On Point blog, page 176 of 214
SVP – Postdisposition – Discharge Procedure – Right to counsel, timing of appointment
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 lateness of counsel’s appointment, six days before the paper review probable cause hearing, violated due process.
Holding: Construing Thayer’s argument to raise a contention that due to lateness of the appointment, counsel “had insufficient time to prepare for the probable cause hearing,”
SVP – Substantive Due Process – Automatic SVP commitment to secure confinement
State v. Ronald Ransdell, 2001 WI App 202, PFR filed 8/27/01
For Ransdell: Ellen Henak, SPD, Milwaukee Appellate
Issue: Whether the automatic initial commitment to institutional care provision, § 980.06, on its face violates substantive due process.
Holding: A person challenging the constitutionality of a statute must show its infirmity beyond reasonable doubt; a statute restricting liberty implicates a “strict-scrutiny” test. ¶5. Applying this test, § 980.06 does not violate due process: requiring that a commitment subject first undergo evaluation and treatment in an institutional setting before a decision is made as to supervised release is a reasonable legislative policy determination;
Sentencing – Factors – Exercising Right to Trial/Evaluation of Defendant’s Testimony
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the sentencing court punished the defendant for going to trial and by stressing the perceived falsity of the theory of defense.
Holding:
¶66. We do not agree with Gribble’s claim that the trial court was punishing him for “defense counsel’s lawful efforts to support the defendant’s claim of innocence.”
Sentencing – Review – Factors — Use of Pretrial Psychiatric Evaluation
State v. Joshua Slagoski, 2001 WI App 112, PFR filed 4/27/01
For Slagoski: Christopher William Rose
Issue1: Whether the results of a competency examination, which suggested that defendant presented a homicide-suicide risk, amounted to materially inaccurate information used at sentencing.
Holding:
¶9 We conclude that it is entirely reasonable that a mental competency examination designed to address a defendant’s ability to understand the proceedings and assist counsel may also address issues of future dangerousness.
Sentencing – Review – Factors — Defense Right to Present — Limited by Relevancy
State v. Shomari L. Robinson, 2001 WI App 127, 629 N.W.2d 810, PFR filed 5/7/01
Robinson: Joseph L. Sommers
Issue: Whether the trial court impermissibly limited the defense presentation at sentencing.
Holding:
¶19 What remains is for us to consider whether the trial court erroneously exercised its discretion by prohibiting Robinson from presenting his “car evidence” at sentencing. As the trial court correctly noted,
Sentencing – Review — Sentence Exceeding Statutory Maximum — Consecutive Terms of Probation — Remedy
State v. Glenn F. Schwebke, 2001 WI App 99, 242 Wis. 2d 585, 627 N.W.2d 213, affirmed on other grds., 2002 WI 55
For Schwebke: Keith A. Findley, UW Law School
Issue/Holding: The remedy for this sentence which exceeded the permissible maximum — multiple counts of probation running consecutive to one another, ¶¶25-30 — is to commute the excess portion to the total allowable term of probation.
SVP – Postdisposition: Supervised Release – Reconsideration – Newly Discovered Evidence – Assessment of Pre-Existing Information
State v. Daniel Williams, 2001 WI App 155
For Williams: Adrienne M. Moore, SPD, Racine Trial
Issue: Whether the grant of a petition for supervised release (§ 980.08) can be vacated on the basis of a periodic re-examination report (§ 980.07) which is a mere assessment of the same information utilized during the supervised release proceeding.
Holding: A motion for relief from judgment, § 980.07, may be based on newly discovered evidence,
SVP – Trial: Witnesses – Expert – Qualifications
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether the trial court erred in refusing to qualify a social worker as an expert in this Ch. 980 supervised release proceeding.
Holding: Because the witness had “expertise with respect to treating sex offenders … she was qualified to give her opinion on the ultimate issue.” ¶29.
Bail: Forfeiture – Discretion
Barbara Melone v. State, 2001 WI App 13, 240 Wis. 2d 451, 623 N.W.2d 179For Melone: Theodore B. Kmiec III
Issue: Whether the trial court properly exercised discretion in declining to set aside an order forfeiting bail, where the court indicated that it “always refuses to return [forfeited] bail money no matter what the circumstance,” ¶1.
Holding: “[T]he statute on bail forfeitures, WIS. STAT. § 969.13(2) (1997-98), requires the court to exercise discretion and consider factors for and against enforcing the forfeiture on a case-by-case basis.
Review – Conflict between oral pronouncement written judgment
State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: “(W)here there is conflict between a trial court’s oral pronouncement and a written judgment, the oral pronouncement controls.” ¶27, citing State v. Perry, 136 Wis. 2d 92, 114, 401 N.W.2d 748 (1987). This rule is applicable even though “the trial court’s oral pronouncement came after, rather than before,