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State v. Akbar

Court of Appeals of Wisconsin
Sep 6, 2000
No. 00-0530-CR (Wis. Ct. App. Sep. 6, 2000)

Opinion

No. 00-0530-CR.

Opinion Released: September 6, 2000. Opinion Filed: September 6, 2000. This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Brown County: RICHARD J. DIETZ, Judge . Affirmed.

Before Cane, C.J., Hoover, P.J., and Peterson, J.


Talib Amin Akbar appeals an order denying his motion to modify a sentence originally imposed in 1995. Akbar argues that the sentence was unlawfully amended and enhanced without proper notice. Because the amended judgment of conviction merely reflects the trial court's actual pronounced sentence, we affirm.

BACKGROUND

¶ 2. Akbar was convicted of two counts of sexual assault, in violation of Wis. Stat. § 940.225(2)(g). At sentencing on March 16, 1995, the trial court imposed a ten-year sentence on each count and ordered that the two counts be served consecutively. The deputy clerk entered one judgment of conviction for each count. The judgment on the second count failed to state that the sentence was to be served consecutive to the first count. Instead, the judgments each stated that Akbar was sentenced to prison for ten years, effectively making the two sentences concurrent. See Wis. Stat. § 973.15(2)(a). The judgment of conviction on the second count was amended on March 20 of either 1995 or 1996 to state that the sentence was to be served consecutive to the sentence on the first count.

All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

¶ 3. In 1999, Akbar brought a motion in the trial court to modify sentence. Basing his claim on Wis. Stat. § 973.19, Akbar alleged that a year after his 1995 sentencing, a deputy clerk, without notice to the parties, illegally entered an amended judgment on the second count of sexual assault. The amendment changed the ten-year sentence from concurrent to consecutive. Akbar alleged he did not learn of the change until he saw it mentioned in his prison file in June of 1999.

Wisconsin Stat. § 973.19 provides:

Motion to modify sentence. (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).

(2) Within 90 days after a motion under sub. (1) (a) is filed, the court shall enter an order either determining the motion or extending the time for doing so by not more than 90 days for cause.

(3) If an order determining a motion under sub. (1) (a) is not entered timely under sub. (2), the motion shall be considered denied and the clerk of the court shall immediately enter an order denying the motion.

(4) An appeal from an order determining a motion under sub. (1)(a) is governed by the procedure for civil appeals.

(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).

¶ 4. The trial court treated Akbar's motion as seeking a modification of sentence on the basis of a new factor warranting sentence modification. After reviewing the record, the trial court found that the deputy clerk prepared the amended judgment of conviction on March 20, 1995 and made it nunc pro tunc. The court additionally found that the clerk's March 20, 1996 dating of the amended judgment was an error by the clerk. The trial court denied the motion because the amended judgment of conviction merely reflected the trial court's actual pronounced sentence and did not illegally lengthen Akbar's sentence. This appeal followed.

The trial court, in denying Akbar's motion for sentence modification, ruled that the deputy clerk amended the judgment on March 20, 1995. However, the State concedes in its brief that the likely date the judgment was amended was on March 20, 1996. In any event, this discrepancy does not affect our analysis.

STANDARD OF REVIEW

¶ 5. A defendant must raise all grounds for relief in the original motion for postconviction relief or on direct appeal. See State v. Escalona-Naranjo , 185 Wis.2d 168, 180-81, 517 N.W.2d 157 (1994). If a defendant's ground for relief was not raised in a prior postconviction motion or direct appeal, it may not become the basis for a new postconviction motion. If, however, a defendant can demonstrate a sufficient reason why the new ground or claim was not raised in the prior motion or appeal, a new motion is appropriate. See id.

¶ 6. The circuit court has the inherent power to modify a sentence based on a new factor. See State v. Kaster , 148 Wis.2d 789, 803, 436 N.W.2d 891 (Ct.App. 1989). A new factor is "a fact or a set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing. . . ." Rosado v. State , 70 Wis.2d 280, 288, 234 N.W.2d 69 (1975). Whether a particular fact constitutes a new factor is a question of law that we review independently. See State v. Hegwood , 113 Wis.2d 544, 547, 335 N.W.2d 399 (1983). However, if there is a new factor, it is within the trial court's discretion to determine whether the imposed sentence warrants modification. See id. at 546.

DISCUSSION

¶ 7. The first issue we address is whether Akbar is barred from bringing this appeal. The State suggests that the judgment of conviction was amended in 1996, rather than 1995 as found by the circuit court. The State argues that Akbar is barred from bringing a motion to modify sentence because he should have addressed the issue in his prior petitions and motions to this court and to the trial court. We disagree.

¶ 8. Even if the judgment was amended in 1996, it is undisputed that the clerk's office did not give notice to the parties indicating the change. The State argues that Akbar failed to provide a sufficient reason explaining why it took him until 1999 to discover the amended judgment of conviction. However, a review of the record reveals that Akbar was in prison at the time the judgment of conviction was amended. In light of the clerk's failure to send notice to Akbar, there is no reasonable expectation that he would become aware of the change. Akbar has demonstrated a sufficient reason why his claim was not raised in prior motions and on direct appeal. We therefore conclude that Akbar's new motion is not barred.

¶ 9. The second issue we address is whether the amendment to the judgment of conviction was unlawful. Akbar argues that the amended judgment of conviction did not conform to the trial court's actual pronounced sentence. We disagree.

¶ 10. There is no dispute about the sentence actually imposed by the trial court at Akbar's sentencing. The transcript clearly shows the court ordered the second ten-year sentence to be served consecutive to the first. At sentencing, the trial court stated, "the sentence imposed in count two shall be consecutive to the sentence in count one." Therefore, it is clear that the clerk committed an error when the original judgment of conviction on the second count provided that the ten-year sentence commenced on the day of the sentencing.

¶ 11. The subsequent amendment, whenever it occurred, merely changed the judgment of conviction to reflect the actual pronounced sentence. When an oral pronouncement of sentence conflicts with the written judgment, the oral pronouncement controls. See State v. Hayes , 167 Wis.2d 423, 427, 481 N.W.2d 699 (Ct.App. 1992). Because the amended judgment merely reflected the actual pronounced sentence, any failure by the clerk to notify the parties was harmless error. Had the clerk given notice, the result would have been the same. There is no new factor in Akbar's case that would result in a modification of sentence.

By the Court. — Order affirmed.


Summaries of

State v. Akbar

Court of Appeals of Wisconsin
Sep 6, 2000
No. 00-0530-CR (Wis. Ct. App. Sep. 6, 2000)
Case details for

State v. Akbar

Case Details

Full title:STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. TALIB AMIN AKBAR…

Court:Court of Appeals of Wisconsin

Date published: Sep 6, 2000

Citations

No. 00-0530-CR (Wis. Ct. App. Sep. 6, 2000)

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