On Point: B. Trial court discretion

State v. Courtney E. Sobonya, 2015 WI App 86; case activity (including briefs)

Sobonya launched a creative challenge to the denial of her §973.015 request for expungement.  The court had held that while she would benefit from expungement, society would be harmed by the reduced deterrent effect of her sentence.  So Sobonya moved for sentence modification based on an expert report showing that the public safety is best served by removing the barriers that convicted offenders face when trying to reintegrate into society.

State v. Sharod D. Weaver, 2015AP170-CR, District 3, 8/31/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Though the sentencing court made comments suggesting it mistakenly believed the OWI sentencing guidelines “don’t consider the four primary sentencing factors,” these comments don’t show the sentencing court actually believed that; rather, the court of appeals concludes, the sentencing court was saying that following the guidelines was not appropriate in Weaver’s case. Thus, the sentencing court didn’t misuse its discretion.

State v. Steven Ray Gaddis, 2015AP130-CR, District 1, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Even the sentencing judge admitted his sentencing explanation “could have been more extensive” (¶10). But, hey, it was good enough for government work.

State v. Jesse L. Herrmann, 2015 WI 84, 7/15/15, afffirming an unpublished per curiam court of appeals decision; case activity (including briefs)

All seven justices agree Herrmann’s due process right to an impartial judge wasn’t violated in this case, as the sentencing judge’s remarks didn’t establish the judge was was objectively biased against Herrmann. Two separate concurrences consisting of four justices, however, express displeasure with (or attempt to limit, at least with respect to recusal) the objective bias test as established in previous Wisconsin and U.S. Supreme Court cases.

State v. John Eddie Farmer, Sr., 2014AP2623-CR, 6/30/15, District 1 (one-judge opinion, ineligible for publication); click here for docket and briefs

Defense lawyers encounter this problem too often. The circuit court inadequately explains the reasons for the sentence it imposed and then shores up its rationale at the postconviction stage. This decision holds that a circuit court, which failed to mention any sentencing objectives, nevertheless met Gallion’s “bare minimum requirements.” And even if it hadn’t, it wouldn’t matter because the court of appeals could search the record for reasons to affirm the sentence. Slip op. ¶14.

State v. Isaiah N. Triggs, 2014AP204-CR, District 1, 10/28/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for waiving a preliminary hearing in Triggs’s homicide prosecution or for failing to move to suppress Triggs’s confession. Further, the circuit court’s plea colloquy with Triggs was not defective and the circuit court didn’t erroneously exercise its sentencing discretion.

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.

On review of a per curiam unpublished court of appeals decision; case activity

Issue (composed by On Point)

Did the circuit court violate Jesse Herrmann’s due process right to an impartial judge by exhibiting objective bias in sentencing Herrmann?

State v. Bryanntton A. Brown, 2013AP1332-CR, District 1, 6/24/14 (not recommended for publication); case activity

Trial counsel was not ineffective for failing to present certain evidence that the complainant in Brown’s child sexual assault prosecution may have obtained her sexual knowledge from watching TV and movies and talking to her older sister. Nor was trial counsel ineffective for not taking steps to mitigate the impact of a letter Brown purportedly wrote to Carson, a fellow jail inmate, in which Brown admitted the charges. Finally, the circuit court didn’t erroneously exercise its sentencing discretion.

State v. Venceremos Crump, 2013AP2163-CR, District 1, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court articulated its reasons for the sentence imposed on Crump as required by State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197, in light of the court’s comments in its order denying Crump’s postconviction motion, where it explicitly addressed the three primary sentencing factors and applied those factors to the facts of Crump’s case.