On Point blog, page 175 of 214
Sentence Modification — New Factor — Post-Sentencing Revocation — Linkage to Intended Drug Treatment
State v. Steve Norton, 2001 WI App 245
For Norton: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether an unanticipated, post-sentencing revocation amounted to a new factor justifying modification of sentence.
Holding:
¶10. Although we agree with the State that, in general, revocation of probation in another case does not ordinarily present a new factor, the specific facts involved in this case require an exception to the general rule.
Sentence Modification — New Factor — Lesser Culpability — Not “Unknowingly Overlooked”
State v. Andre D. Crockett, 2001 WI App 235, PFR filed
For Crockett: David D. Cook
Issue:Whether facts suggesting that the defendant might have been less culpable than his codefendants amounted to a new factor justifying modification of sentence.
Holding: A new factor may be relate to facts “unknowingly overlooked” at sentencing; here, although the asserted new factor may have been unknowingly overlooked by the sentencing court,
Sentence Modification — New Factor — Escalona-Naranjo Bar to Raising
State v. John Casteel, 2001 WI App 188, PFR filed
Issue: Whether Casteel’s failure to argue in a prior new-factor based attempt to modify sentence bars him from now arguing that the special action release program, § 304.02 — a statute extant at the time of the prior motion to modify — is a new factor.
Holding:
¶17. We note that the special action parole release statute was first adopted in 1989.
Sentence Modification — New Factor: Transfer to out-of-state Prison
State v. Anthony A. Parker, 2001 WI App 111
Issue: Whether transfer to an out-of-state prison was a new factor supporting sentence modification.
Holding:
¶11. Parker contends that his transfer out of state is a new factor that frustrates the purpose of his sentence because his placement no longer coincides with the judgment of conviction confining him to ‘Wisconsin state prisons.’ Parker’s reliance upon these words is excessively literal and finds no support in the case law.
SVP – Trial: Evidence – Other Crimes
State v. David J. Wolfe, 2001 WI App 136, 246 Wis.2d 233, 631 N.W.2d 240, PFR filed 5/18/01
For Wolfe: Ann T. Bowe
Issue: Whether evidence of the respondent’s arson adjudication, and institutional violations and misconduct while at an adolescent treatment center were admissible under § 904.04.
Holding:
¶37 Diagnoses of a mental disorder and dangerousness are directly foretold through past conduct.
SVP – Jury Waiver – Advisal of Right to Jury Unanimity
State v. Kerby G. Denman, 2001 WI App 96, 243 Wis. 2d 14, 626 N.W.2d 29.
For Denman: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether a Ch. 980 respondent’s jury waiver requires advice of the right to a unanimous verdict.
Holding: The court “look(s) to WIS. STAT. § 980.05(2), rather than the case law governing the waiver of a the constitutional right to a jury trial in criminal cases,
SVP – Postdisposition: Expert – Right to, Re-exam
State v. Dennis R. Thiel (III), 2001 WI App 32, 241 Wis. 2d 465, 626 N.W.2d 26
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the trial court properly exercised discretion in refusing the indigent’s request for an independent expert on a § 980.07(1) (1997-98) reexamination.
Holding:
¶25 The first use of the word ‘may’ in WIS. STAT. § 980.07(1) (‘the person who has been committed may retain ….’) affords Thiel the option of requesting a second expert.
SVP – Qualifying Predicate Offense
State v. Aaron K. Gibbs, 2001 WI App 83, 242 Wis. 2d 640, 625 N.W.2d 666
For Gibbs: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether a delinquency adjudication under former Wis. Stat. Ch. 48 (1993-94) supports a Ch. 980 petition.
Holding:
¶7 The question is whether in 1997 the circuit court had the authority under the 1997-98 version of WIS.
SVP – Postdisposition – Burden of persuasion, petition for discharge probable cause hearing
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the trial court improperly assigned the burden of persuasion to the inmate at the § 980.09(2)(a) probable cause hearing.
Holding: The burden of persuasion is assigned to neither party at a § 908.09(2)(a) hearing, the purpose of which is simply to conduct a paper review to determine whether a full evidentiary hearing is necessary.
SVP – Postdisposition – Discharge Procedure – Right to full evidentiary hearing after “paper review”
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the patient was entitled to a full evidentiary hearing on release following the reexamination probable cause “paper review.”
Holding:
¶26 A full evidentiary hearing was unwarranted. The only evidence before the trial court indicated that the grounds for Thayer’s original WIS.