On Point blog, page 89 of 215
SVP Commitment – Test for Commitment: Risk of Offense “More Likely Than Not” = Greater Than 50%
State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: “(T)he phrase ‘more likely than not’ in the statute means what it says: that an event is more likely to occur than not to occur; that is, has a greater than 50% chance of happening. Thus, in order to find Smalley a sexually violent person,
SVP Commitment – Use Of Actuarials
State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶18 Smalley notes that the actuarial instruments fail to take an individual’s mental disorder into account, and that they therefore predict dangerousness in general, rather than dangerousness due to mental disorder. He argues that because a jury in a Wis. Stat. ch.
SVP Commitments – Proof of Overt Act of Dangerousness: Not Required as Matter of Equal Protection
State v. Steven C. Feldmann, 2007 WI App 35, PFR filed 3/23/07
For Feldmann: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The ch. 980 omission of required proof of a recent overt act of sexual violence does not violate equal protection, as compared with the ch. 51 mental health commitment requirement of proof of a recent overt act demonstrating dangerousness.
The supreme court refused to impose such requirement under ch.
Re-Sentencing – Generally
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶6 “When a resentencing is required for any reason, the initial sentence is a nullity; it ceases to exist.” Carter, 208 Wis. 2d at 154. In resentencing “the court imposes a new sentence after the initial sentence has been held invalid.” Id. at 147.
Re-Sentencing – Modification of Sentence, Distinguished
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶7 Counsel for Wood points out that published opinions have been somewhat imprecise in distinguishing between the requirements for, and effect of, sentence modification as opposed to resentencing. We acknowledge that language has, on occasion, been imprecise. …
…
¶9 Similarly, in State v.
Sentence – Modification – New Factor: Parole Policy
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding: The governor’s 1994 letter exhorting bureaucratic opposition to (pre-TIS) parole for certain crimes was not a new factor, even though the sentencing court expressly took into consideration DOC data purporting to show the likely chance of parole:
¶11 We held in Delaney that the Thompson 1994 letter was not a “new factor” in part because: (1) there was no showing that the 1994 letter had any impact on Delaney’s discretionary parole eligibility;
Sentencing – Review – Modification – “New Factor,” Generally
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶5 A new factor, as defined in Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), is
a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing,
Sentencing – Review – Excessiveness – Sexual Contact, Closeness in Age between Defendant and Minor Victim
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: Sentence of 13 years (3 IC; 10 ES) for sexual contact was not harsh and excessive, notwithstanding closeness in age between defendant and underage victim:
¶12 As to excessiveness, Thexton notes that he was close in age to the victim. The sexual contact between the two began when he was seventeen and she fourteen and ended when he was eighteen and she fifteen.
Sentencing Review – Exercise of Discretion: Adequacy of Linkage of Objectives to Length
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: The sentencing court satisfied Gallion’s required linkage:
¶11 … Here, the court explained that it did not consider Thexton’s conduct so serious that it required Thexton to be incarcerated for the length of time that might be appropriate for other sex offenders,
Counsel – Ineffective Assistance – Deficient Performance: Law Must Be Clear – Juror Dissent After Guilty Verdict Accepted and Phase II (NGI) Deliberations Begun
State v. Jennifer Wery, 2007 WI App 169
For Wery: Elizabeth Ewald-Herrick
Issue/Holding:
¶17 Wery’s counsel’s failure to object did not constitute deficient performance. Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994).