State v. Lawrence Williams ( 2024 )

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 29, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP1323-CR Cir. Ct. No. 1995CF955598A
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
LAWRENCE WILLIAMS,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
MILTON L. CHILDS, SR., Judge. Dismissed.
Before White, C.J., Geenen and Colón, 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).
¶1 PER CURIAM. Lawrence Williams appeals from an order of the
circuit court denying reconsideration of his motion for sentence modification. We
No. 2023AP1323-CR
conclude that we lack jurisdiction to review the order. We further conclude that
even if we did have jurisdiction, the circuit court properly denied Williams’s
sentencing modification claim. Accordingly, we dismiss.
BACKGROUND
¶2 In late 1995, Williams and two co-actors committed a series of
armed robberies and attempted armed robberies in Milwaukee. After robbing a
Speedy Lube, Williams and his co-actors fled in a vehicle and were pursued by an
off-duty police officer. Williams, the driver, pulled into an alley and waited for
the officer to follow them, and when he did, one of the co-actors shot the officer in
the neck. After Williams was apprehended, the State charged Williams with one
count of attempted armed robbery, two counts of attempted armed robbery while
concealing identity, seven counts of armed robbery while concealing identity, and
one count of attempted first-degree intentional homicide while armed, all as a
party to a crime, related to the Speedy Lube and other incidents in which Williams
was a suspect. A jury convicted Williams on all eleven counts.
¶3 At sentencing, Williams’s attorney argued that Williams did not
know that his co-actor planned to shoot the officer. He asserted that Williams did
not take part in the shooting, and therefore, he should receive a shorter sentence
for that crime. The circuit court believed that Williams and his co-actors
collectively planned to confront the officer, describing it as an ambush to avoid
getting caught for the armed robberies. The circuit court noted that the officer
might have died without prompt medical attention, and although Williams did not
pull the trigger, he drove the car and waited for the officer in the alley, as opposed
to continuing to drive away from and escape the officer.
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No. 2023AP1323-CR
¶4 The circuit court sentenced Williams to an indeterminate prison term
not to exceed 130 years.1 The circuit court mentioned parole when discussing
restitution, saying that Williams would pay restitution from his prison earnings
and any job he has “when he gets released on parole.”
¶5 Williams appealed, and we affirmed his conviction. State v.
Williams, 220 Wis. 2d 458, 583 N.W.2d 845 (Ct. App. 1998). He filed a petition
for writ of habeas corpus in the Eastern District of Wisconsin, which was denied.
He then appealed to the Seventh Circuit, which also denied the petition.
Williams v. Bertrand, No. 03-2699, 105 Fed. App’x 97, 2004 WL 1662267 (7th
Cir. July 8, 2004).
¶6 In 2010, 2012, and 2014, Williams filed WIS. STAT. § 974.06 (2021-
22) motions, which the circuit court denied.2 Williams appealed two of the
denials, and both times we concluded that Williams’s claims were procedurally
barred. State v. Williams, No. 2010AP1028, unpublished slip op. (WI App
Mar. 8, 2011); State v. Williams, No. 2012AP461, unpublished slip op. (WI App
Jan. 29, 2013). Williams did not appeal the denial of the third motion.
¶7 In 2015, Williams sought sentence modification. The circuit court
denied that motion after concluding that his rehabilitation in prison was not a new
factor justifying sentence modification. Also in 2015, Williams filed a petition for
habeas corpus with this court. We denied the petition ex parte and denied
1
Williams was sentenced before the Truth-in-Sentencing Act became effective requiring
the imposition of determinate sentences. See 1997 Wis. Act 283; State ex rel. Thomas v.
Schwarz, 2007 WI 57, ¶10 n.3, 300 Wis. 2d 381, 732 N.W.2d 1.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
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No. 2023AP1323-CR
Williams’s subsequent reconsideration motion. State ex rel. Williams v.
Humphreys, No. 2015AP1770-W, unpublished slip op. and order (WI App Dec. 9,
2015).
¶8 In 2016, Williams sought to have the circuit court vacate his
restitution order. The circuit court granted the motion and amended Williams’s
judgment of conviction to reflect no restitution owed. In 2019, Williams filed a
second sentence modification motion. We summarily affirmed the circuit court’s
denial of that motion. State v. Williams, No. 2019AP1897-CR, unpublished op.
and order (WI App Feb. 16, 2021).
¶9 In 2023, Williams filed a third sentence modification motion. He
argued that a change in parole policy was a new factor that justified modification.
Specifically, he argued that a new parole law made his crimes subject to
presumptive mandatory release rather than mandatory release at the two-thirds
mark, and that this change was a new and highly relevant factor.
¶10 The circuit court rejected Williams’s claim because the presumptive
maximum release law was in existence when Williams was sentenced. It also
rejected his argument that the change in parole policy in general constituted a new
factor. It concluded that the circuit court did not expressly base Williams’s
sentence on parole eligibility.
¶11 Williams filed a motion for reconsideration. He argued that because
other circuit court judges admitted to being unfamiliar with the presumptive
maximum release law and because the circuit court did not explicitly indicate that
it had knowledge of the law, he met his burden to demonstrate that a new factor
justified sentence modification. He argued that the circuit court should have
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No. 2023AP1323-CR
assumed that the court at sentencing erroneously believed Williams would be
paroled before his mandatory release date.
¶12 The circuit court denied the reconsideration motion. It concluded
that nothing in Williams’s reconsideration motion changed the court’s decision.
Williams appealed, and we ordered the parties to address whether we had
jurisdiction to review the order denying reconsideration.
DISCUSSION
I. We lack jurisdiction to review the circuit court’s order denying
Williams’s motion for reconsideration.
¶13 Williams argues that we have jurisdiction to review the circuit
court’s order denying his motion for reconsideration, but the authority he cites
does not support his argument. He cites Mikrut v. State, 212 Wis. 2d 859, 866,
569 N.W.2d 765 (Ct. App. 1997) for the proposition that we are “instructed to
look to the substance rather than the label of a pro se pleading in order to
determine if the petitioner may be entitled to relief.” He also incorrectly cites
State v. Jones, 147 Wis. 2d 806, 819? 434 N.W.2d 380 (1989) for the proposition
that the circuit court was required to examine the evidence of Williams’s
purported new factor in the light most favorable to him. These cases do not help
us answer the jurisdictional question. Instead, we agree with the State that we lack
jurisdiction to review the circuit court’s order denying Williams’s motion for
reconsideration.
¶14 “An order denying a motion to reconsider an earlier order is not
necessarily appealable.” Harris v. Reivitz, 142 Wis. 2d 82, 86, 417 N.W.2d 50(Ct. App. 1987). “No right of appeal exists from an order denying a motion to
reconsider which presents the same issues as those determined in the order or
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No. 2023AP1323-CR
judgment sought to be reconsidered.” Silverton Enters. Inc. v. General Cas. Co.,
143 Wis. 2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988). The touchstone for
determining whether the successive motions have the same issues is “whether or
not the issues presented in the postjudgment motion could have been reviewed on
appeal from the judgment itself.” Ver Hagen v. Gibbons, 55 Wis. 2d 21, 24, 197
N.W.2d 752 (1972). Whether a court has jurisdiction presents an issue of law that
we review de novo. State v. Inglin, 224 Wis. 2d 764, 778, 592 N.W.2d 666(Ct. App. 1999).
¶15 Here, Williams filed a sentence modification motion and argued that
the presumptive mandatory release law and a change in parole policy were new
factors justifying sentence modification, and the circuit court denied that motion.
Approximately two weeks later, Williams filed a motion for reconsideration and
argued that the circuit court reached the wrong conclusion about whether his
claims were new factors. His reconsideration motion raised the same issue as his
original motion.
¶16 Williams claims that his reconsideration motion contained a new
issue, namely, an argument that the circuit court should have granted his initial
motion, but this argument plainly demonstrates that the reconsideration motion
does not raise any issue that the original motion did not. Our conclusion has
nothing to do with the sophistication of Williams’s pleading, but follows from the
substance of his original motion when compared to that of his reconsideration
motion. The motions raise identical issues, and therefore, we lack jurisdiction to
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No. 2023AP1323-CR
review the circuit court’s denial of Williams’s reconsideration motion.3 Silverton,
143 Wis. 2d at 665.
II. The circuit court properly denied Williams’s sentencing
modification claim.
¶17 On the merits, Williams argues that a change in parole policy
constitutes a new factor supporting sentence modification. Specifically, he
highlights that the circuit court mentioned parole at sentencing when discussing
Williams’s obligation to pay restitution, and therefore, the court “expressly
relie[d]” on Williams’s parole eligibility when sentencing Williams. State v.
Franklin, 148 Wis. 2d 1, 15, 434 N.W.2d 609 (1989). We conclude that even if
we assume that we do have jurisdiction to review the circuit court’s denial of
Williams’s reconsideration motion, we agree with the State that Williams’s
sentencing modification claim was properly denied.
¶18 “[T]he defendant must demonstrate both the existence of a new
factor and that the new factor justifies modification of the sentence.” State v.
Harbor, 2011 WI 28, ¶38, 333 Wis. 2d 53, 797 N.W.2d 828. The defendant bears
the burden of establishing the existence of a new factor by clear and convincing
evidence. Id., ¶36. A new factor is a fact or set of facts highly relevant to the
sentence, but not known by the circuit court at the original sentencing, “either
because it was not then in existence or because, even though it was then in
We observe an additional reason why we lack jurisdiction over Williams’s appeal,
3
namely, because he missed his deadline to timely appeal from the original order, and his motion
for reconsideration did not extend that deadline. Silverton Enters., Inc. v. General Cas. Co., 143
Wis. 2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988) (explaining that “[a]n order denying
reconsideration is not appealable since it does not prevent an appeal from the original order or
judgment” and that motions for reconsideration “should not be used as a ploy to extend the time
to appeal from an order or judgment when the time to appeal has expired”).
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No. 2023AP1323-CR
existence, it was unknowingly overlooked by all of the parties.” Rosado v. State,
70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). A change in parole policy can
constitute a new factor for purposes of sentence modification only if the circuit
court “expressly relies on parole eligibility” when sentencing a defendant.
Franklin, 148 Wis. 2d at 15.
¶19 Whether a new factor exists presents a question of law that we
review de novo. State v. Scaccio, 2000 WI App 265, ¶13, 240 Wis. 2d 95, 622
N.W.2d 449. Even if proven, the circuit court maintains discretion to decide
whether the new factor justifies sentence modification. Harbor, 333 Wis. 2d 53,
¶37. We review that decision for an erroneous exercise of discretion. Id., ¶33.
¶20 Williams argues that because the circuit court said that he would pay
restitution when he was paroled, the court relied on his parole eligibility when
sentencing him. We disagree with Williams, and instead, we agree with the State
and the circuit court that Williams is not entitled to relief because the circuit court
did not expressly rely on parole eligibility when it sentenced Williams. At best,
the court assumed that Williams would be paroled, but it did not expressly state
that it expected Williams to be paroled at any specific point during his sentence,
nor did it discuss Williams’s release before the mandatory release date.
¶21 Williams asserts that because some other judges were confused
about the impact of presumptive mandatory release on defendants that they had
sentenced, the circuit court that sentenced Williams must have likewise been
confused. But these cases are not relevant here. The circuit court is presumed to
know the law and to have entered a lawful sentence. See Scaccio, 240 Wis. 2d 95,
¶17. There is no indication that the court did not understand the law surrounding
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No. 2023AP1323-CR
parole at the time it imposed Williams’s sentence, nor is there any indication that
parole played any role in the court’s sentencing decision.
CONCLUSION
¶22 In sum, we conclude that we lack jurisdiction to review the circuit
court’s denial of Williams’s motion for reconsideration because it raises issues
identical to his original motion for sentence modification. We further conclude
that even if we did have jurisdiction, the circuit court properly denied Williams’s
sentencing modification claim because Williams failed to meet his burden to prove
a new factor justified sentence modification.
By the Court.—Appeal dismissed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
9