Opinion
No. 2011AP1967–CR.
2012-10-23
STATE of Wisconsin, Plaintiff–Respondent, v. Chris Lamar CRITTENDON, Defendant–Appellant.
Appeal from an order of the circuit court for Milwaukee County: Kevin E. Martens, Judge. Affirmed.
Before CURLEY, P.J., FINE and KESSLER, JJ.¶ 1PER CURIAM.
Chris Lamar Crittendon, pro se, appeals from an order denying his motion to modify his sentence. The issues are whether Crittendon's claim that the circuit court considered incorrect information at sentencing is procedurally barred and whether he is entitled to discretionary reversal under Wis. Stat. § 752.35 (2009–10). We affirm.
All references to the Wisconsin Statutes are to the 2009–10 version unless otherwise noted.
¶ 2 After a jury trial, Crittendon was convicted of first-degree intentional homicide, as party to a crime. Since 1993, Crittendon has filed five postconviction challenges to his conviction, including a direct appeal. In a motion filed in 2009, Crittendon argued that the circuit court relied on inaccurate information when sentencing him because the circuit court stated that he was on probation when he murdered the victim when, in fact, he had been released on bail. The circuit court denied the motion, concluding that the claim was barred under State v. Escalona–Naranjo, 185 Wis.2d 168, 185, 517 N.W.2d 157 (1994). We affirmed the order. In May 2011, Crittendon filed another motion to modify his sentence, this time recasting his argument about the probation/bail discrepancy as a “new factor” claim. The circuit court again concluded that the argument was barred by Escalona–Naranjo because Crittendon was “merely applying a new name to an old issue.” Crittendon appeals that order.
¶ 3 Any claim that could have been raised on direct appeal or in a previous Wis. Stat. § 974.06 postconviction motion is barred from being raised in a subsequent § 974.06 postconviction motion unless a sufficient reason is identified for not raising the claim earlier. Escalona–Naranjo, 185 Wis.2d at 185, 517 N.W.2d 157. Crittendon contends the procedural bar of Escalona–Naranjo does not apply to his claim because the circuit court has inherent authority to modify a sentence at any time based on a “new factor.” Crittendon argues that his motion was not brought pursuant to § 974.06, and thus the bar of Escalona–Naranjo does not apply because that case is premised on the language of § 974.06. Crittendon's argument fails because a motion invoking the inherent authority of the circuit court is procedurally barred when the defendant merely presents the same claims that were rejected in prior postconviction proceedings. See State v. Henley, 2010 WI 97, ¶¶ 72–77, 328 Wis.2d 544, 787 N.W.2d 350. Crittendon's claim is procedurally barred because he raised the same claim in his 2009 postconviction motion.
¶ 4 Crittendon next argues that he is entitled to discretionary reversal in the interest of justice under Wis. Stat. § 752.35 due to the circuit court's error at sentencing. The distinction between being released on probation and being released on bail is so minor as to be insignificant. There is no reason to believe the sentence would have been any different had the circuit court known Crittendon was released on bail. Crittendon is not entitled to relief in the interest of justice based on this error.
Order affirmed.
This opinion will not be published. SeeWis. Stat. RuleE 809.23(1)(b)5.