court of appeals decision; pro se; Resp. Br.
Sentence Modification – DNA Surcharge
¶2 Singleton was sentenced on July 24, 2002, and the circuit court ordered, as a condition of his bifurcated sentence, that Singleton provide a DNA sample and pay the applicable surcharge.[1] Singleton’s sole challenge is made via a motion to modify his sentence under Wis. Stat. § 973.19 (2007-08), and is addressed only to the adequacy of the court’s explanation for imposition of the surcharge under Cherry, 2008 WI App 80, ¶10.
¶3 A motion to modify a sentence must be brought within ninety days of sentencing under WIS. STAT. § 973.19(1)(a), or within appellate time limits set forth in WIS. STAT. RULE 809.30. See State v. Norwood, 161 Wis. 2d 676, 680‑81, 468 N.W.2d 741 (Ct. App. 1991). Singleton did not move to modify his sentence until nearly seven years after this sentence was imposed, so his motion is untimely. Moreover, if we were to construe the motion as brought pursuant to WIS. STAT. § 974.06, which allows postconviction challenges in a broader set of circumstances, Singleton’s claim would fail because that statute may not be used to challenge the circuit court’s exercise of sentencing discretion “when a sentence is within the statutory maximum or otherwise within the statutory power of the court.” See Smith v. State, 85 Wis. 2d 650, 661, 271 N.W.2d 20 (1978). Additionally, only jurisdictional and constitutional issues may be addressed in a Wis. Stat. § 974.06 motion, and Singleton raises neither here. See Smith, 85 Wis. 2d at 661.
¶4 Singleton contends that he should be allowed to obtain relief because his motion for sentence modification is based on a “new factor,” the recently decided Cherry case. See id., 312 Wis. 2d 203, ¶10. A motion for sentence modification based on a “new factor” can be made at any time. State v. Noll, 2002 WI App 273, ¶12, 258 Wis. 2d 573, 653 N.W.2d 895. “The term ‘new factor’ refers to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because … it was unknowingly overlooked by all of the parties.” State v. Kluck, 210 Wis. 2d 1, 7, 563 N.W.2d 468 (1997). Our recent decision in Cherry does not qualify as a new factor. We have previously held that a post-sentencing change in the law is not a new factor for purposes of sentence modification because it is “not highly relevant” to the imposition of the original sentence. See State v. Trujillo, 2005 WI 45, ¶30, 279 Wis. 2d 712, 694 N.W.2d 933; State v. Tucker, 2005 WI 46, ¶13, 279 Wis. 2d 697, 694 N.W.2d 926.
