State v. James F. Foote

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.
October 12, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP812-CR Cir. Ct. No. 2001CF58

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES F. FOOTE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
ELLEN K. BERZ, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, and Nashold, 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. James Foote, pro se, appeals a circuit court order
denying his motion for sentence modification without an evidentiary hearing. He
No. 2022AP812-CR

argues that there are new factors justifying sentence modification. He also argues
that the court sentenced him based on inaccurate information and that his sentence
is unduly harsh and unconscionable. We conclude that Foote fails to show the
existence of a new factor and that his remaining arguments are procedurally
barred. Accordingly, we affirm.

¶2 Foote was convicted of attempted first-degree intentional homicide
and first-degree reckless injury in 2001, based on his involvement in an incident
that left the victim “close to a vegetative state” with no prospect for recovery. The
circuit court sentenced Foote to sixty years of imprisonment consisting of forty
years of initial confinement and twenty years of extended supervision.

¶3 In 2004, we summarily affirmed the judgment of conviction in a no-
merit appeal. See State v. Foote, No. 2002AP2478-CRNM, unpublished op. and
order (WI App Jan. 21, 2004). Foote then filed a postconviction motion pursuant
to WIS. STAT. § 974.06 (2021-22).1 The circuit court denied the motion, and we
affirmed on appeal. See State v. Foote, No. 2004AP3283, unpublished op. and
order (WI App Oct. 19, 2005). Subsequently, Foote filed the motion for sentence
modification at issue here.

¶4 As a threshold matter, Foote argues that the circuit court erred by
adopting the State’s brief as its reasoning, without providing any independent
reasoning of its own in denying his motion. The State responds that the court’s
adoption of its brief, if error, is harmless in this instance. We agree with the State.
This type of error is harmless when, as here, we are in a position to review the

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP812-CR

defendant’s claims de novo. See State v. Lock, 2013 WI App 80, ¶12, 348 Wis. 2d
334, 833 N.W.2d 189; State v. McDermott, 2012 WI App 14, ¶9 n.2, 339 Wis. 2d
316, 810 N.W.2d 237. We turn to address Foote’s claims.

¶5 Foote first claims that there are new factors justifying sentence
modification. “A new-factor analysis is a two-step process: (1) is there a ‘new
factor,’ and, if so, (2) does the ‘new factor’ justify modification of the defendant’s
sentence?” McDermott, 339 Wis. 2d 316, ¶9. Under the first part of this test, the
defendant has the burden to demonstrate the existence of a new factor by clear and
convincing evidence. Id. We review de novo whether the defendant has met that
burden. Id. Under the second part of the test, if the defendant has shown the
existence of a new factor, whether the new factor justifies sentence modification is
a discretionary determination by the circuit court. Id. Here, we conclude that
Foote has not established the existence of any new factor.

¶6 The definition of a new factor is set forth in case law. It is “‘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.’” State v. Harbor, 2011 WI 28, ¶40, 333 Wis. 2d
53, 797 N.W.2d 828 (quoted source omitted).

¶7 Foote argues that the following circumstances constitute a new
factor: (1) at about age ten he was exposed to a hate crime involving a cross
burning; (2) at about age sixteen, he witnessed the brutal stabbing of his mother by
his father; (3) at age eighteen, he was the victim of a violent crime in which he
was beaten with a baseball bat; and (4) he grew up in low-income neighborhoods
in which he was frequently exposed to drug and alcohol abuse, bullying,

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No. 2022AP812-CR

intimidation, and discrimination. He argues that these circumstances were highly
relevant to the imposition of sentence but not considered by the sentencing court.

¶8 We conclude that Foote’s new-factor argument fails because none of
the alleged circumstances are new. Rather, all of these circumstances were in
existence when he was sentenced, at age thirty, and would have been known to
him at that time. See State v. Crockett, 2001 WI App 235, ¶14, 248 Wis. 2d 120,
635 N.W.2d 673 (concluding that no new factor existed when the defendant was
aware of the relevant facts, even if the sentencing court may have “unknowingly
overlooked” those facts).

¶9 Foote also appears to argue that an expert report prepared in 2020 is
a new factor. The report, although new, is not a new factor because it is based on
the same previously known circumstances. See State v. Sobonya, 2015 WI App
86, ¶7, 365 Wis. 2d 559, 872 N.W.2d 134 (concluding that an expert’s opinion
based on previously known or knowable facts was not a new factor).

¶10 Construing Foote’s briefing liberally, it appears that he may also be
arguing his rehabilitation in prison is a new factor. We reject this argument
because “courts of this state have repeatedly held that rehabilitation is not a ‘new
factor’ for purposes of sentence modification.” State v. Kluck, 210 Wis. 2d 1, 7,
563 N.W.2d 468 (1997).

¶11 Foote next claims that the circuit court sentenced him based on
inaccurate information. He argues that the court incorrectly found that he grew up
in a productive, intact, and functional home life and environment, and that the
court relied on this inaccurate information in making a negative assessment of his
character.

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No. 2022AP812-CR

¶12 We conclude that Foote’s claim that he was sentenced based on
inaccurate information is procedurally barred by State v. Escalona-Naranjo, 185
Wis. 2d 168, 517 N.W.2d 157 (1994). Under Escalona-Naranjo, a defendant may
not raise a claim in a successive postconviction motion if the claim could have
been raised in a previous postconviction motion or appeal, unless the defendant
demonstrates a “sufficient reason” for failing to raise the claim previously. See id.
at 185-86. Here, Foote had a previous no-merit appeal and a previous
postconviction motion under WIS. STAT. § 974.06, and he has not provided a
sufficient reason for failing to raise his claim previously.

¶13 Foote next claims that his sentence was unduly harsh and
unconscionable. This claim is also procedurally barred, but for a different reason.
The issue of whether Foote’s sentence was unduly harsh and unconscionable was
addressed in Foote’s no-merit appeal and, therefore, may not be relitigated in a
subsequent postconviction proceeding. See State v. Witkowski, 163 Wis. 2d 985,
990, 473 N.W.2d 512 (Ct. App. 1991) (“A matter once litigated may not be
relitigated in a subsequent postconviction proceeding no matter how artfully the
defendant may rephrase the issue.”).2

¶14 Finally, Foote argues that, even if his alleged claims do not
individually justify sentencing relief, they “collectively” do. We reject this
argument because Foote provides no authority to support it, and because we see no
basis to conclude that the individual claims have any cumulative effect that would
justify sentencing relief.

2
We concluded in the no-merit appeal that Foote’s sentence “is not excessive, under any
reasonable view, for crimes that effectively ended the victim’s life.” State v. Foote,
No. 2002AP2478-CRNM, unpublished op. and order at 4 (WI App Jan. 21, 2004).

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No. 2022AP812-CR

¶15 In sum, for the reasons stated above, we affirm the circuit court’s
order denying Foote’s motion for sentence modification.

By the Court.—Order affirmed.

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

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