On Point: E. Enhancers

Eau Claire County v. Duane D. Collier, 2016AP366, District 3, 2/22/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Collier’s belated challenge to his 1992 civil forfeiture judgment for OWI 1st offense is foreclosed by City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738.

The Supreme Court of Ohio recently answered that question “no.” State v. Hand, 2016 Ohio 5504, 2016 WL 4486068, 8/25/16. Hand rejects the majority position on this question, and instead adopts the position of the Ninth Circuit in United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), holding that the lack of a jury trial in juvenile proceedings under Ohio law means a juvenile adjudication isn’t a “prior conviction” that, under Appendi v.  New Jersey, 530 U.S. 466 (2000), can be used to enhance a sentence without having the jury determine the existence of the prior conviction.

Charles Walker v. Kathy Griffin, 7th Circuit Court of Appeals No. 15-2147, 2016 WL 4501988, 8/29/16

Walker’s lawyer on his direct state appeal decided to challenge the reasonableness of Walker’s sentence, but he didn’t raise an issue about the sufficiency of the evidence to support applying an habitual offender enhancer to Walker. That failure didn’t constitute ineffective assistance of appellate counsel.

State v. Ronald Marshall Jewett, 2015AP1014-CR, District 3, 8/30/16 (not recommended for publication); case activity (including briefs)

The question presented in this case is whether a certified driving record from the Wisconsin DOT is sufficient evidence to establish 2 prior OWI convictions in Minnesota–even though the original court records for those convictions no longer exist. The court of appeals says “yes.”

Walker Whatley v. Dushan Zatecky, 7th Circuit Court of Appeals No. 14-2534, 2016 WL 4269805, 8/15/16

The maximum penalty for Whatley’s drug possession conviction was dramatically increased—from 2-to-8 years to 20-to-50 years—under a now-repealed Indiana penalty enhancer for drug offenses committed within 1,000 feet of a “youth program center,” defined as a “building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs” for youth. (Sound familiar? Sure it does: see §§ 961.01(22) and 961.49(1m)(b)5.) On habeas review, the Seventh Circuit holds that the statute’s failure to provide an objective standard for determining what “regular” means makes the statute unconstitutionally vague, so Whatley is entitled to resentencing under the non-enhanced penalty scheme.

State v. Jason R. Cooper, 2016 WI App 63; case activity (including briefs)

While a conviction for a motor vehicle offense can’t be used to establish a defendant’s repeater status under § 939.62, time a defendant spent in custody serving a sentence for a motor vehicle is still excluded when computing whether any prior convictions for non-motor vehicle offenses occurred within five years of the crime for which the defendant is being sentenced.

State v. Mark G. McCaskill, 2015AP1487-CR, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

McCaskill’s challenges to his arrest and conviction for operating with a prohibited alcohol content don’t persuade the court of appeals.

State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)

The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him.

Questions presented:

Johnson v. United States, 135 S. Ct. 2551 (2015) found the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(B)(ii)(defining “violent felony”) unconstitutionally vague. That clause is identical to the residual cause in the career-offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2)(defining “crime of violence”)

(1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”);

(2) whether Johnson‘s constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and

(3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.