State v. Scaccio

• Decision Date: 09 November 2000
• Docket Number: No. 99-3101-CR, 00-0924.,99-3101-CR, 00-0924.
• Citation: 622 N.W.2d 449,2000 WI App 265,240 Wis.2d 95
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Joseph SCACCIO III, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

240 Wis.2d 95

2000 WI App 265

622 N.W.2d 449

STATE of Wisconsin, Plaintiff-Respondent, v. Joseph SCACCIO III, Defendant-Appellant.

No. 99-3101-CR, 00-0924.

Court of Appeals of Wisconsin.

Submitted on briefs July 20, 2000.

Decided November 9, 2000.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jim D. Scott of Michael Ablan Law Firm, S.C. of La Crosse.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general.

Before Dykman, P.J., Deininger, J., and William Eich, Reserve Judge.

¶ 1. DYKMAN, P.J.

Joseph Scaccio appeals from a judgment sentencing him to five years in prison and an order denying his motion to modify the sentence. He argues that the trial court erred in failing to fully consider his motion to modify his sentence on its merits. The State contends that Scaccio's motion was untimely because he failed to appeal the original judgment of conviction. We conclude that Scaccio's motion to modify was timely because a defendant may take a direct appeal from a subsequent judgment of conviction entered after probation revocation, although the appeal is limited to issues first raised by the post-revocation sentencing hearing and subsequent judgment. Because Scaccio properly moved to modify his sentence, he was entitled to a determination of whether his sentence should be modified because of a "new factor," not just whether the sentencing court erroneously exercised its discretion. However, we conclude that no new factor was present and that the trial court properly exercised its discretion in sentencing. Therefore, we affirm.

I. Background

¶ 2. On March 7, 1997, Scaccio was convicted of second-degree sexual assault of a child in violation of WIS. STAT. § 948.02(2) (1997-98).¹ In the original judgment of conviction, Scaccio received five years' probation. Two years later, the Division of Hearings and Appeals revoked Scaccio's probation. After a sentencing hearing, the trial court entered a second judgment of conviction dated June 14, 1999, sentencing Scaccio to five years in prison.

¶ 3. Scaccio moved to modify his prison sentence. The motion indicated that he was seeking relief under WIS. STAT. RULE 809.30, which sets out the procedure for appeals and certain postconviction motions in felony cases.² At a November 10 hearing on the motion, the State argued that the motion was untimely. The trial court apparently agreed with the State, ruling that Scaccio missed the deadline to move for modification of his sentence as a matter of right under WIS. STAT. § 973.19. The trial court addressed Scaccio's motion, but treated it as a request only for review of the sentence for an erroneous exercise of discretion.³ The trial court then concluded that it had not erroneously exercised its discretion in sentencing Scaccio. Scaccio appeals.⁴

II. Analysis

A. Direct Appeal from a Subsequent Judgment of Conviction

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¶ 4. To obtain review of a sentence in the trial court as of right, a defendant must move for sentence modification under WIS. STAT. RULE 809.30 or WIS. STAT. § 973.19. See State v. Hayes, 167 Wis. 2d 423, 425-26, 481 N.W.2d 699 (Ct. App. 1992). The facts here are undisputed, and whether Scaccio has properly appealed and moved for sentence modification presents a question of appellate jurisdiction and statutory interpretation. These are both questions of law that we examine de novo. See Reginald D. v. State, 193 Wis. 2d 299, 305-06, 533 N.W.2d 181 (1995) (statutory interpretation); State v. Bratrud, 204 Wis. 2d 445, 448, 555 N.W.2d 663 (Ct. App. 1996) (jurisdiction).

¶ 5. The procedure under WIS. STAT. § 973.19 differs depending on whether the defendant has first initiated procedures under WIS. STAT. RULE 809.30. Section 973.19 provides, in relevant part:

(1)(a) A person sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts under s. 809.30 (2) may, within 90 days after the sentence or order is entered, move the court to modify the sentence or the amount of the fine.

(b) A person who has requested transcripts under s. 809.30 (2) may move for modification of a sentence or fine under s. 809.30 (2) (h).

....

(5) By filing a motion under sub. (1) (a) the defendant waives his or her right to file an appeal or postconviction motion under s. 809.30 (2).

Thus, § 973.19 provides two alternative ways for a defendant to attack a sentence. See State v. Norwood, 161 Wis. 2d 676, 681, 468 N.W.2d 741 (Ct. App. 1991). One way is for a defendant to move for modification of the sentence under § 973.19(1)(a). See id. Under § 973.19(1)(a), a defendant does not have to request the preparation of transcripts and may obtain a faster decision from the trial court. See id. However, a defendant proceeding under § 973.19(1)(a) forfeits the opportunity to take a "full blown appeal" that would allow a challenge of issues in addition to the sentence modification. Id. Section 973.19(1)(a) operates independently of RULE 809.30 and allows a defendant to move for sentence modification only within ninety days from the date of sentencing. The other option open to a defendant is to first initiate an appeal with the modification of sentence as one issue. See id. In that case, the defendant proceeds under § 973.19(1)(b), after requesting the preparation of transcripts and otherwise following the regular appeal format set out in RULE 809.30. See id.

¶ 6. Scaccio argues that he properly moved for sentence modification under WIS. STAT. § 973.19(1)(b), which, in reference to WIS. STAT. RULE 809.30(2)(h), allows a defendant sixty days from service of transcripts to file a notice of appeal or motion for postconviction relief if that defendant had timely initiated postconviction relief under RULE 809.30(2).⁵ The State contends that § 973.19(1)(b) was not available to Scaccio because he missed the deadline to file his RULE 809.30(2) direct appeal. The backbone of the State's position is that the time to initiate a direct appeal under RULE 809.30 runs from the original judgment of conviction only. We disagree and conclude that a defendant is entitled to a RULE 809.30 direct appeal from a subsequent judgment of conviction entered after probation revocation. Therefore, Scaccio was properly proceeding under § 973.19(1)(b) because he followed the RULE 809.30(2) time limits, counting from the date of the subsequent judgment.⁶

¶ 7. Both Scaccio and the State point to two cases in support of their positions: State v. Drake, 184 Wis. 2d 396, 515 N.W.2d 923 (Ct. App. 1994), and State v. Tobey, 200 Wis. 2d 781, 548 N.W.2d 95 (Ct. App. 1996). Scaccio argues that the rule from Drake and Tobey is simply that a defendant may not challenge his or her original judgment of conviction after the time to appeal that judgment has passed. The State contends that under Drake and Tobey, a defendant has only one opportunity for a direct appeal under WIS. STAT. RULE 809.30, and that opportunity arises only in connection with the original judgment of conviction. We conclude that Scaccio's interpretation of Drake and Tobey is the better one.

¶ 8. In Drake, the trial court imposed four years' probation on Timothy Drake after he pleaded guilty to physical abuse of a child in 1990. Drake, 184 Wis. 2d at 397-98. After Drake's probation was revoked in May 1992, he returned to court for sentencing. See id. at 398. Before the court imposed the prison sentence, Drake moved to withdraw his guilty plea and for a trial. See id. The court denied the motion and imposed a sentence of three years in prison on October 30, 1992. See id. Drake filed a notice of intent to pursue postconviction relief under WIS. STAT. RULE 809.30(2)(b) and appealed from the judgment of conviction imposing the prison sentence. See id. All of Drake's arguments on appeal related to whether he should have been allowed to withdraw his guilty plea. See id. We concluded that we lacked jurisdiction to decide those issues. See id. We reasoned that had Drake wished to challenge the validity of his plea, he could have taken a direct appeal from the December 1990 judgment of conviction. See id. at 399. By the time Drake moved to withdraw his guilty pea, the deadline for filing a direct appeal from that judgment "had long since expired." Id.

¶ 9. In Tobey, Steven Tobey was convicted of receiving stolen property after pleading no contest. Tobey, 200 Wis. 2d at 782-83. In October 1993, he was placed on probation. See id. at 783. Tobey's probation was subsequently revoked, and he was sentenced to nine months in jail on May 3, 1995. See id. On May 10, Tobey filed a notice of intent to pursue postconviction relief. See id. He then filed a postconviction motion, alleging that he was not adequately advised of his right to counsel when the court received his October 1993 plea and that he did not voluntarily and intelligently waive his right to counsel at that time. See id. We concluded that Tobey was untimely under WIS. STAT. RULE 809.30 because he failed to file a notice of intent to pursue postconviction relief within twenty days of the October 1993 sentencing.⁷ See id. at 784. We reasoned that: "Tobey chose to begin serving his probation without objecting to the events surrounding his 1993 conviction. Therefore, he cannot now raise these [right to counsel] issues because he is dissatisfied with the outcome of his sentencing after probation revocation." Id.

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¶ 10. The rule we derive from Drake and Tobey is that a defendant cannot use WIS. STAT. RULE 809.30 in conjunction with WIS. STAT. § 973.19(1)(b) to raise issues that go back to the original judgment of conviction. A challenge to a post-revocation sentence does not bring the original judgment of conviction before the court. See Drake, 184 Wis. 2d at 399-400. However, the decisions in Drake and Tobey do not preclude a defendant from taking...