On Point blog, page 402 of 484
Sentencing – Review — Factors — Defendant’s Life Expectancy
State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue: Whether the sentencing court placed insufficient weight on the likelihood defendant would not survive the confinement portion of his sentence.
Holding:
¶17. Stenzel faults the court for not assigning any relevancy to his life expectancy. He argues that he was seventy-eight years old at the sentencing and the eight years of initial confinement is very close to the 10.4 years of his life expectancy,
Sentencing – Factors: Basing Length of Extended Supervision Term on Making Restitution Payments
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the sentencing court erroneously exercised discretion, or violated equal protection, in setting an excessive length of extended supervision so as to ensure that the defendant satisfies the restitution order.
Holding: “¶39. We conclude that the trial court’s sentencing rationale, taken as a whole, did not constitute an erroneous exercise of discretion.
Sentencing – Review — Harsh & Excessive, Generally
State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue/Holding:
¶21. Finally, Stenzel asserts that the court erroneously exercised its discretion because the sentence is unduly harsh and unconscionable. When a defendant argues that his or her sentence is unduly harsh or excessive, we will hold that the sentencing court erroneously exercised its discretion “only where the sentence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”
Competency: Discharge / Reevaluation
State v. Keith M. Carey , 2004 WI App 83, PFR filed 4/22/04
For Carey: Paul LaZotte, SPD, Madison Appellate
Issue/Holding:
¶10. Pursuant to Wis. Stat. § 971.14(5)(a), if the court finds that a defendant is not competent, but is likely to become competent, it may commit the defendant to the custody of the department of health and family services for a period of time not to exceed twelve months or the maximum sentence for the most serious offense with which the defendant is charged,
Appellate Procedure – Standard of Review: Testify, Defendant’s Right to
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶11. A defendant’s right to testify is a fundamental constitutional right. State v. Simpson, 185 Wis. 2d 772, 778, 519 N.W.2d 662, 663 (Ct. App. 1994). A defendant may, however, waive the right to testify. State v. Wilson, 179 Wis. 2d 660,
Writs – Certiorari – Availability
State ex rel. David C. Myers v. Swenson, 2004 WI App 224, PFR filed 11/24/04
For Myers: Christopher T. Sundberg; Bruce D. Huibregtse
Issue/Holding:
¶8. Myers appears to argue that the Wisconsin courts retain the ability to conduct certiorari review of a Wisconsin inmate’s due process or equal protection challenge to a disciplinary action, even if the challenge involves conduct and a disciplinary proceeding that took place while the inmate was housed out of state.
Writs – Certiorari – Judicial Act – Review Limited to Determining Tribunal’s Jurisdiction
State v. Christopher Swiams, 2004 WI App 217
For Swiams: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶8. … The State contends, however, that reconfinement orders may only be reviewed via common-law certiorari and not under Wis. Stat. Rule 809.30. It relies on State v. Bridges, 195 Wis. 2d 254, 536 N.W.2d 153 (Ct. App. 1995) (per curiam).…
¶10.
Sentencing Review – Factors – TIS, Generally
State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue/Holding:
¶6. In State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the Wisconsin Supreme Court revisited the seminal case in sentencing jurisprudence, McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971) …¶7. The appellate standard of review is limited to determining if the sentencing court erroneously exercised its sentencing discretion.
Sentencing Review – Factors – Proof: Prior Acquittal
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶54. It is “‘well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.’” United States v. Watts, 519 U.S. 148, 152 (1997) (per curiam) (quoted source omitted,
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Opening Door to “Haseltine” Evidence, on Tactical Grounds
State v. John R. Maloney, 2004 WI App 141, affirmed, 2005 WI 74
For Maloney: Lew A. Wasserman
Issue/Holding:
¶18. Maloney complains trial counsel invited a Haseltine violation against him by asking on cross-examination whether Skorlinski believed anything Maloney had told him in the investigation. See State v. Haseltine, 120 Wis. 2d 92,