On Point: D. Type of punishment

State v. Timothy D. Russell, 2014AP451-CR, District 1, 12/23/14 (not recommended for publication); case activity

When sentencing Russell for a series of thefts committed while he was deputy chief of staff to the Milwaukee County Executive, the circuit court referred to the charge to which Russell pled as “misconduct in public office, … not a theft as I think has been reported.” (¶8). The court of appeals holds that the sentencing transcript, when read as a whole, makes it clear that the circuit court did not erroneously believe it was sentencing Russell for the offense of misconduct in public office, but merely intended to note that Russell committed the offense of theft by virtue of his public position as deputy chief of staff to the Milwaukee County Executive.

State v. Leopoldo R. Salas Gayton, 2013AP646-CR, District 1, 10/7/14 (not recommended for publication), petition for review granted 11/4/15, affirmed, 2016 WI 58; case activity

The sentencing court didn’t erroneously exercise its discretion by relying in part on Gayton’s immigration status or by failing to explain its reasons for imposing the maximum term of initial confinement and the DNA surcharge.

State v. Patrick L. Hibl, 2013AP2723-CR, District 2, 6/4/14 (1-judge; ineligible for publication); case activity

Rejecting challenges to a restitution order, the court of appeals holds that the evidence in the record established a nexus between the crime Hibl was convicted of and the victim’s loss and that the circuit court took account of his ability to pay.

Robers v. United States, USSC No. 12-9012, 5/5/14, affirming United States v. Robers, 698 F.3d 937 (7th Cir. 2012); Scotusblog page (includes links to briefs and case commentary); On Point’s previous coverage.

Where a defendant is ordered to pay restitution under the Mandatory Victim Restitution Act (MVRA), the amount of restitution may be reduced by the value of “any part of the property that is returned” to the victim. The Supreme Court holds that a a defendant convicted of fraudulently obtaining a loan does not return part of the property to the defrauded lender when the lender takes title to the collateral securing the loan. Therefore, restitution is not reduced by the fair market value of the collateral at the time the lender took title.

Paroline v. United States, USSC No. 12-8561, 4/23/14, vacating and remanding In re Amy Unknown, 701 F.3d 749; Scotusblog page (includes links to the briefs and case commentary)

Resolving a split among federal circuit courts about how to determine restitution in child pornography cases under 18 U.S.C. § 2259, the Supreme Court holds that where a defendant possessed images of a victim who suffered losses from the continuing traffic in the images, but it is impossible to trace a particular amount of the losses to the individual defendant, a court should order restitution “in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” (Slip op. at 21).

State v. Jack E. Hoppe, 2014 WI App 51; case activity

A sentencing court may not prohibit a defendant convicted of OWI from driving a motor vehicle as a condition of extended supervision when the length of extended supervision exceeds the maximum period for revoking operating privileges set by § 343.30.

State v. Paul J. Williquette, 2013AP2127-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

What happens when a restitution award is twice the victim’s actual repair costs? In this case, not much. Williquette was ordered to pay restitution based upon State-submitted repair estimates.  Later, he moved for sentence modification claiming the actual (and lesser) amount the victim paid for repairs was a “new factor” justifying a reduced restitution award.  The COA held that by not challenging the estimates at sentencing, Williquette stipulated to their reasonableness and that the actual repair costs did not amount to a “new factor.”

State v. Ryan P. O’Boyle, 2013AP1004-CR, District 1, 2/4/14; court of appeals decision (1-judge; ineligible for publication); case activity

O’Boyle’ claimed his lawyer was ineffective for failing to move to strike the references in the complaint to “domestic abuse” because that isn’t a separate, stand-alone charge. He also claimed counsel failed to explain that the disorderly conduct count to which O’Boyle entered a plea was charged as an act of domestic abuse under § 968.075(1)(a).

Village of Grafton v. Eric L. Seatz, 2014 WI App 23; case activity

“The issue presented is straightforward:  Must a court order the installation of an ignition interlock device when a defendant is convicted of first-offense operating while intoxicated (OWI) and also has a prior conviction for an OWI offense?  The answer is yes.” (¶1).

Seatz was arrested for OWI. His blood alcohol content was .13.

State v. Thomas G. Felski, 2013AP1796-CR, District 2, 1/29/14; court of appeals decision (1-judge; ineligible for publication); case activity

For a second time the court of appeals reverses a restitution order and remands the case for the circuit court to explain how it arrived at the restitution figure.

Felski was convicted of performing home improvement services without a contract. In his first appeal, the court of appeals upheld the determination that Felski was liable for restitution,