On Point blog, page 6 of 26
Restitution awards based on victims’ say-so affirmed
State v. Damien Farold Robinson, 2018AP259-CR, District 1, 10/30/18 (not recommended for publication); case activity (including briefs)
Robinson challenges some of the restitution ordered to reimburse two burglary victims for repairing the damage caused by Robinson’s forcible entry. The court rejects his arguments that there was insufficient evidence about the costs of repair and the reasonableness of the costs.
Challenges re right to self-representation and domestic abuse assessment fail on appeal
State v. Sandra D. Solomon, 2018AP298-CR, 9/25/18, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
Solomon sought plea withdrawal arguing that the circuit court had denied her request to represent herself and insisted on proceeding with the scheduled trial date, so her newly-retained lawyer was not prepared to defend her. The court of appeals held that her invocation of this right was not clear and unequivocal. It also held that the domestic abuse assessment clearly applied to this case.
Bomb scare adjudication upheld, but restitution order reversed in part
State v. J.P., 2017AP1905, District 1, 9/5/18 (one-judge decision; ineligible for publication); case activity
J.P. was adjudicated delinquent for calling in two bomb scares to his high school. The court of appeals rejects his claims that the police lacked probable cause to arrest him and unlawfully searched his phone and that his confession was involuntary. However, the court agrees with J.P. that part of the restitution order is invalid.
Plea hearing courts don’t have to inform defendants about the mandatory DNA surcharge
State v. Arthur Allen Freiboth, 2018 WI App 46; case activity (including briefs)
In light of the Wisconsin Supreme Court’s May 2018 decisions in State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, and State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, the court of appeals now holds:
Defendant not entitled to sentence credit for charges dismissed but not read in
State v. Demario D. Fleming, 2017AP1851-CR, District 1, 7/17/18 (not recommended for publication); case activity (including briefs)
Applying its recent decision in State v. Piggue, 2016 WI App 13, 366 Wis. 2d 605, 875 N.W.2d 663, the court of appeals rejects Fleming’s request for sentence credit for time he spent in custody on charges that were dismissed, but not read in, as part of a plea agreement.
DOC may collect restitution from inmate even after a sentence has expired
State ex rel. Drazen Markovic v. Jon E. Litscher, 2018 WI App 44; case activity (including briefs)
The Department of Corrections has the authority to take certain funds from an inmate’s account to pay the restitution ordered in a case even though the inmate has finished serving the sentence in that case.
SCOW: Circuit courts can’t waive the DNA surcharge for crimes committed after January 1, 2014
State v. Michael L. Cox, 2018 WI 67, 6/15/18, on certification from the court of appeals; case activity (including briefs)
For years the DNA surcharge statute said that a court “shall” impose a surcharge on certain felony sex offenses and “may” impose a surcharge on any other felony offense. See § 973.046 (1g) and (1r) (2011-12). That changed in 2013 Wis. Act 20, §§ 2353 and 2354, which amended the statute to say a court “shall” impose a surcharge for all criminal convictions, including misdemeanors, committed on or after January 1, 2014. A unanimous supreme court holds that in making this change the legislature intended to eliminate a circuit court’s discretion to waive the surcharge by requiring the surcharge to be imposed in every case.
Does Gallion apply to a trial court’s decision to order sex offender registration?
State v. Timothy L. Landry, 2017AP1739-CR, 6/6/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
Landry pled to 2 counts of 4th-degree sexual assault and was ordered to comply with §973.048(1m)(a), Wisconsin’s sex offender registry. On appeal, he argued that the trial court had not made the necessary findings or explained its decision adequately a la Gallion. He lost.
Inconsistent (unpublished) decisions on what’s required for domestic abuse surcharge
State v. Anthony Iven Jones, A/K/A Hashim Hasan, 2017AP364, 6/5/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
A jury found Jones guilty of bail jumping. one of his bond conditions had been that he stay 500 feet away from his former wife. He made a threatening phone call to her and was discovered by a police officer to be “approximately 92 feet away” from her house. He first claims there was insufficient evidence to support his conviction, but the court does not agree, based on the essential facts just noted. (¶12).
SCOW overrules Elward and Radaj; mandatory DNA surcharge doesn’t violate ex post facto clause
State v. Jamal L. Williams, 2016AP883-CR, 2018 WI 59, 5/30/18, reversing in part, a published court of appeals opinion, 2017 WI App 46, case activity (including briefs)
In a 5-0 opinion (Roggensack and A.W. Bradley did not participate) SCOW overruled two court of appeals decisions, State v. Elward and State v. Radaj, which had held that the §973.046 mandatory DNA surcharge violated the Ex Post Facto Clauses of the state and federal constitutions. SCOW delved into the reasoning of both cases and found it “faulty.” It further held that a circuit court may consider a defendant’s opposition to paying restitution as part of his character or lack of remorse when choosing a sentence.