On Point: C. Factors

State v. Westley D. Whitaker, 2020AP29-CR, petition for review of a published decision of the court of appeals granted 6/16/21; case activity (including briefs)

Issues Presented (from the PFR and supreme court order granting review)

1. Does it violate the First and Fourteenth Amendments and Article I, Section 18 of the Wisconsin Constitution to consider a defendant’s religious identity and impose a sentence intended to deter crime solely within his religious community?
2. If a sentencing court may consider a defendant’s religious association to deter other members of a religious community, does the “reliable nexus” test of State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994), and State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991), require congruity between the offense and the activity protected by the First Amendment?
3. Does the sentencing factor/objective of “protection of the public” permit the sentencing court to increase the sentence imposed on the defendant to send a message to an identified set of third parties that they should alter their behavior in the future, apart from generally being deterred from committing offenses like those committed by the defendant? (Added by the supreme court.)

State v. Octavia W. Dodson, 2018AP1476-CR, petition for review granted 1/20/21; case activity (including briefs)

Issue presented:

Did the sentencing court violate Dodson’s Second Amendment right to keep and bear arms by considering his status as a lawful gun owner an aggravating factor at sentencing?

State v. Deshawn Harold Jewell, 2017AP2503-CR, 10/30/18. District 1 (not recommended for publication); case activity (including briefs)

Jewell claims that he is innocent of armed robbery, so his identity was an issue at trial. During deliberations,  the jury asked the trial court for the “six pack” of pictures of people who appeared in the police photo array that the victim used to identify him. They also asked a question about how the photos were numbered. Jewell and his lawyer were not present and had no input into the answer.

State v. Marquis D. Walls, 2017AP1600-CR, District 1, 8/14/18 (not recommended for publication); case activity (including briefs)

The court of appeals rejects Walls’s argument that the circuit court violated his Fifth Amendment right against self-incrimination by pressuring him to admit guilt at sentencing and then used his failure to do so to impose a harsher sentence.

State v. Alphonso Lamont Willis, 2016AP791-CR, 7/18/17, District 1 (not recommended for publication); case activity (including briefs)

Alphonso Willis appeals his jury-trial conviction of first-degree intentional homicide and being a felon in possession of a firearm. He raises several claims for a new trial and also asks for resentencing. The court of appeals rejects the resentencing claim and some of his complaints of trial error, but concludes that he is entitled to a Machner hearing on his trial counsel’s (1) failure to present testimony that his boots did not match the prints left at the scene and (2) failure to introduce evidence that the homicide occurred at a time when he had already left the vicinity.

Travis Beckless v. United States, USSC No. 15-8544, 2017 WL 855781 (March 6, 2017), affirming Beckles v. United States, 616 Fed. Appx. 415 (11th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

The Supreme Court holds that provisions in the federal advisory sentencing guidelines are not subject to vagueness challenges under the Due Process Clause.

Buck v. Davis, USSC No. 15-8049, 2017 WL 685534 (February 22, 2017), reversing and remanding Buck v. Stephens, 623 Fed. Appx. 668 (5th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

Buck was found guilty of capital murder. Under state law, the jury could impose a death sentence only if it found Buck was likely to commit acts of violence in the future. At sentencing Buck’s attorney called Walter Quijano, a psychologist, to give an opinion on that issue. Though the psychologist testified Buck probably would not engage in violent conduct, he also said that race is one factor in assessing a person’s propensity for violence and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death. The Supreme Court, by a 7-to-2 vote, holds Buck’s attorney was ineffective.

State v. Patrick P. Haynes, 2015AP2176-CR, District 3, 8/16/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court didn’t erroneously exercise its sentencing discretion by exceeding the OWI guidelines when sentencing Haynes for OWI 3rd after his probation for the offense was revoked.

United States v. Billy J. Robinson, Jr., 7th Circuit Court of Appeal Case No. 15-2019, 2016 WL 3947808, 7/22/16

A federal district judge’s sentencing comments “strayed so far from the record” that the Seventh Circuit Court of Appeals “cannot trace the (legitimate) reasons for Robinson’s sentence” and therefore Robinson is entitled to resentencing.

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..