State v. Willie C. Simpson

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.
January 10, 2023
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. 2021AP18-CR Cir. Ct. No. 1999CF4849

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WILLIE C. SIMPSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MICHELLE ACKERMAN HAVAS, Judge. Affirmed.

Before Donald, P.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP18-CR

¶1 PER CURIAM. Willie C. Simpson appeals from an order of the
trial court denying his motion to modify his sentences that were imposed for two
counts of first-degree sexual assault of a child. On appeal, Simpson maintains that
two new factors—in the form of sentences imposed for subsequent convictions
and a recent HIV positive diagnosis—require modification of his sentences for the
two counts of first-degree sexual assault of a child. We disagree, and we conclude
that Simpson has not demonstrated the existence of a new factor entitling him to
sentence modification. Accordingly, we conclude that the trial court properly
denied Simpson’s motion, and for the reasons set forth below, we affirm.

BACKGROUND

¶2 In September 1999, Simpson was charged with two counts of first-
degree sexual assault of a child in Milwaukee County Circuit Court Case
No. 1999CF4849. Simpson was convicted as charged, and he was subsequently
sentenced in May 2000 to two consecutive sentences totaling twenty-five years of
imprisonment.

¶3 Prior to his conviction in Case No. 1999CF4849, Simpson had also
been convicted in Milwaukee County Circuit Court Case No. 1996CF965778 of
one count of second-degree sexual assault of a child, for which he received a
fifteen-year sentence that was imposed and stayed, and he was placed on
probation. Simpson’s probation for his conviction in Case No. 1996CF965778
was revoked in December 1999 as a result of Case No. 1999CF4849, and
Simpson’s sentences in Case No. 1999CF4849 were set to also run consecutive to
his sentence in Case No. 1996CF965778.

¶4 As relevant to Simpson’s arguments, Case Nos. 1996CF965778 and
1999CF4849 occurred prior to what is commonly referred to as Wisconsin’s Truth

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in Sentencing (TIS) laws going into effect. See 1997 Wis. Act 283; 2001 Wis. Act
109. Under Wisconsin’s TIS laws, Wisconsin shifted from indeterminate to
determinate sentencing, parole was eliminated, and a defendant’s sentence is now
bifurcated into a term of initial confinement and extended supervision. See
State v. Trujillo, 2005 WI 45, ¶¶3-4, 279 Wis. 2d 712, 694 N.W.2d 933,
abrogated on other grounds by State v. Harbor, 2011 WI 28, ¶47 & n.11, 333
Wis. 2d 53, 797 N.W.2d 828. Simpson’s sentences for Case Nos. 1996CF965778
and 1999CF4849, therefore, are periodically reviewed by a parole board as his
sentences do not have a pre-determined period of initial confinement.

¶5 While serving his sentences in Case Nos. 1996CF965778 and
1999CF4849, Simpson was charged and convicted for several other crimes,
including multiple counts of battery by a prisoner, several counts of throwing or
expelling a bodily substance, bail jumping, and disorderly conduct. His sentences
for these convictions resulted in an additional twenty-five years of imprisonment,
composed of fourteen years of initial confinement and eleven years of extended
supervision. The sentences for these convictions were imposed pursuant to
Wisconsin’s TIS laws and, therefore, consist of a bifurcated sentence composed of
a term of initial confinement and a term of extended supervision.

¶6 Additionally, since his conviction in Case No. 1999CF4849—our
underlying case on appeal—Simpson has raised multiple challenges to his
conviction, including a direct appeal, four motions under WIS. STAT. § 974.06
(2019-20),1 and a motion styled as a motion to void and commute sentence.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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Simpson’s challenges have been denied by the trial court and affirmed on appeal.
See State v. Simpson, No. 2001AP2238-CR, unpublished slip op. (WI App Apr.
16, 2002); State v. Simpson, No. 2004AP1647, unpublished op. and order (WI
App Sept. 14, 2005); State v. Simpson, Nos. 2011AP311 and 2011AP312,
unpublished slip op. (WI App Nov. 8, 2011); State v. Simpson, No. 2019AP1713,
unpublished op. and order (WI App Dec. 22, 2020).

¶7 Most recently, Simpson filed the motion for sentence modification
that gives rise to this appeal. Specifically, Simpson styled his motion as a “Notice
of Emergency Motion and Motion for Sentence Modification Pursuant to
Sec. 973.19 and 302.113(9g).” The trial court denied Simpson’s motion, and
Simpson now appeals.

DISCUSSION

¶8 On appeal, we interpret Simpson to be raising the same arguments
that he is entitled to sentence modification based on two new factors. First, he
argues that the effect of his later, post-TIS sentences on his prior, pre-TIS
sentences constitutes a new factor warranting sentence modification. Second, he
argues that his recent HIV positive diagnosis is a new factor warranting sentence
modification and requiring compassionate release. We reject Simpson’s
arguments, and we conclude that Simpson has failed to demonstrate the existence
of a new factor for which he is entitled to sentence modification.

¶9 “Whether a fact or set of facts presented by the defendant constitutes
a ‘new factor’ is a question of law,” which we review independently. Harbor, 333
Wis. 2d 53, ¶33. However, “whether that new factor justifies sentence
modification is committed to the discretion of the circuit court, and we review
such decisions for erroneous exercise of discretion.” Id.

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¶10 A new factor is defined as

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, even though it was then in existence,
it was unknowingly overlooked by all of the parties.

Id., ¶40 (citation omitted). “The defendant has the burden to demonstrate by clear
and convincing evidence the existence of a new factor.” Id., ¶36. Here, we
conclude that Simpson has not demonstrated the existence of a new factor entitling
him to sentence modification.

¶11 First, Simpson’s post-TIS sentences do not have the impact on his
pre-TIS sentences that Simpson asserts. As we interpret his argument, Simpson
construes his post-TIS sentences as extending his parole eligibility and mandatory
release dates for his pre-TIS sentences because he will remain confined following
his pre-TIS sentences. As the State accurately describes, Simpson’s post-TIS
sentences have not extended any parole eligibility or mandatory release date for
his pre-TIS sentences, and Simpson remains entitled to parole eligibility and to be
released as originally established under his pre-TIS sentences. The difference,
however, is that his release from his pre-TIS sentences will now be one of a
release to begin serving the initial confinement portions of his post-TIS sentences
instead of a release into the community. Ultimately, Simpson’s pre-TIS sentences
do not alter the fact that Simpson must still serve his post-TIS sentences that were
imposed for the crimes he committed while serving his pre-TIS sentences.
Consequently, we do not consider Simpson’s post-TIS sentences as a new factor
warranting sentence modification.

¶12 Similarly, Simpson’s HIV positive diagnosis is not a new factor
warranting sentence modification. In fact, Simpson’s allegation that his diagnosis

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constitutes an “extraordinary health condition” under WIS. STAT. § 302.113(9g) is
properly considered first by the Department of Corrections, see § 302.113(9g)(c)
(requiring review by the “program review committee at the correctional institution
in which the inmate is confined”), and it is not properly considered by the court at
this time. However, we further observe that this procedure is not available to
Simpson unless he is serving a bifurcated sentence imposed under the TIS laws,
see § 302.113(9g)(b), and Simpson is currently still serving his pre-TIS sentences.
Any change in Simpson’s health, therefore, is appropriately considered by the
parole board. Accordingly, we conclude that Simpson’s HIV positive diagnosis is
not a new factor warranting sentence modification.

¶13 Last, to the extent that Simpson raises issues of constitutional
vagueness and an ex post facto violation related to the TIS laws and their
application to him as an individual serving pre-TIS sentences, we conclude that his
arguments have not been preserved for appellate review. “It is a fundamental
principle of appellate review that issues must be preserved at the circuit court.
Issues that are not preserved at the circuit court, even alleged constitutional errors,
generally will not be considered on appeal.” See State v. Huebner, 2000 WI 59,
¶10, 235 Wis. 2d 486, 611 N.W.2d 727. Simpson failed to raise any issue of
constitutional vagueness or ex post facto violations below. Indeed, his motion was
specifically titled as a “Notice of Emergency Motion and Motion for Sentence
Modification Pursuant to Sec. 973.19 and 302.113(9g),” and it has been construed
as such.

¶14 Furthermore, Simpson’s claims of constitutional vagueness and an
ex post facto violation are procedurally barred for failing to raise them earlier in
his direct appeal, any of his other four WIS. STAT. § 974.06 postconviction

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motions, or his motion to void and commute sentence. See State v. Escalona-
Naranjo, 185 Wis. 2d 168, 184-86, 517 N.W.2d 157 (1994).

CONCLUSION

¶15 Accordingly, we conclude that Simpson has not demonstrated the
existence of a new factor for which he is entitled to sentence modification, and we
affirm the trial court’s order denying Simpson’s motion.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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