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Sentence Modification — New Factor — Escalona-Naranjo Bar to Raising

State v. John Casteel, 2001 WI App 188, PFR filed

Issue: Whether Casteel’s failure to argue in a prior new-factor based attempt to modify sentence bars him from now arguing that the special action release program, § 304.02 — a statute extant at the time of the prior motion to modify — is a new factor.


¶17. We note that the special action parole release statute was first adopted in 1989. See 1989 Wis. Act 31. In 1993, Casteel argued that a new factor justified resentencing, but did not raise the current issue. See Casteel, Nos. 93-1306-CR and 93-1307-CR. In the additional six appeals since 1989, Casteel failed to raise this issue. He has not provided any reason that prevented him from arguing it previously. His appeal on this issue is untimely. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

This reasoning is dubious. Escalona merely interprets § 974.06, the statutory authority for collateral attacks on convictions; the limits it imposes on serial litigation are those it discerned in the statute. Sentence modification, on the other hand, is an exercise of inherent, common law authority, and importing purely statutory restrictions into this exercise is arbitrary. Nonetheless, the case is on the books and so long as it is strictly limited to its facts (asserted new factor extant at time of prior new-factor motion; no attempt to explain why not raised), then the impact may be limited.


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