On Point: B. Published opinions

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,

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.

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,

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).

State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07
For Walker: Amelia L. Bizzaro

Issue: Whether counsel deficiently advised Walker to waive ES revocation, in that counsel determined that investigation of alternatives to revocation would be futile.

Holding:

¶14 Dudley’s decision to advise Walker to waive the revocation hearing is within the core of a lawyer’s responsibility to devise the best strategy to protect a client’s interests.

State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding:

 ¶13   Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”),

State v. Ahern Ramel, 2007 WI App 271
For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate

Issue/Holding:

¶14      A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. See id. Here, however, with no explanation from the sentencing court of how the fine imposed advanced those objectives,

State v. Daniel J. Machgan, 2007 WI App 263
For Machgan: Patrick M. Donnelly

Issue/Holding: An out-of-state administrative DL suspension, not the result of a refusal, isn’t counted as a “conviction” for purposes of OWI enhancement:

¶12      After examination of these relevant statutes, we conclude that Wis. Stat. § 343.307, as the specific statute addressing out-of-state convictions, suspensions or revocations that are to be counted as priors for the purpose of penalty enhancement,

State v. Aprylann Wuteska, 2007 WI App 157, PFR filed 6/14/07
For Wuteska: Mark H. Bennett

Issue/Holding: The plain text of § 346.67(1)(a) requires the operator of a vehicle involved in an accident resulting in injury to a person or damage to a vehicle to identify him or herself as the operator:

¶13 Applying these principles, we conclude the only reasonable meaning of Wis.

State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg

Issue/Holding: The definition of “highway” for purposes of the hit-and-run statute, § 346.67(1), is found in § 340.01(22), ¶ n. 3.