On Point blog, page 13 of 19
Reasonable Suspicion – Traffic Stop; OWI – Habitual Offender – Collateral Attack
State v. Randall L. Wegener, 2010AP452-CR, District 1, 8/18/10
court of appeals decision (1-judge, not for publication); for Wegener: Kirk B. Obear; BiC; Resp.
Reasonable Suspicion – Traffic Stop
Inclement winter weather didn’t obviate the need to stay within the proper lane, such that crossing the center line, even briefly a few times, provided reasonable suspicion to perform a traffic stop.
¶6 Wegener argues that Fabry did not have reasonable suspicion to conduct a traffic stop because he was driving appropriately for part of the time he was followed and blames his lack of control of his vehicle on the snowy weather conditions.
Federal Sentence Enhancer vs. Offense Element
U.S. v. O’Brien, USSC No. 08-1569, 5/24/10
§ 924(c)(1)(B)(ii), which exposes a person convicted of possessing, using or carrying a machinegun during certain federal crimes to a mandatory minimum sentence of 30 years is an offense element subject to proof beyond reasonable doubt at trial rather than a penalty enhancer provable by mere preponderance of the evidence at sentencing.
The border between offense element and sentence enhancer remains indistinct at crucial junctures.
State v. Gerard W. Carter, 2008AP3144-CR, Wis SCt review, 3/9/10
decision below: 2009 WI App 156; for Carter: Craig M. Kuhary
Issues:
Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)?
What methodology are trial courts to employ in determining whether to count out-of-state OWI-related offenses for sentence enhancement purposes under Wis. Stat. § 343.307?
Johnson v. U.S., USSC No. 08-6925
Armed Career Criminal Act
State conviction for battery, which requires only intentional physical contact no matter how slight, doesn’t qualify as “violent” under federal Armed Career Criminal Act, 18 U. S. C. §922(g)(1).
There appears to be no Wisconsin equivalent to the ACCA, which severely limits the utility of this case for state practice.
State v. Stanley W. Puchacz, 2010 WI App 30
court of appeals decision; for Puchacz: William M. Hayes
Resp Br
OWI Enhancer, § 346.65(2) – Out-of-State Conviction
Michigan convictions for driving while visibly impaired may be counted as Wisconsin OWI priors, given “broad interpretation and application of the final phrase in Wis. Stat. § 343.307(1)(d) and the public policy supporting our drunk driving laws,” ¶¶12-13.
Traffic Stop – Deviating from Center Line, § 346.05
Crossing center line,
Enhancer – Proof: Trial (on Guilt) – “Must be withheld from jury’s knowledge”
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: Evidence related to a penalty enhancer (such as a prior conviction in support of habitual criminality) is relevant only to sentence and “must be withheld from the jury’s knowledge,” ¶19, quoting Mulkovich v. State, 73 Wis. 2d 464,
Enhancer – § 939.62(2m)(d), Persistent Offender – “Prior” Strike
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1st strike’s conviction date precede the 2nd strike’s violation date. Although Long’s two prior strikes occurred before the current felony,
Enhancers — § 939.632, School Zone — Constitutionality
State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner
Issue/Holding:
¶81 We conclude that the school zone penalty enhancer is not unconstitutional as applied to Quintana. The legislature has sought to increase the penalty for those who commit violent crimes within 1,000 feet of “school premises.”
Enhancer – Apprendi Right to Jury Trial & 5-Year Limitation Period
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
Issue: Whether, on a § 939.62(2) “prior-conviction” penalty enhancer, the defendant is entitled to jury resolution that the conviction was in fact within 5 years of commission of the present offense.
Holding:
¶52 … (W)hen Shepard and Apprendi are read together,
Enhancer – Proof: Timing (“Post-Trial”)
State v. Shane P. Kashney, 2008 WI App 164
For Kashney: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment).
¶1 In State v.