On Point blog, page 131 of 214

Sentence – Modification/Review – New Factor, Extended Supervision – TIS-II Reduction in ES Maximum

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶42. Finally, Longmire cites three matters which he argues are “new factors” and thus grounds for the trial court to modify his term of extended supervision:  (1) a reduction in the maximum term of extended supervision for the class of felony of which Longmire was convicted; (2) the rationale of the Criminal Penalties Study Committee Final Report on 1997 Wisconsin Act 283 for recommending reduced maximum terms of supervision….

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SVP – Trial – Jury Instructions – Consequences of Discharge

State v. Joseph A. Lombard, 2004 WI App 52, PFR filed 3/19/04
For Lombard: David Karpe

Issue: Whether, in response to a jury question during deliberations in this SVP discharge trial, the trial court was obligated to instruct that if Lombard were discharged he would still be subject to 40 years of probation / parole supervision on the underlying offense.

Holding:

¶13.

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SVP – Post-Disposition: Petition for Discharge Procedure, § 980.09(2) (2004) – Probable Cause Hearing / Full Evidentiary Hearing

State v. Dennis R. Thiel, 2004 WI App 140, PFR filed 7/16/04
For Thiel: Suzanne L. Hagopian

Issue: Whether an examiner’s recommendation of supervised release established probable cause that Thiel was no longer a sexually violent person and therefore supported a full evidentiary hearing on release, pursuant to § 980.09(2).

Holding:

¶15. Thiel’s claim falls under Wis. Stat. § 980.09(2), which sets forth the procedural posture for a committed individual’s petition for discharge without the approval of the secretary of the Department of Health and Human Services.

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SVP – Post-Disposition: Petition for Discharge Procedure – Delay in Implementing Remand Order of Appellate Court

State v. Dennis R. Thiel, 2004 WI App 140, PFR filed 7/16/04
For Thiel: Suzanne L. Hagopian

Issue/Holding:

¶27. We now turn to the second issue on appeal-that being, whether Thiel’s due process rights were violated because the circuit court failed to initiate proceedings following remand by this court and therefore nothing occurred until Thiel initiated proceedings by writing to the court nearly ten months later.

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SVP – Trial – Special Verdicts – Equal Protection

State v. Jesse J. Madison, 2004 WI App 46, PFR filed 3/12/04
For Madison: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶5. Alternatively, Madison argues that he has a constitutional right, on equal protections grounds, to a special verdict. See Wis. Const. art. I, § 1. This equal protection argument stems from an alleged disparate application of special verdicts, under Wis. Stat. § 805.12(1),

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SVP – Trial – Special Verdicts – Trial Court Discretion

State v. Jesse J. Madison, 2004 WI App 46, PFR filed 3/12/04For Madison: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶3. Madison first claims that he has a statutory right to a special verdict under Wis. Stat.§ 805.12(1)See State v. Rachel, 224 Wis. 2d 571, 575, 591 N.W.2d 920 (Ct. App.

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Sentencing – Review — Factors — Defendant’s Age

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler

Issue: Whether the sentencing court placed insufficient weight on defendant’s elderly age as a mitigating factor, and the likelihood he would not survive the confinement portion of his sentence.

Holding:

¶12. We agree with Stenzel that his age is a factor that the circuit court may consider as an aggravating or mitigating factor when imposing sentence.

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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,

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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.

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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.” 

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