DocketNumber: Appeal No. 2017AP1353-CR
Citation Numbers: 921 N.W.2d 3, 2018 WI App 62, 384 Wis. 2d 271
Filed Date: 8/28/2018
Status: Precedential
Modified Date: 10/16/2022
¶ 1 Darryl P. Benson, pro se , appeals from an order of the circuit court that denied his "motion to modify sentence and presentence investigation report based upon 'new factors' " and his request for a hearing to correct the presentence investigation report (PSI). The circuit court concluded the motion was procedurally barred under State v. Escalona-Naranjo ,
BACKGROUND
¶ 2 In 2009, Benson was charged with four counts of first-degree sexual assault of a child, contrary to WIS. STAT. § 948.02(1)(e) (2009-10).
¶ 3 In his direct appeal, Benson claimed ineffective assistance of trial counsel for counsel's failure to challenge the charges as duplicitous and counsel's failure to investigate and impeach certain witnesses. The motion was denied without a hearing, and we affirmed. In 2013, Benson pursued a pro se postconviction motion under WIS. STAT. § 974.06 (2013-14), raising additional claims of ineffective assistance of trial counsel. That motion was also denied without a hearing, and we affirmed.
¶ 4 Benson filed the motion underlying the current appeal in June 2017. He sought sentence modification claiming new factors-specifically, the lack of a risk assessment within the PSI and certain inaccuracies in the PSI. Benson also requested a hearing to correct the PSI, claiming it was causing the Department of Corrections to deny him appropriate programming and custody classifications.
¶ 5 The circuit court, noting that any objections to the PSI could have been made in the prior postconviction motion, concluded that the motion was barred by Escalona . The circuit court also noted that only the Department has the authority to modify the PSI and that, even if the procedural bar did not apply, Benson "has not set forth any basis on which modification of his sentence would be appropriate." The circuit court thus denied the motion without a hearing, and Benson appeals.
DISCUSSION
¶ 6 A prisoner who has had a direct appeal or other postconviction motion may not seek collateral review of an issue that was or could have been raised in the earlier proceeding, unless there is a "sufficient reason" for failing to raise it earlier. See Escalona ,
I. Sentence Modification Based on New Factors
¶ 7 Despite the existence of a procedural bar, a circuit court may still modify a sentence if the defendant shows a new factor that warrants modification. See State v. Harbor ,
¶ 8 "The defendant has the burden to demonstrate by clear and convincing evidence the existence of a new factor." Harbor ,
¶ 9 Benson claims that the existence of WIS. STAT. § 972.15(1m) is a new factor. That statute, which was created by 2007 Wis. Act 80 § 22 and which took effect on April 1, 2009, provides in relevant part:
If a person is convicted for a felony that requires him or her to register under [ WIS. STAT. §] 301.45 and if the victim was under 18 years of age at the time of the offense, the court may order the department to conduct a presentence investigation report to assess whether the person is at risk for committing another sex offense[.]
Benson contends that the sentencing court's failure to utilize this section frustrated the purpose of sentencing and left the court without guidance. He claims that the statute is highly relevant because if it had been utilized, the sentencing court would have known there was no mandatory minimum sentence and would have been more likely to give him probation.
¶ 10 WISCONSIN STAT. § 972.15(1m) is not a new factor. It existed at the time of sentencing, and we presume judges know the law. See Tri-State Mech., Inc. v. Northland Coll. ,
¶ 11 In any event, showing a new factor is not the end of the analysis. If a new factor is shown, the circuit court then determines whether that new factor warrants sentence modification. The circuit court's conclusion that Benson "has not set forth any basis on which modification of his sentence would be appropriate" is effectively a determination that even if the statute were a new factor, it would not warrant sentence modification. We discern no erroneous exercise of the circuit court's discretion in this regard. Benson complains that the purpose of sentencing was frustrated without a risk assessment, but whether to order the risk assessment is a discretionary decision for the sentencing court: the statute states that the court "may order" the PSI to assess the offender's risk of re-offense. See Thielman v. Leean ,
II. Resentencing Based on Inaccurate Information
¶ 12 "[A] criminal defendant has a due process right to be sentenced only upon materially accurate information." State v. Lechner ,
¶ 13 As grounds for resentencing, Benson claims multiple inaccuracies in the PSI. He claims his sentence is wrong because the sentencing court failed to consider WIS. STAT. §§ 939.66(2p) and 948.025, resulting in multiplicitous sentences; the sentencing court erroneously said he made his victim touch his penis; and the sentencing guidelines were not considered. Benson also claims the PSI is erroneous because the PSI writer was biased, no risk assessment was performed, and the PSI author should not have imported facts from the criminal complaint because he was convicted based on the information, not the complaint.
¶ 14 Each of these complaints is barred. Any challenge to the accuracy of the PSI had to be raised at the sentencing hearing; failure to do so constitutes forfeiture. See State v. Johnson ,
¶ 15 Relying on State v. Norton ,
¶ 16 Aside from the procedural bar, a defendant seeking resentencing based on inaccurate information must show the information actually is inaccurate. See Travis ,
¶ 17 Benson argues that under WIS. STAT. § 939.66(2p), which deals with lesser-included crimes, he could not have been convicted for three violations of WIS. STAT. § 948.02(1)(e) for first-degree sexual assault of a child. Section 939.66(2p) states, "Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be ... [a] crime which is a less serious or equally serious type of violation under s. 948.02 than the one charged." Benson thus appears to believe that multiple charges of equally serious violations of § 948.02 are lesser-included offenses of each other. However, § 939.66(2p) simply means that for each charge under § 948.02, Benson may be convicted of the charged offense or a lesser-included offense-which, in the case of § 948.02, might carry the same penalty-but not both offenses. Section 939.66(2p) does not prohibit charging of, or conviction on, multiple discrete offenses.
¶ 18 Relatedly, Benson seems to think that he should not have been charged with three counts of first-degree sexual assault of a child when the State could have charged him with a single offense of engaging in repeated acts of sexual assault of the same child, contrary to WIS. STAT. § 948.025(1).
¶ 19 Benson also complains that the sentencing court noted that he had required the victim to touch his penis. Benson argues that the sentencing court referenced the jury's finding of guilt, but the jury's verdicts found Benson guilty as charged in the amended information and the information contains no details of his offense. He therefore wonders how the sentencing court can be allowed to comment if the information had no specifics. However, the sentencing court presided over the trial, where the victim testified that Benson made her touch his penis and about his other acts. The sentencing court is not required to disregard the evidence presented at trial when articulating its sentence.
¶ 20 Finally, Benson argues the sentencing guidelines for first-degree sexual assault should have been considered, as that was the law at the time of his offenses. However, the rule requiring consideration of sentencing guidelines was retroactively repealed effective July 1, 2009. See State v. Barfell ,
III. A Hearing to Correct the PSI for the Department's Use
¶ 21 Benson also complains that the inaccuracies in the PSI are causing the Department to deny him proper programming and custody classifications, and he seeks an evidentiary hearing to review the inaccuracies. However, challenges to the PSI had to be raised at the time of sentencing. Benson is not now entitled to a hearing on his disputes with the PSI. Though State v. Melton ,
¶ 22 Moreover, the circuit court noted that the Department appeared to have addressed at least one of Benson's complaints by performing a new offender evaluation, and Benson does not refute the circuit court's findings in that regard. More importantly, the circuit court properly noted that "a motion to correct the information contained in the PSI should be directed to" the Department. See State v. Bush ,
¶ 23 In urging that we not apply procedural bars against him, Benson notes that he was actively seeking relief from the Department relative to its use of the PSI. In that case, Benson had an avenue of review of the Department's decision through certiorari review, not collateral review in his criminal case.
By the Court. -Order affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5. (2015-16).
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
The Honorable Carl Ashley presided at trial and imposed sentence. We will refer to him as the trial court and the sentencing court. The Honorable Mark A. Sanders reviewed and denied Benson's postconviction motion; we will refer to him as the circuit court.
After briefing in this matter was complete, Benson filed a motion in May 2018 asking us to take judicial notice of a sex offender treatment evaluation, dated December 15, 2016; a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) evaluation, dated May 21, 2015; and a letter from the warden of his institution, dated April 4, 2018, declining to modify the PSI. Benson contends that "[t]he low risk assessments may require the court to modify the sentence in accord with the documents, thus judicial notice of these adjudicative facts are necessary." We deny the motion.
The fact of which Benson would have us take notice is not the existence of these documents but, rather, the meaning of the information therein. But Benson has not established that such facts are "not subject to reasonable dispute" and capable of "accurate and ready determination" as required by the judicial notice statute. See
Additionally, we note that both evaluations pre-date Benson's June 2017 motion. We will not allow him to utilize the judicial notice statute to raise arguments for the first time on appeal that could have been raised within the context of the motion. See State v. Huebner ,
"Whoever commits 3 or more violations under s. 948.02(1) or (2) within a specified period of time involving the same child is guilty of" various levels of felony depending on the nature of the underlying violations. See
Additionally, Benson has previously challenged the use of multiple charges against him, though his prior challenges raised duplicity rather than multiplicity. See State v. Benson , No. 2010AP2455-CR, unpublished slip op. ¶¶ 14-16 (WI App May 8, 2012). "A matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue." See State v. Witkowski ,