On Point blog, page 4 of 17
Constitutionality of Ch. 980 – Absence of Proof of “Imminent” Danger
State v. Terry L. Olson, 2006 WI App 32, PFR filed 3/16
For Olson: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether ch. 980 is unconstitutional because the SVP definition of “dangerousness” is not linked to imminent risk.
Holding:
¶5 We deem Olson’s reliance on Lessard misplaced. In 2002, our own supreme court considered a challenge to Wis.
SVP – Post-Disposition – Discharge Petition – Probable Cause Hearing, § 980.09(2) (2001-02)
State v. Robert L. Kruse, 2006 WI App 179, PFR filed 9/11/06
For Kruse: Donald T. Lang, SPD, Madison Appellate
Issue/Holding1:
¶2 We agree with Kruse that at a probable cause hearing under Wis. Stat. §980.09(2)(a), the role of the circuit court is to determine whether there is plausible testimony or evidence that, if believed, would establish probable cause that the petitioner is no longer a sexually violent person.
SVP – Post-Disposition – Discharge Petition – Probable Cause Hearing, § 980.09(2)
State v. Christopher L. Combs, 2006 WI App 137, PFR filed, 7/20/06
For Combs: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether, on a petition for discharge of an SVP commitment, § 980.09(2)(b), the trial court can refuse to hold a hearing where, although the court-appointed expert concludes that the person was not sufficiently predisposed to sexual violence to meet the definition of a sexually violent person,
SVP – Post-Disposition – Petition for Discharge Procedure, § 980.09(2)(a) (2006) – Timely Probable Cause Hearing, Due Process
State v. Deryl B. Beyer, 2006 WI 2, on certification; prior history: 2001 WI App 167, cert. denied, Beyer v. Wisconsin, 537 U.S. 1210 (2003)
For Beyer: Donald T. Lang, SPD, Madison Appellate
Issue1: Whether due process was violated by delay of over 22 months between the time the first annual periodic examination report was provided to the circuit court under § 980.07 and the circuit court’s probable cause hearing under § 980.09(2)(a).
Sentence — Modification — New Factor: Parole Policy
State v. Wayne Delaney, 2006 WI App 37
Pro se
Issue/Holding: Governor Thompson’s 1994 letter to the DOC exhorting pursuit of all available remedies to block release of (pre-TIS) violent offenders reaching their mandatory release date is not a new factor:
¶9 The existence of a new factor must be shown by clear and convincing evidence. Franklin, 148 Wis. 2d at 8-9.
Sentencing – Review — Articulation of Factors — Defendant’s Character
State v. Donald Odom, 2006 WI App 145
For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial
Issue/Holding: Trial court’s acknowledgement that Odom had been a productive citizen but that his numerous crimes “stood in stark contrast to that past” adequately accounted for Odom’s “positive attributes,” ¶24.
Sentencing – Factors: Guidelines
State v. Donald Odom, 2006 WI App 145
For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial
Issue/Holding: A trial court is not required to follow the sentencing guidelines, but only to explain a departure; the trial court’s explanation for departure (defendant’s lengthy record and reoffending upon release from confinement) was an adequate explanation, ¶26.
Sentencing – Review – Accurate Information – Television Interview of Defendant, Relied on by Court
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether the sentencing court’s reliance on a television interview of the defendant, which led the court to criticize the defendant as “self-serving” rather than remorseful, violated the due process right to be sentenced on accurate information.
Holding:
¶24 We address first Lynch’s argument that the court had an obligation to give him advance notice that it was going to consider the television interview at sentencing.
Sentencing – Review — Inaccurate Information – Review of Confidential Juvenile Records
State v. Jeris M. Moore, 2006 WI App 162
For Moore : Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶8 The issue in this case is whether the trial court erred when it denied Moore ’s motion without an in camera review of the confidential juvenile records. We conclude that the trial court should have conducted an in camerareview to determine whether the contents of those records rendered the resulting sentence one that was based on inaccurate information.
Confrontation – Bias: Limitation on Cross-Examination
State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau
Issue/Holding: Defense cross-examination of a principal State’s witness was impermissibly curtailed when the trial court abruptly ended inquiry into whether the witness had threatened to cause the defendant (her ex-husband) “trouble” following his remarriage, where:
- The witness testified only with the aid of a translator and had obvious difficulty answering questions (“a witness’s comprehension affects our analysis of whether a trial court can cut-off cross-examination prematurely.