State v. Ricky Rodriguez

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 16, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP2053-CR Cir. Ct. No. 2015CM318

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RICKY RODRIGUEZ,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Sauk County:
MICHAEL P. SCRENOCK, Judge. Affirmed.

¶1 BLANCHARD, P.J.1 Ricky Rodriguez, pro se, appeals a circuit
court order denying his motion for reconsideration of a prior court order that

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP2053-CR

denied his motion for modification of a sentence imposed after revocation of his
probation. In his reconsideration motion, and now again on appeal, Rodriguez
argues that, in sentencing him after revocation of his probation in this case, the
circuit court “lacked authority,” based on Drinkwater v. State, 69 Wis. 2d 60, 230
N.W.2d 126 (1975), to order the following: that Rodriguez serve the revocation
sentence after he finished serving a prison sentence that had been imposed in a
separate case between the time of the probationary disposition in this case and the
sentencing after revocation in this case. After determining that this court has
jurisdiction over this appeal, I conclude that Rodriguez concedes through silence
that his Drinkwater-based argument is foreclosed by decisions of this court and I
reject it on that basis.

BACKGROUND

¶2 In June 2015, Rodriguez was charged with misdemeanors in this
Sauk County case, and the charges were amended in October 2016. After he was
convicted on two counts, the circuit court placed him on probation in February
2017.

¶3 In May 2017 Rodriguez committed felony offenses that were
charged in Milwaukee County. After his conviction in the Milwaukee case, he
was sentenced to prison in August 2019.

¶4 Based on his May 2017 Milwaukee conduct, Rodriguez’s probation
in this Sauk County case was revoked, with a revocation order and warrant issued
in June 2018. On October 8, 2019, the circuit court in this case sentenced
Rodriguez after revocation to nine months’ jail on each of the two counts, to be
served concurrently to each other, but consecutive to any other sentence, which
included the prison sentence in the Milwaukee case.

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¶5 On May 28, 2021, Rodriguez, pro se, filed a motion for sentence
modification of the sentencing after revocation. The thrust of this motion was that
the circuit court at the time of the sentencing after revocation lacked relevant
information and was provided with “misinformation,” and all of this caused the
court to order the sentence after revocation to be served consecutively to the
sentence in the Milwaukee case. As a result, Rodriguez argued, “new factors”
required sentencing modification because, if the court had all of the relevant,
accurate information it would have made the sentence concurrent.

¶6 On July 6, 2021, the circuit court denied the motion without holding
a hearing. The court characterized the motion as being based on “the
circumstances by which [Rodriguez] was not present for the sentencing [after
revocation] hearing scheduled [for] July 19, 2018 and his subsequent assessment
upon entry into Dodge Correctional Institut[ion.]” The court denied the motion on
the following grounds:

Even if these facts could be construed to constitute
a new factor, the Court is satisfied that knowledge of those
matters at the time of sentencing would not have changed
the sentence structure in this case. The Court imposed
concurrent sentences for the two crimes in this case and
ordered that those sentences be consecutive to any other
sentence previously imposed, thus ensuring that Mr.
Rodriguez receives punishment for the unjustified beating
that he inflicted on a gentleman just north of the Noah’s
Ark family waterpark attraction in the Wisconsin Dells
area. (Footnote omitted)

¶7 On October 14, 2021, Rodriguez filed a motion for reconsideration.
This motion was based on the terms of WIS. STAT. § 973.10(2), as they were
interpreted in Drinkwater, in which our supreme court interpreted the then-
existing version of § 973.10(2) (1973-74) to mean that “[a] sentence imposed upon
the revocation of probation cannot be made consecutive to a sentence previously

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imposed.” Drinkwater, 69 Wis. 2d at 74. In other words, the reconsideration
motion was to the effect that, given this statement in Drinkwater, the circuit court
here acted unlawfully in imposing the consecutive sentence.

¶8 The State replied that pertinent statutes were revised by the
legislature after Drinkwater, and therefore Drinkwater should “not govern” the
circuit court’s analysis, citing authority that includes State v. Cole, 2000 WI App
52, 233 Wis. 2d 577, 608 N.W.2d 432, and State v. Thompson, 208 Wis. 2d 253,
559 N.W.2d 917 (Ct. App. 1997).

¶9 On November 18, 2021, the circuit court denied the motion for
reconsideration based on WIS. STAT. § 973.15(2)(a), which provides that a
sentencing court “may provide that any ... sentence be concurrent with or
consecutive to any other sentence imposed at the same time or previously.”

¶10 On November 29, 2021, Rodriguez filed a single notice of appeal
from the circuit court’s denial of both his motion for sentence modification and his
motion for reconsideration.

DISCUSSION

¶11 The State challenges the jurisdiction of this court over this appeal. I
explain why I reject that challenge before turning to Rodriguez’s Drinkwater-
based argument.

Jurisdiction

¶12 As this court explained in a March 11, 2022 order, this court lacks
jurisdiction to review the circuit court’s July 6, 2021 order because Rodriguez
filed his notice of appeal too late. See WIS. STAT. § 809.10(1)(e). Rodriguez does

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No. 2021AP2053-CR

not now contest this jurisdictional point and takes the position that he appeals only
the order denying the reconsideration motion.

¶13 However, the State contends that this court lacks jurisdiction to
review the November 18, 2021 order, in light of the rule that an appeal cannot be
taken from an order denying a motion for reconsideration that presents the same
issues as those determined in the order sought to be reconsidered. See Silverton
Enters., Inc. v. General Cas. Co., 143 Wis. 2d 661, 665, 422 N.W.2d 154 (Ct.
App. 1988). This rule is based on the rationale that motions for reconsideration
cannot be used “as a ploy” to extend the time to appeal from a judgment or order
when that time has expired. Id.; see also Ver Hagen v. Gibbons, 55 Wis. 2d 21,
197 N.W.2d 752 (1972). More specifically here, the State argues that Rodriguez’s
appeal fails the “new issues” test because he sought the same relief in both the
initial motion and the motion for reconsideration: modification of his sentence
after revocation so that it is served concurrently with the Milwaukee case prison
sentence.

¶14 Rodriguez makes several counterarguments but I need to address
only one, because I conclude that it is persuasive. I agree with Rodriguez that the
issue presented in the motion for sentence modification differed from the issue
presented in the motion for reconsideration.

¶15 As summarized above, the motion for sentence modification was
based entirely on alleged “new factors” involving information that was (or was
not) before the circuit court at the time of the sentencing after revocation. In
contrast, the motion for reconsideration was based entirely on a statutory argument
that the court was prohibited from structuring the sentence as it did. Thus, the
statutory issue was not “disposed of by the original judgment or order,” see Ver

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Hagen, 55 Wis. 2d at 25, but instead this issue was raised only in the motion for
reconsideration. The State merely asserts that the issue was the same in each
motion because Rodriguez sought the same relief in each, but the State fails to
show how the “new issues” rule applies here to bar jurisdiction. I conclude that
the “ploy” rationale of Silverton and Ver Hagen does not apply here.

Merits

¶16 The statute that the circuit court cited in denying the motion for
reconsideration, WIS. STAT. § 973.15(2)(a), states in pertinent part that a “court
may impose as many sentences as there are convictions and may provide that any
such sentence be concurrent with or consecutive to any other sentence imposed at
the same time or previously.” This permitted the circuit court here to impose the
consecutive sentence.

¶17 As noted, Rodriguez relies on Drinkwater. But, as the State now
argues, Rodriguez’s Drinkwater-based argument has been rejected by this court
based on statutory changes made by the legislature since 1975. See Cole, 233
Wis. 2d 577, ¶¶2, 5, 7-8 (noting statutory revisions post-dating Drinkwater);
Thompson, 208 Wis. 2d at 256-57 (same; further noting that “revocation merely
triggers the execution or implementation of the sentence”). The State also could
have cited, as part of this same line of authority, State v. White, 97 Wis. 2d 517,
519-20, 294 N.W.2d 36 (Ct. App. 1979) (noting statutory revisions which
“provide that sentencing on probation revocation may be concurrent with or
consecutive to any sentence imposed subsequent to the imposition of the original
probation.”). Without tracing the history in detail, these cases explain that the
legislature has revised WIS. STAT. §§ 973.10(2) and 973.15(2) in ways that make
Drinkwater no longer supportive of Rodriguez’s position.

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No. 2021AP2053-CR

¶18 I need not elaborate further, because after the State cites this line of
authority, Rodriguez fails to explain why the authority cited by the State is not
dispositive, which concedes the point. See United Coop. v. Frontier FS Coop.,
2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to
respond in reply brief to argument made in response brief may be taken as
concession). Rodriguez may intend to base some of his arguments on language in
WIS. STAT. § 973.10(2)(b) (“If the probationer has already been sentenced, order
the probationer to prison, and the term of the sentence shall begin on the date the
probationer enters the prison”) that he contends conflicts with WIS. STAT.
§ 973.15(2)’s authorization of imposing “any such sentence … consecutive[ly] to
any other sentence imposed … previously.” However, as the above background
demonstrates, Rodriguez had not been already sentenced, meaning § 973.10(2)(a)
applied, which explicitly incorporates the unambiguous terms of § 973.15(2).

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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