On Point blog, page 122 of 263
Juvenile’s homicide sentence valid under Graham, Miller, and Montgomery
State v. Nathan J. Paape, 2015AP2462-CR, District 2, 6/28/17 (not recommended for publication); case activity (including briefs)
Paape and a co-defendant, Antonio Barbeau, were convicted as adults for a first degree intentional homicide they committed when they were 13 years old. Both received the mandatory life sentence and both were granted eligibility under § 973.014(1g)(a)2. to petition for release to extended supervision under § 302.114(5), Paape after 30 years, Barbeau after about 35 years. Both argued their sentences were invalid under Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). The court of appeals rejected Barbeau’s arguments last year, State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, and it now rejects Paape’s arguments.
Court of appeals rejects bid for new trial based on new evidence, IAC
State v. Matthew Ray Taylor, 2016AP682-CR, District 1, 6/27/17 (not recommended for publication); case activity (including briefs)
Taylor argues he should get a new trial based on newly discovered evidence and ineffective assistance of counsel. The court of appeals rejects his claims.
Defendant fails to show new factor justifying sentencing modification
State v. Dimitri C. Boone, 2016AP918-CR, District 1, 6/27/17 (not recommended for publication); case activity (including briefs)
Boone sought a “new factor” sentence modification based on alleged inaccuracies in the report of the presentence investigation (PSI). The court of appeals holds that Boone failed to show the information in the PSI was inaccurate, failed to show new information, or failed to show any of the information was highly relevant to the circuit court’s sentencing decision.
DOC erred in recalculating string of consecutive sentences after one was vacated
State v. Steven F. Zastrow, 2015AP2182-CRAC, District 3, 6/27/17 (not recommended for publication); case activity (including briefs)
Zastrow was serving a string of four consecutive prison sentences, the first imposed in June 2006 in Winnebago County, the other three imposed in October 2006 in Outagamie County. In 2008 the Winnebago sentence was vacated and Zastrow was resentenced to imposed and stayed prison time and placed on probation consecutive to the Outagamie sentences. DOC thereafter recalculated the release dates on the remaining three Outagamie sentences, and decided those sentences started running in 2008, when the Winnebago sentence was vacated. (¶¶2-4). Wrong, says the court of appeals. Those sentences began back in October 2006, on the date they were imposed.
Officer had probable cause to administer PBT
State v. Angelo M. Reynolds, 2016AP420-CR, District 4, 6/22/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Police had sufficient probable cause to request that Reynolds provide a preliminary breath test under § 343.303.
Warrant to take blood allows testing of blood
State v. Benjamin Schneller, 2016AP2474, 6/22/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Benjamin Schneller was arrested for OWI and refused to submit to a blood draw, so the police got a warrant and took the blood anyway. He argues on appeal that the warrant only authorized the police to draw his blood, and that a separate warrant was required for them to test it.
Counsel deficient in allowing jury to see exhibit, but defense prejudiced on just 1 of 5 counts
State v. Lamont Donnell Sholar, 2016AP987, 6/20/17, District 1 (not recommended for publication), petition for review granted 10/17/17, affirmed, 2018 WI 53; case activity (including briefs)
Sholar was charged with 5 counts of sex trafficking and 1 count of sexual assault. At trial, defense counsel allowed “Exhibit 79”–a 181-page report containing the contents of Sholar’s cell phone, including 1,4000 text messages and photos of girls and women in suggestive poses, to go to the jury. The State concedes that defense counsel performed deficiently, but argued that Sholar was prejudiced only with respect to the sexual assault charge, not the sex trafficking charges. The court of appeals agreed.
Evidence that victim was shot exactly 1 year after defendant’s brother was shot and killed deemed admissible
State v. Tyshun DeMichael Young, 2016AP657-CR, 6/20/17, District 1; (not recommended for publication); case activity (including briefs)
A jury convicted Young of attempted 1st-degree intentional homicide and 1st degree recklessly-endangering safety with use of a dangerous weapon. On appeal, he argued that the trial court should not have permitted the jury to hear evidence that his younger brother was killed exactly one year prior to the date he allegedly shot the victims in this case.
Officer’s driving didn’t create reasonable suspicion to stop driver
Marquette County v. Matthew J. Owens, 2016AP2176, District 4, 6/15/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Owens argues that a police officer’s driving was so careless or unlawful that it required Owens to react in a way that created reasonable suspicion to stop him. Not so, says the court of appeals.
You can’t steal marital property, but you can criminally damage it
State v. Cynthia Hansen, 2016AP2114-CR, 6/14/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Hansen beat up a car that was marital property between her and her wife. She pled to criminal damage to property of another; on appeal she claims, inventively, that the theft statute gave her the right to do just as she did. The court of appeals disagrees.