State v. Murry Locke

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.
August 18, 2020
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. 2018AP2446-CR Cir. Ct. No. 2010CF162

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MURRY LOCKE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Oconto County:
DONALD R. ZUIDMULDER, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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).

¶1 PER CURIAM. Murry Locke, pro se, appeals from an order
denying his motion for sentence modification based on two allegedly new factors.
No. 2018AP2446-CR

The first alleged new factor was that one of Locke’s read-in offenses involved the
violation of a statute that was later found to be unconstitutional. Locke asserts the
court improperly considered that offense at his resentencing. The second alleged
new factor was Locke’s unawareness, during his resentencing, of the
circumstances under which a resentencing court can lawfully impose a sentence
longer than that levied at the original sentencing. Locke argues that by imposing a
longer sentence upon his resentencing here, the court violated his rights to due
process and to be free from double jeopardy. For the reasons stated herein, we
conclude that Locke has not shown a new factor that warrants modification of his
sentence. Accordingly, we affirm.

BACKGROUND

¶2 In 2010, Locke was charged with ten counts of possession of child
pornography and with intentionally photographing a minor, as a sex offender,
contrary to WIS. STAT. § 948.14 (2015-16).1 Pursuant to a plea agreement, Locke
pled no contest to two counts of possession of child pornography, with the other
eight possession counts and the count of photographing a minor being dismissed
but read in at sentencing. After accepting Locke’s pleas and finding him guilty,
the circuit court imposed consecutive sentences of ten years’ imprisonment on
each count, with each ten-year term consisting of five years of initial confinement
and five years of extended supervision. The total of the sentences was therefore
ten years’ initial confinement and ten years’ extended supervision.

1
The two sets of charges were made in separate circuit court cases, both of which were
resolved by a global plea agreement.

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No. 2018AP2446-CR

¶3 Locke successfully appealed on the basis that the State had breached
the plea agreement at sentencing, and we reversed Locke’s conviction and
remanded for resentencing. State v. Locke, No. 2012AP2029-CR, unpublished
slip op. (WI App July 30, 2013). Thereafter, Locke was resentenced by a different
judge. At Locke’s resentencing, the circuit court imposed consecutive sentences
of twenty-five years’ imprisonment on each count, consisting of fifteen years of
initial confinement and ten years of extended supervision, for a total of thirty
years’ initial confinement and twenty years’ extended supervision. The parties
later stipulated that Locke’s counsel at the resentencing hearing was
constitutionally ineffective, after which the court vacated the judgment of
conviction and ordered Locke to be resentenced, once again, before a new judge.

¶4 A third judge—the Honorable Donald Zuidmulder—then sentenced
Locke. This time, the circuit court imposed consecutive sentences of twelve
years’ imprisonment on each count, consisting of seven years of initial
confinement and five years of extended supervision, for total sentences of fourteen
years’ initial confinement and ten years’ extended supervision.

¶5 Locke’s appellate counsel then filed a no-merit appeal, to which
Locke filed a response. State v. Locke, No. 2015AP1860-CRNM, unpublished
slip op. and order at 1-2 (WI App Mar. 1, 2017). One of the issues Locke raised in
his response to the no-merit report was that “some error must flow from the
sentencing court’s review of the DOC PSI which, according to Locke, spoke ‘at
length about the read-in charge of [intentionally photographing a minor as a sex
offender].’” Id. at 5. We concluded that “other than to provide background
information, details concerning the prosecution of [that charge] were removed”
from the PSI, and that the charge “was never mentioned by the court at
resentencing.” Id. Ultimately, we rejected Locke’s arguments, accepted the

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No. 2018AP2446-CR

no-merit report, and summarily affirmed the judgment of conviction. Id. at 7. Our
supreme court then denied review.

¶6 In 2018, Locke moved for sentence modification based on two
alleged new factors. He first argued that because the statute prohibiting a sex
offender from photographing a minor had been found unconstitutional in 2015, his
violation of that statute should not have been read in at sentencing or mentioned in
the PSI. Locke also asserted that when he was resentenced, he was unaware that
he could not receive longer sentences than the previous sentences unless new
negative information was presented to the court.

¶7 The circuit court denied Locke’s motion, concluding that the
unconstitutionality of the statutory predicate for the read-in offense, WIS. STAT.
§ 948.14 (2015-16), was not “highly relevant” to Locke’s resentencing. The court
also concluded that even if the unconstitutionality of that statute were a new
factor, it would not warrant sentence modification. The court did not address
Locke’s argument that his unawareness regarding what sentences the court could
permissibly impose on resentencing was also a new factor. Locke now appeals.

DISCUSSION

¶8 A circuit court may modify a defendant’s sentence upon the showing
of a new factor. State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d
828. A new factor consists 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 (quoting Rosado v. State,
70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975)). A defendant seeking sentence
modification “must demonstrate both the existence of a new factor and that the

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No. 2018AP2446-CR

new factor justifies modification of the sentence.” Harbor, 333 Wis. 2d 53, ¶38.
The defendant “has the burden to demonstrate by clear and convincing evidence
the existence of a new factor.” Id., ¶36 (citing State v. Franklin, 148 Wis. 2d 1,
8-9, 434 N.W.2d 609 (1989)).

¶9 Whether the facts presented constitute a new factor is a question of
law, which we review independently of the circuit court. Harbor, 333 Wis. 2d 53,
¶33. However, “[t]he determination of whether that new factor justifies sentence
modification is committed to the discretion of the circuit court,” and that decision
is reviewed for an erroneous exercise of discretion. Id.

¶10 Locke’s first claim for sentence modification is based on a new
factor—namely, that one of Locke’s read-in offenses involved the violation of a
statute that was later found to be unconstitutional, such that the court improperly
considered that offense at his resentencing. This claim fails for two reasons.

¶11 First, under State v. Witkowski, 163 Wis. 2d 985, 473 N.W.2d 512
(Ct. App. 1991), Locke is procedurally barred from relitigating this issue.
Following his final resentencing, Locke’s appellate counsel filed a no-merit
appeal, and Locke filed a response to the no-merit report. Locke,
No. 2015AP1860-CRNM, at 1. In that response, Locke raised an issue regarding
the circuit court’s consideration of the PSI, which according to Locke was
problematic because it discussed his offense related to photographing a minor
despite that statute having been found unconstitutional. Id. at 5. We specifically
rejected Locke’s claim regarding how that read-in offense impacted his
sentencing, concluding that it lacked even arguable merit. Id. Locke cannot raise
that issue again in this appeal. See Witkowski, 163 Wis. 2d at 990 (“A matter once

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No. 2018AP2446-CR

litigated may not be relitigated in a subsequent postconviction proceeding no
matter how artfully the defendant may rephrase the issue.”).

¶12 Locke’s claim regarding this new factor also fails on the merits. As
the circuit court recognized in its order denying Locke’s motion for sentence
modification, the problematic read-in offense was not highly relevant to the
sentences that the court imposed for possession of child pornography.
Judge Zuidmulder stated that when he resentenced Locke, he “focused [the
court’s] lengthy explanation of its sentencing determination in Locke’s case on the
crimes of which Locke had been convicted, and throughout that explanation the
Court made no reference to any of the read in counts.” Regarding the specific
read-in offense of being a sex offender photographing a child, the court noted that
it “made no mention whatsoever of th[at] read in charge.”

¶13 Locke points to nothing in the record, including in the circuit court’s
sentencing remarks, demonstrating that the read-in offense was highly relevant to
the sentence imposed. Although Locke does not dispute that the court never
mentioned the read-in offense when it resentenced him, Locke contends the
read-in charge “is mentioned repeatedly in” the PSI, the private PSI, and the
criminal complaint, making its high relevance to all involved in the case
“obvious.” We disagree. Indeed, as we stated when we accepted the no-merit
report, the PSI removed details concerning that offense, other than to provide basic
background information, and, again, the court never mentioned that charge at
resentencing. Locke, No. 2015AP1860-CRNM, at 5. Nothing Locke argues on
appeal adequately addresses these previously acknowledged circumstances, nor

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No. 2018AP2446-CR

does he otherwise establish this alleged new factor by the required clear and
convincing evidence.2

¶14 Locke’s other claim for sentence modification fares no better. Locke
argues the circuit court violated his constitutional rights at his third sentencing
when it imposed longer sentences than he originally received.3 Locke contends he
was unaware at the time of resentencing that the circuit court could not impose a
longer sentence than he originally received unless it pointed to new information
justifying a longer sentence, and that this unawareness is a new factor warranting
sentence modification. While the circuit court did not address this issue, we
conclude that the record conclusively demonstrates that Locke is not entitled to
relief on this claim.

¶15 As an initial matter, we question both whether this type of claim
constitutes a “new factor” issue and whether it might be procedurally barred. As
to the former question, a defendant’s own unawareness of the particular contours
of sentencing law hardly seems to be a “fact” “highly relevant to the imposition of
sentence, but not known to the trial judge at the time of original sentencing.”
2
The circuit court also concluded that even if the read-in offense being based on an
unconstitutional statute was a new factor, it would not exercise its discretion to modify Locke’s
sentence. The court noted, again, that it did not consider the read-in offense when it imposed the
sentence. The court further stated that “the sentence the Court imposed would not have been any
different had there been one fewer read-in charge; rather, as indicated above, the Court focused
its sentencing determination on the facts underlying the offenses of which Locke had actually
been convicted, as well as the other relevant sentencing factors.” On appeal, Locke does not
address the court’s conclusions in this regard.
3
In fact, the latest sentences totaling fourteen years’ initial confinement and ten years’
extended supervision were only “longer” in relation to Locke’s first sentences, which totaled ten
years’ initial confinement and ten years’ extended supervision. After Locke’s first sentences
were vacated, he received sentences totaling thirty years’ initial confinement and twenty years’
extended supervision. However, we assume for purposes of appeal that Locke’s total present
sentence was a “longer” sentence than he was originally given.

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No. 2018AP2446-CR

Harbor, 333 Wis. 2d 53, ¶40 (citing Rosado, 70 Wis. 2d at 288). At best, if the
court did make a legal error—which, as we explain below, it did not—and if
Locke’s counsel failed to object, all that could arise would be a claim of
ineffective assistance of counsel. As to the latter question, Locke could have
raised such an issue in his response to his counsel’s no-merit report. If the
required no-merit procedure was properly followed, a defendant may not raise an
issue in a subsequent postconviction motion that he or she could have raised in
response to a no-merit report, absent a sufficient reason for failing to raise the
issue earlier in the no-merit appeal. State v. Allen, 2010 WI 89, ¶61, 328 Wis. 2d
1, 786 N.W.2d 124.

¶16 In any event, we reject Locke’s argument on the merits. His
argument relies on the notion that he was given a longer sentence upon
resentencing as punishment for challenging his earlier sentence. Contrary to
Locke’s argument, there is no presumption of vindictiveness on the circuit court’s
part merely because a defendant receives a greater penalty when he or she is
resentenced after his or her original sentence is vacated. See State v. Naydihor,
2004 WI 43, ¶38, 270 Wis. 2d 585, 678 N.W.2d 220. Rather, a presumption of
vindictiveness applies only when there exists a “‘reasonable likelihood’ that the
increase in sentence is the product of actual vindictiveness on the part of the
sentencing authority.” Alabama v. Smith, 490 U.S. 794, 799 (1989) (citation
omitted). As relevant here, the presumption of vindictiveness does not apply when
“the defendant was resentenced by a different judicial authority at his request due
to a non-judicial defect at the original sentencing hearing, and the resentencing
was granted by the original court in which the defect occurred.” Naydihor, 270
Wis. 2d 585, ¶56.

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No. 2018AP2446-CR

¶17 The foregoing is precisely what occurred here. Just like in
Naydihor, Locke was resentenced by a different judge at his request, due to an
error by someone other than the judge (it was his own defense counsel’s failings),
and the court that imposed the overturned sentence granted the motion for
resentencing. See id. In this context, there is “no realistic motive for vindictive
sentencing” and “no hazard” that Locke was being punished for seeking
enforcement of his plea bargain or seeking a new sentence because of the
ineffective assistance of his counsel. See id. Notably, Locke did not even address
Naydihor in his reply brief to this court, and he did so only superficially in his
initial brief.

¶18 “[W]here the presumption does not apply, the defendant must
affirmatively prove actual vindictiveness.” Wasman v. United States, 468 U.S.
559, 569 (1984). Locke does little to claim actual vindictiveness on the part of
Judge Zuidmulder, much less prove its existence. At most, Locke asserts that the
resentencing court was vindictive because, in its decision denying his motion to
modify his sentence, the court did not mention the reasons for increasing the
sentence or “specify on the record what new factors it used to increase the
sentence.”4 None of the authorities on which Locke relies required the court to
address these issues, and any such omission does not prove vindictiveness. Locke
points to nothing in the transcript of the resentencing hearing, or any other
circumstance, that demonstrates vindictiveness. He therefore has, again, not

4
Locke relies on a 1992 unpublished opinion, State v. Norwood, No. 1992AP334,
unpublished slip op. (WI App Dec. 2, 1992). Citation to, and reliance on, such a case are
prohibited by WIS. STAT. RULE 809.23(3) (2017-18). We recognize that Locke is proceeding pro
se, but even pro se appellants are required to follow the rules of appellate procedure. See
Waushara Cty. v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992). In any event, for the
foregoing reasons, we do not discuss the Norwood case in this opinion.

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No. 2018AP2446-CR

shown by clear and convincing evidence a new factor warranting sentence
modification.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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