (1981).
“[Its] reasons must be based upon a desire to implement the original dispositional
scheme as manifested by the record in the first sentencing proceeding.” Id.¶12 This court has previously concluded that the circuit court, in
resentencing Salim, implemented the “original dispositional scheme” in order to
maintain the goals of the original sentence:
In framing Salim’s sentence, the circuit court
explained at the first sentencing hearing that it considered
the seriousness of the offenses, Salim’s character, and the
need to protect the public and the victims. The circuit court
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No. 2018AP2433
placed great weight on the seriousness of the crimes and
aggravating circumstances, noting that Salim manipulated
and terrorized L.S. and their children, including Salim’s
stepson, by threatening violence and suicide, making
incessant phone calls, breaking into their house after the
domestic abuse injunction had been issued, and attempting
to get L.S. fired from her job by filing anonymous false
complaints about her. The circuit court looked at other
aspects of Salim’s character, including the fact that he
blamed others for the situation, minimized his own role and
was unwilling to see the reality of his actions. The circuit
court concluded that Salim needed to be incarcerated to
protect L.S., the children and society, and that he also
needed to be punished for the suffering he inflicted on L.S.
and the children. The circuit court explained its application
of the various sentencing considerations in accordance with
the framework set forth in State v. Gallion, 2004 WI 42,
¶¶39-46, 270 Wis. 2d 535, 678 N.W.2d 197.
See Salim, No. 2012AP2795 at 2. Nothing in this record suggests the need to
reevaluate our prior conclusion.
¶13 For the foregoing reasons, we affirm the circuit court.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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