On Point blog, page 7 of 14
Sentencing Review – Factors – Youthfulness of Defendant
State v. Lonnie C. Davis, 2005 WI App 98
For Davis: Pamela Moorshead
Issue: Whether the sentencing court erroneously exercised discretion by failing to consider the defendant’s youthfulness (14 years 9 months) at the time he committed the sexual assaults.
Holding:
¶16 A review of the sentencing transcript demonstrates that the trial court did not erroneously exercise its discretion when it sentenced Davis ….
Sentencing Review – Factors – Probation
State v. Eduardo Jose Trigueros, 2005 WI App 112
For Trigueros: Eileen Miller Carter
Issue/Holding:
¶8 Second, Trigueros claims that the trial court erroneously exercised its discretion because it did not consider probation as an option. Again, we disagree. In each case, the sentence imposed shall “call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” McCleary,
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Failure to Investigate Facts (Impeachment of Key Witnesses
State v. Jeannie M.P., 2005 WI App 183
For Jeannie M.P.: Michael Yovovich, Eileen Hirsch, SPD, Madison Appellate
Issue/Holding: Where counsel knew, or should have known, of evidence establishing possible motives for each of the two crucial State’s witnesses; and where adducing evidence of those motives would have been consistent with the chosen theory of defense, counsel’s failure to bring out that evidence at trial was deficient,
Disobedient Child Defense to Compulsory School Attendance, § 118.15(5)(b)2
State v. Gwendolyn McGee, 2005 WI App 97
For McGee: Amelia L. Bizarro
Issue/Holding: The disobedient-child defense to a compulsory-attendance charge is an affirmative defense issue to be presented to the fact-finder at trial for resolution (as opposed to disposition by pretrial motion).
Defenses – Issue Preclusion: TPR
Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder
Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9.
The court remands for determination of whether issue preclusion is appropriate in this instance,
OWI – Penalty Provision – Timing of Priors
State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell
Issue: Whether the number of prior OWI convictions used for penalty enhancement, § 346.65(2), is determined as of date offense is committed or date of sentencing for offense.
Holding:
¶5. How and when to count prior OMVWI convictions for purposes of penalty enhancement under Wis.
OWI — Evidence – Admissibility, Field Sobriety Tests
State v. Richard B. Wilkens, 2005 WI App 36
For Wilkens: Waring R. Fincke
Issue/Holding:
¶14. In Wisconsin, the general standard for admissibility is very low. Generally, evidence need only be relevant to be admissible. See Wis. Stat. § 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) (“All relevant evidence is admissible unless otherwise provided by law.”).
OWI — Implied Consent, Driver’s Request for Additional Test, § 343.305 (5)(a), Made After Release From Custody – Timeliness
State v. Patrick J. Fahey, 2005 WI App 171
Issue: Whether requested alternative testing at agency expense is deemed a “request” within § 343.305(5)(a) where made after driver was released from custody, left police department, and then returned about 15 minutes later, ¶7.
Holding:
¶14 … The State, in keeping with the circuit court’s decision, argues that it is unreasonable to think that the legislature meant to hold open the time period for a request beyond when a suspect is released from custody.
Enhancer — TIS-I
State v. Kent Kleven, 2005 WI App 66
For Kleven: Roberta A. Heckes
Issue/Holding: Where sentencing includes multiple enhancers, the court may identify the amount of confinement attributable to each enhancer, without violating the rule that an enhancer doesn’t support a separate sentence. ¶¶16-18. (The court adds, however, ¶18 n. 4, that the “better practice” is to avoid “allocating any portions of the confinement imposed among the base offense and enhancers.”)
Issue/Holding: Maximum confinement for TIS-I attempt to commit a classified felony is one-half the maximum confinement for the completed crime,
Due Process – Sex Offender Registration Juvenile – Constitutionality
State v. Jeremy P., 2005 WI App 13
For Jeremy P.: Adam B. Stephens
Issue/Holding: Because mandatory sex offender registration for certain juvenile offenders, §§ 938.34(15m)(bm) and 301.45(1m), is not punishment it does not violate procedural due process, ¶¶8-15. The court’s retention of discretion in administering registration defeats a substantive due process claim, ¶22. An equal protection argument, based on claim of children-as-supsect-class, is also rejected, ¶¶23-29.