On Point blog, page 4 of 9
Sentencing Review – Factors – Proof: Prior Acquittal
State v. Anthony L. Prineas, 2009 WI App 28
For Prineas: Raymond M. Dall’osto, Kathryn A. Keppel
Issue/Holding: The sentencing court properly considered a count for which Prineas was acquitted, as well as uncharged, “sexually inappropriate behavior,” ¶28, citing State v. David Arredondo, 2004 WI App 7.
Sentencing Review – Factors – Seriousness of Offense – Weight Left to Trial Court
State v. Corey E. Young, 2009 WI App 22, PFR filed 1/7/09
For Young: Jeffrey W. Jensen
Issue/Holding: The trial court, in sentencing for first-degree intentional homicide, sufficiently explained why it was assigning extended supervision eligibility of 50 years’ confinement (rather than the 40 recommended by the State). Weight given each sentencing factor is committed to the trial court’s discretion, ¶24; the sentencing court in this instance reached its conclusion only after weighing a number of sentencing factors,
Sentencing Review – Factors – Proof of (Other Offenses)
State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue/Holding: The sentencing court may consider uncharged and unproven offenses, ¶36; id n. 20:
State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341. See also State v. McQuay , 154 Wis. 2d 116,
Sentencing – Factors – Harm to Victim: Threats While Case Pending, Inability to Attribute to Defendant
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro
Issue: Whether threats made to the victims, while the prosecution was pending, to try to dissuade them from testifying were relevant to sentence despite absence of evidence linking threats to the defendant himself.
Holding:
¶41 The court process is a predictable consequence of conduct which results in a criminal charge.
Sentencing – Review – Articulation of Factors – Ruminations about Defendant’s Mental Health
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau
Issue/Holding: The sentencing court’s observations to the effect that the defendant was “a sick man” didn’t amount to “unsupported findings about his mental health:
¶14 At Sherman’s postconviction hearing, the court indicated that its comments did not reflect medical diagnoses, but were instead common sense observations based upon facts in the record.
Sentencing – Review – Articulation of Factors – Consideration of Sentences in Other, Similar Cases (Individualized Sentencing)
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau
Issue/Holding:
¶15 Sherman claims the only evidence about his mental health came from his expert, Dr. Gerald Wellens. Sherman claims the court failed to consider his expert’s opinion. However, at sentencing, the court expressly considered Wellens’ opinion. The court noted that Wellens only examined Sherman for a short period of time and that his perceptions of Sherman were plainly outweighed by contradictory testimony of people who were more familiar with Sherman.
Sentencing Guidelines – Failure to Consider – Harmless, Where Sentence Concurrent to Other, Unchallenged Sentence
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau
Issue/Holding: Sentencing failure to consider applicable guidelines, § 973.017(2)(a), was harmless error, at least where the controlling sentence was untainted by the error:
¶9 We conclude that the circuit court’s failure to consider the sentencing guidelines for the two Wis. Stat. § 948.02(2) counts was harmless error.
Sentencing Guidelines, § 973.017(2)(a) – Reviewability – Mandated Consideration
State v. Vincent T. Grady, 2007 WI 81, reconsideration denied, 2007 WI 125, affirming 2006 WI App 188
For Grady: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶16 We first address whether Wis. Stat. § 973.017(10) precludes appellate review of a circuit court’s consideration of an applicable sentencing guideline pursuant to Wis. Stat. § 973.017(2)(a).
Presentence Report — Bias of Author: Spouse of Another Agent Concurrently Responsible for Defendant’s Supervision
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: The rule of State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997) (conflict of interest where PSI author married to defendant’s prosecutor) does not extend to situation where PSI author is married to another probation agent and both are jointly supervising the defendant:
¶5 We do not believe that the same inherent bias exists in the relationship between two supervising probation agents.
Presentence Report – Miranda Warnings
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: Thexton wasn’t entitled to Miranda warnings “at the time the PSI was being prepared”:
¶8 Thexton also claims that Streekstra violated his Fifth Amendment rights when he interviewed him during the investigation. Thexton claims that Streekstra used the prior PSI as a basis for questioning him,