On Point: E. Enhancers

Question Presented:

The California Burglary Statute Section 459 does not require as an element that a burglar “enter or remain unlawfully in a building”. The Ninth Circuit held that it could determine whether this “missing element” was shown to have been proven by applying the modified categorical approach.

The issues presented are as follows:

1- Whether the Ninth Circuit’s ruling in United States v.

State v. Lavon J. Ash, Sr., 2012AP381-CR, District 2, 8/15/12

court of appeals decision (1-judge, ineligible for publication); case activity

Ash was sentenced to concurrent terms of one-year initial confinement, one-year extended supervision on two misdemeanor counts, a sentence structure he successfully challenges. Incompatible statutory mandates lie at the heart of the problem. In the first instance, § 973.01(1)  requires bifurcated misdemeanor sentences, which simply isn’t possible for unenhanced misdemeanors: a bifurcated sentence must be served in prison,

State v. Roshawn Smith, 2012 WI 91, reversing in part, affirming in part unpublished decision; case activity

Standard of Review: Sufficiency of Evidence 

¶29  We understand Smith’s central argument regarding the standard of review on the evidentiary question to be summed up in the proposition that a jury verdict of guilt[9] must be reversed on appeal if “[t]he inferences that may be drawn from the circumstantial evidence are as consistent with innocence as with guilt.” 

Southern Union Company v. United States, USSC No. 11-94, 6/21/12, reversing 630 F.3d 17 (1st Cir 2010)

Criminal fines, no less than length of imprisonment, come within the “Apprendi” doctrine, such that a fine beyond the maximum statutory amount must be based on facts decided by the jury. Southern Union was tried for violating environmental laws carrying a fine of up to $50,000 per day in violation.

on review of unpublished court of appeals decision; for Gracia: Tracey A. Wood; case activity

Warrantless Entry – Community Caretaker / OWI Enhancer – Collateral Attack 

Issues (Composed by On Point): 

Whether the community caretaker doctrine supported entry into Gracia’s bedroom after the police linked him to a serious traffic accident.

Whether Gracia’s waiver of counsel in a prior OWI conviction used as a penalty enhancer was valid,

State v. David D. Austin, 2011AP1042, District 1, 4/10/12

court of appeals decision (1-judge, not for publication); pro se; case activity

Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:

¶12      Austin submits that the wording of Wis.

State v. Traci L. Scott, 2011AP2115-CR, District 2, 3/21/12

court of appeals decision (1-judge, not for publication); for Scott: Rex Anderegg; case activity

The court rejects Scott’s challenge to a prior OWI conviction, concluding that she aware of the range of punishments, dangers of self-representation, etc. General test recited:

¶2        A defendant facing an enhanced sentence based on a prior conviction may only collaterally attack that prior conviction based on the denial of the constitutional right to counsel.  

State v. Michael A. Imbruglia, 2011AP1373-CR, District 2, 2/8/12

court of appeals decision (1-judge, not for publication); for Imbruglia: Rick Ramirez; case activity

In circuit court, Imbruglia successfully challenged use of a Colorado conviction as an OWI enhancer (on the ground that statute isn’t “substantially similar” to Wisconsin’s). However, after another OWI arrest the very next day, the State reasserted that same conviction to enhance the new charge.

State v. Christopher J. Holan, 2011AP1717-CR, District 3, 1/31/12

court of appeals decision (1-judge, not for publication); for Holan: Martha K. Askins; case activity

Holan’s admission to his prior felony conviction satisfied § 973.12(1); the court rejects his argument that the record must show his knowledge that  he faced increased punishment because of the prior conviction:

¶10      Holan’s reliance on Rachwal and Goldstein is misplaced.  

court of appeals decision (1-judge, not for publication); for Gracia: Tracey A. Wood; case activity; petition for review granted 5/14/12

Warrantless Entry – Community Caretaker 

Entry into Gracia’s bedroom by police, who had linked him to a serious traffic accident, was justified by the community caretaker doctrine; State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242,