On Point: D. Type of punishment

Victor Ortiz, Jr. v. Kevin A. Carr, 2022 WI App 16; case activity (including briefs)

Attorneys Jason Luczak and Jorge Fragoso of Gimbel, Reilly, Geurin & Brown generously took this case pro bono. And now Jorge offers this guest post on their defense win:

Prison inmate (and hero to institutionalized persons) Victor Ortiz filed a petition for writ of certiorari seeking to limit the percentage of his income diverted for the payment of restitution. He won. The court of appeals ordered the Department of Corrections to limit its withholdings to 25% of Ortiz’s wages, half of what the Department sought.

On review of a court of appeals certification; affirmed 5/23/23; case activity (including briefs);

Issue:

Whether Wis. Stat. § 301.45(5)(b)1, which mandates lifetime sex-offender registration where a person has been convicted of a sex offense “on 2 or more separate occasions,” applies when a person’s only eligible convictions are entered on multiple guilty pleas in the same case.

State v. Corey Rector, 2020AP1213, certification filed 11/24/21; granted 2/16/22; affirmed 5/23/23; District 2; case activity (including briefs)

Issue (from the certification):

Whether the plain meaning of “separate occasions” in the sex-offender-registration statute means that the two convictions must have occurred at different times in two separate proceedings so that the qualifying convictions occurred sometime before a defendant is convicted in the current case. Stated otherwise, can the qualifying convictions occur simultaneously, as they did in this case, and as Wittrock and Hopkins held?

State v. Alex Stone Scott, 2021 WI App 84; case activity

This split, recommended-for-publication opinion, merits further review.  Scott drove M.S.’s truck without her permission and damaged it in the process.  Undamaged, the truck’s Kelly Bluebook value was $2,394. M.S. testified that she did not want to repair the truck, but the circuit court nevertheless awarded restitution based on the cost of repair: $5,486.37. It also found that Scott, who was mentally ill and living on a minuscule SSDI benefit, was able to pay it. Judges Grogan and Neubauer affirmed. Reilly dissented.

State v. Joseph L. Slater, 2021 WI App 88; case activity (including briefs)

Slater had a prison sentence imposed and then stayed in favor of probation. While on probation, he was arrested on three new charges. The department of corrections revoked his probation pretty quickly, but he didn’t get sent to prison: instead, he remained in the county jail for over three years while those new charges were pending. After a jury convicted him on on the new charges, he got three new concurrent prison sentences. The court of appeals now holds that Slater should be credited on those new sentences for the years he spent in jail awaiting trial.

State v. William C. MacDonald, 2020AP605-CR, 10/14/21, District 4 (not recommended for publication); case activity (including briefs)

Section 973.042(2) mandates a $500 surcharge for each image “associated with the crime” of possession of child pornography. The State charged MacDonald with 10 counts of possessing child porn. He pled “no contest” to a single charge. The State dismissed and read in 9 charges at sentencing. It then requested a $5,000 surcharge for the 10 images supporting the conceded and read-in charges. But it also requested (and received) $45,000 for MacDonald’s possession of an additional 90 images for which he was not charged.

State v. James A. Carroll, Jr., 2021AP375, 8/26/21, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Carroll was charged with second-degree sexual assault; he ultimately took a deal and pleaded to fourth-degree. The circuit court required him to register as a sex offender for 15 years after the end of his supervision. The court of appeals rejects Carroll’s claims that his counsel’s deficiencies led to the plea, and that new factors justified modifying his sentence to remove the registration requirement.

State v. Anthony M. Schmidt, 2021 WI 65, 6/18/21, on bypass from the court of appeals; case activity (including briefs)

“We also conclude that the child pornography surcharge applies to images of child pornography that form the basis of read-in charges of sexual exploitation of a child or possession of child pornography, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography.” (¶61). What does it mean for images to be “brought into relation with” an offense? What kind of inquiry is it? Factual? Legal? We don’t know, the partial dissent doesn’t know, and as it observes, the majority seems also not to know, as they refrain from addressing any facts but the ones before them. The most reliable SCOW imperative–upholding criminal sanctions–seems once again to have made the “law development” function an afterthought.

State v. Timothy D. Wright, 2020AP1578, 2/25/2021, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wright worked at Christmas Mountain. Over the course of a couple of months he allegedly directed several racist and threatening rants at colleagues, including threats to kill some of them. A supervisor eventually called the police, and Wright was fired and charged with four counts of disorderly conduct. He eventually pleaded to two with the other two read in. The circuit court ordered Wright to pay $14,755 in restitution to the corporation that owns Christmas Mountain at $100 per month. Wright argues this was improper for three reasons: because the corporation was not statutorily a “victim” of his conduct; because the claimed damages–the cost to hire armed guards after he was fired–were not “special damages … which could be recovered in a civil action”; and because the circuit court failed to consider his inability to pay.

State v. Michael A. Rakel, 2017AP2519, 2/17/21, District 1 (not recommended for publication); case activity (including briefs)

Michael Rakel was convicted of the 1st degree reckless homicide of Andre Taylor, who had a teenage daughter. Taylor was under a court order to pay child support to her. The court of appeals held that Rakel must now pay restitution in an amount equal to Taylor’s child support obligation.  However, the record was unclear about whether the mother of Taylor’s daughter was eligible to receive the restitution payment for the daughter. The court of appeals remanded the case for further proceedings on that issue.