On Point blog, page 427 of 483
Modification — New Factor — Rehabilitation — Truth-in-Sentencing
State v. Dawn M. Champion, 2002 WI App 267, PFR filed 12/2/02
For Champion: Patricia L. Arreazola
Issue: Whether the defendant’s early completion of all available rehabilitation programs is a new factor justifying reduction of the confinement portion of her sentence.
Holding:
¶13. Our review of the legislative history of 1997 Wis. Act 283 demonstrates that the legislature intended something inconsistent with Champion’s proposal.
Sentence Modification — New Factor — Defendant’s “New-Found Realization” of Past Victimization
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: Defendant’s new-found realization that his behavior was caused by childhood sexual exploitation isn’t a new factor justifying sentence reduction: “¶25 … Just as a new expert opinion based on previously known or knowable facts is nothing more than the newly discovered importance of existing evidence … not newly discovered evidence for purposes of plea withdrawal,
Modification — New Factor: Reversal of Conviction in Another Case
State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook
Issue/Holding: Reversal of defendant’s conviction in another case is new factor (where remaining, valid sentence was concurrent to vacated sentence) upon which trial court may, but is not required, to reduce sentence.
Sentence Modification — Procedure — Notice to State
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: The trial court erred in granting a motion to modify sentence without either seeking the state’s response or holding a hearing. Procedure on motion to modify sentence is similar to that for a post-conviction motion under § 974.06(3) — if the motion is obviously non-meritorious, the trial court should deny it outright;
Sentence Modification — Procedure — Timeliness
State v. Robert L. Noll, 2002 WI App 273
Issue: Whether a new-factor based motion to modify sentence may be rejected as untimely under § 973.19.
Holding: The motion invoked the trial court’s inherent authority to modify, and therefore § 973.19 and its 90-day deadline was inapplicable. ¶5. The two procedures are distinct. Under § 973.19 a defendant may within 90 days of sentence “assert[] an erroneous exercise of discretion based on excessiveness,
SVP Commitments: Conditions of Confinement: Blanket Policy of Restraint During Transport
Richard Thielman v. Leean, 2002 WI App 33
Companion case: Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002)For Thielman: Mary Kennelly
Issue/Holding:
¶1. The Department of Health and Family Services (DHFS) appeals the circuit court’s order enjoining DHFS from transporting Richard Thielman and similarly committed ch. 980 patients to and from treatment facilities such as Wisconsin Resource Center (WRC) in full restraints without first making individualized determinations that restraints are needed during transport.
SVP – Trial – Jury Selection – Failure to Strike Juror – Reviewability
State v. Richard A. Brown (II), 2002 WI App 260, PFR filed 10/22/02
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶16. Brown next argues that the trial court erred in failing to strike a prospective juror for cause and that he was prejudiced by being forced to use one of his peremptory strikes to remove him. Although a few years ago,
SVP – Trial – Jury Selection – Number of Peremptory Challenges
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue: Whether a respondent is entitled to the number of peremptory challenges prescribed by § 972.03, because of the potential for life-long custody.
Holding: Because an SVP respondent is entitled to periodic review, the analogy to a life sentence fails, and peremptory challenges are regulated by § 805.08(3) (three challenges,
SVP – Pretrial – Petition — Timeliness — Calculation of Release Date on Concurrent Sentences
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue: Whether the state’s petition was timely, where the respondent had already completed his sentence on the qualifying conviction but was serving concurrent sentences with the controlling sentence a non-qualifying conviction.
Holding: State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997) (petition timely filed where respondent serving consecutive sentences) extended to concurrent sentences:
¶17.
Sentencing – Factors – Interplay with First Amendment-Protected Activity
State v. Aaron O. Schreiber, 2002 WI App 75, PFR filed 3/12/02
For Schreiber: William J. Donarski
Issue/Holding: “A sentencing court may consider writings and statements otherwise protected so long as there is a sufficient nexus to the defendant’s conduct and where the writings are relevant to the issues involved.” ¶16, citing Dawson v. Delaware, 503 U.S. 159, 164 (1992).