On Point blog, page 6 of 17
Sentencing – Applicability of TIS to Crime not Completed until Advent of TIS II
State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate
Issue: Whether an offense which was partially committed during the TIS-I regime but not completed until advent of TIS-II comes under the former or latter sentencing regime.
Holding:
¶11 Thums had not committed the crime of stalking with a dangerous weapon during TIS-I. He therefore did not become subject to the TIS-I penalties during TIS-I.
Review – Exercise of Discretion – Generally
State v. Jack W. Klubertanz, 2006 WI App 71, PFR filed 4/14/06
For Klubertanz: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶21 We conclude that the circuit court here properly exercised its sentencing discretion under the standards set forth in Gallion. The court identified the objectives it sought to achieve with the sentence it imposed: punishing Klubertanz, protecting the public,
Sentencing – Review – Factors – Gallion – Generally
State v. Chad W. Ziegler, 2006 WI App 49, PFR filed 3/13/06
For Ziegler: Kenneth P. Casey, UW Law School
Issue/Holding:
¶23 The principal objectives of a sentence include, but are not limited to, the protection of the community, the punishment of the defendant, rehabilitation of the defendant, and deterrence to others. Id., ¶40. A sentencing court should indicate the general objectives of greatest importance and explain how,
Sentencing Review – Factors – TIS – Probation as 1st Alternative
State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose
Issue/Holding:
¶47 Harvey correctly states Gallion’s teaching that probation should be considered as the first sentencing alternative. Gallion, 270 Wis. 2d 535, ¶25. Here, the trial court expressly addressed probation. … In sum, the court concluded that probation would unduly depreciate the offense. …
¶48 Probation should be the disposition unless confinement is necessary to protect the public,
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 discussion of the three primary sentencing factors was adequate, though the court did not explicitly identify those factors, ¶25.
Sentencing Review – Articulation of Factors by Trial Court
State v. Jeremy D. Russ, 2006 WI App 9
For Russ: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶14 This court observes a strong policy of deferring to the sentencing discretion of a trial court, presuming the sentence to be reasonable unless the defendant can demonstrate from the record that the court acted unreasonably. State v. Mosley, 201 Wis. 2d 36,
Counsel – Conflict of Interest – Waiver of Conflict by Defendant, Generally
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding: A trial court may, but is not required to, override a defendant’s waiver of the right to conflict-free representation, and in this instance the trial court properly questioned the defendant and ascertained that he was knowingly and voluntarily waiving that right:
¶13 Contrary to Dion’s assertion,
Conflict between (Indisputably) Unambiguous Oral Pronouncement and Written Judgment
State v. Carla L. Oglesby, 2006 WI App 95
For Oglesby: Timothy T. Kay
Issue/Holding:
¶15 … [T]he trial court’s oral pronouncement imposed a two-year term of probation in 2004CM401. Despite this clear and unequivocal statement, the judgment of conviction recited a probation term of six years.
¶16 When an unambiguous oral pronouncement at sentencing conflicts with an equally unambiguous pronouncement in the judgment of conviction,
Conflict between Ambiguous Oral Pronouncement and Written Judgment – Sentencing Court’s Silence on Matter of Consecutive or Concurrent – Determination of Sentencing Court’s Intent, Presumption of Concurrency
State v. Carla L. Oglesby, 2006 WI App 95
For Oglesby: Timothy T. Kay
Issue/Holding: The test for statutory construction – whether the language is capable of being understood by reasonably informed persons in different ways – applies to determination of a sentencing court’s intent; where the parties staked out different sentencing positions but the sentencing court was silent as to whether multiple terms were to be concurrent or consecutive,
Counsel – Conflict of Interest – Waiver of Conflict by Defendant, Amounts to Waiver of Claim of Deficient Performance
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding:
¶15 Dion contends that he was denied effective assistance of counsel because his counsel’s law firm also represented his co-defendant brother Douglas. … While there is no Wisconsin case law directly on point, the State cites federal cases holding that a defendant cannot assert ineffective assistance of counsel based on a conflict of interest when the defendant validly waived the right to conflict-free representation.