On Point blog, page 9 of 19
Once again, court of appeals holds enhancer time may be used for extended supervision portion of an enhanced misdemeanor sentence
State v. Torrey L. Smith-Iwer, 2013AP1426-CR, District 1, 12/27/13; court of appeals decision (1-judge; ineligible for publication); case activity
Smith-Iwer was convicted of four misdemeanors as a repeat offender under § 939.62(1)(a) and given four consecutive two-year sentences, each consisting of one year of confinement and one year of extended supervision. He moved for postconviction relief, arguing the sentences were illegal under State v. Volk,
Use of counsel in prior cases defeats defendant’s claim that he didn’t knowingly waive his right to counsel in later case
State v. Scott J. Stelzer, 2013AP1555-CR, District 2, 12/27/13 (1-judge decision; ineligible for publication), case activity
After being convicted of his 3rd OWI offense, Stelzer moved to exclude his 2nd OWI (which occurred in 1996) from the calculation of his prior convictions on the grounds that he was not represented by counsel when he pled guilty to it. Nor did he knowingly, intelligently and voluntarily waived his right to counsel at that time.
Lack of colloquy regarding waiver of counsel in prior OWI case does not make prima facie showing for collateral attack
State v. Glen G. Bowe, 2013AP238-CR, District 3, 9/17/13; court of appeals decision (1-judge; ineligible for publication); case activity
The lack of any colloquy regarding Bowe’s waiver of his right to counsel when he pled in his prior OWI case does not by itself make the prima facie showing necessary for a collateral attack on the prior conviction because State v. Ernst,
Another unpublished decision holds enhancer time may be used for the extended supervision portion of an enhanced misdemeanor sentence
State v. Emmit L. Groce, Jr., 2013AP844-CR, District 1, 9/4/13; court of appeals decision (1-judge; ineligible for publication); case activity
Groce was convicted of criminal damage to property as a repeat offender under § 939.62(1)(a) and given a bifurcated sentence consisting of one year of confinement in prison and one year of extended supervision. (¶¶2-3). He later requested a sentence modification under State v. Gerondale,
OWI — collateral attack on prior conviction; awareness of minimum penalty
State v. Jaime M. Salomon, 2013AP577-CR, District 2, 8/21/13; court of appeals decision (1-judge; ineligible for publication); case activity
Salomon collaterally attacked his second OWI conviction under State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, arguing his waiver of counsel in the case was invalid because he was not aware of the minimum mandatory penalty for the offense. The transcript of the plea hearing in the prior case shows Salomon admitted to having read the complaint,
Yet another take on how to structure bifurcated sentences for an enhanced misdemeanor
State v. Gabriel Griffin, 2012AP2631-CR, District 1, 7/30/13; court of appeals decision (1-judge; ineligible for publication); case activity
Agreeing with State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App Nov. 3, 2009) (unpublished), and State v. Ash, No. 2012AP381-CR (Wis. Ct. App. Aug. 15, 2012) (unpublished), that there is a conflict in § 973.01 which affects the structure of enhanced misdemeanor sentences,
Enhancer time may be added to extended supervision portion of bifurcated sentence for misdemeanor enhanced under § 939.62
State v. Shawn J. Robinson, 2012AP2498-CR, District 1, 7/23/13; court of appeals decision (1-judge; ineligible for publication); case activity
Robinson was convicted of two misdemeanors which were enhanced under the repeater statute, § 939.62(1)(a). He was sentenced on each count to bifurcated sentences consisting of one year of confinement and one year of extended supervision. (¶¶2-4). He later challenged the sentences under State v.
U.S. Supreme Court reaffirms use of “categorical approach” in Armed Career Criminal Act cases
Matthew Robert Descamps v. United States, USSC No. 11-9540, 6/20/13
United States Supreme Court decision, reversing United States v. Descamps, No. 08-30013 (9th Cir. Jan. 10, 2012) (unpublished)
The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), increases the sentences of certain federal defendants who have three prior convictions “for a violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those crimes,
U.S. Supreme Court holds that a fact that increases the minimum mandatory sentence for a crime must be submitted to the jury
Allen Ryan Alleyne v. United States, USSC No. 11-9335, 6/17/13
United States Supreme Court decision, vacating and remanding United States v. Alleyne, No. 11-4208 (4th Cir. Dec. 15, 2011)
Since Apprendi v. New Jersey, 530 U.S. 466 (2000), a defendant has had the right to demand the jury find beyond a reasonable doubt any fact that increases the maximum sentence for a crime.
OWI — conviction for “first” offense must be vacated where defendant has prior OWIs despite delay in moving to vacate conviction and even though priors were from another state
Clark County v. Rex A. Potts, 2012AP2001, District 4, 3/28/13; court of appeals decision (1-judge, ineligible for publication); case activity
Potts’s 1996 conviction for OWI in violation of a county ordinance is void and must be vacated because defendant had prior convictions for operating while intoxicated—even though Potts did not move to vacate the judgment until 2012 and even though the prior convictions were from Massachusetts.
The circuit court rejected Potts’s motion for relief from the 1996 judgment because of his delay in bringing the motion,