On Point blog, page 2 of 2
SCOW: Penalty provisions covering OWI 7th and above require imposition of a bifurcated sentence
State v. Clayton W. Williams, 2014 WI 64, 7/15/14, reversing a published court of appeals decision; majority opinion by Justice Prosser; case activity
This opinion addresses § 346.65(2)(am)6. as it applied to OWI 7th, 8th, and 9th offenses committed between July 1, 2010, when the statute first took effect, and April 10, 2014, when it was amended by 2014 Wis. Act 224. During that time period, the statute provided that the offense was a Class G felony, and that “[t]he confinement portion of a bifurcated sentence imposed on the person under [§] 973.01 shall be not less than 3 years.” The supreme court concludes this language is ambiguous because it could be read either to require a court to impose a bifurcated sentence or, instead, to permit a court to order probation with or without imposition of a bifurcated sentence, but that the legislative history makes it clear the language requires courts to impose a bifurcated sentence with a mandatory minimum three-year period of initial confinement.
Ignition interlock must be ordered in first offense OWI when defendant has prior offense outside the 10 year counting period
Village of Grafton v. Eric L. Seatz, 2014 WI App 23; case activity
“The issue presented is straightforward: Must a court order the installation of an ignition interlock device when a defendant is convicted of first-offense operating while intoxicated (OWI) and also has a prior conviction for an OWI offense? The answer is yes.” (¶1).
Seatz was arrested for OWI. His blood alcohol content was .13.
State v. Clayton W. Williams, 2011AP2868-CR, petition for review granted 11/21/13
Review of published court of appeals decision; case activity
Issue (composed by On Point)
Does § 346.65(2)(am)6., which provides that “the confinement portion of a bifurcated sentence imposed under s. 973.01 [for an OWI 7th, 8th, or 9th] shall be not less than 3 years,” require that a bifurcated sentence be imposed?
The court of appeals held that the statute requires a minimum period of confinement if a bifurcated sentence is imposed,
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 — the penalty language of § 346.65(2)(am)6. does not require the court to impose a bifurcated sentence
State v. Clayton W. Williams, 2013 WI App 74, petition for review granted 11/21/13; reversed, 2014 WI 64, 7/15/14; case activity
Wisconsin Stat. § 346.65(2)(am)6. makes OWI 7th, 8th, or 9th a Class G felony, but also provides that “[t]he confinement portion of a bifurcated sentence imposed on the person under s. 973.01 shall be not less than 3 years.”
Sentencing Sexual Assault-Child, § 948.02(1)(b): Mandatory Min., Probation-Ineligible
State v. Tony J. Lalicata, 2012 WI App 138 (recommended for publication); case activity
Probation is not an available disposition under § 948.02(1)(b) (child sexual assault). By mandating that “the court shall impose a bifurcated sentence” with a confinement portion of at least 25 years for that offense, § 939.616 forecloses the possibility of probation:
¶14 … We conclude instead that § 939.616(1r) unambiguously prohibits probation,
Repeated Sexual Assault of Same Child, § 948.025(1)(a) – Mandatory Minimum Sentence – Jury Instructions
State v. Carlos G. Comas, 2010AP2687-CR, District 4, 9/29/11
court of appeals decision (not recommended for publication); for Comas: Steven D. Grunder, SPD, Madison Appellate; case activity
Although Comas was charged with § 948.025(1)(a), repeated sexual assault of the same child by acts of sexual intercourse, the case was in effect tried under § 948.025(1)(ar) ,which requires acts of sexual intercourse or contact. Comas received a confinement term of 25 years,
Presumptive Minimum – Truth-in-Sentencing
State v. Tommie L. Cole, 2003 WI 59, on certification
For Cole: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding:
¶9. The court of appeals asks that we determine what combination of confinement in prison and extended supervision constitutes the presumptive minimum sentence when a statute provides that an offender “shall be imprisoned for not less than 3 years.”10 In other words,
Mandatory Penalty – Controlled Substances, Suspension/Revocation of Operating Privileges
State v. Jacob E. Herman, 2002 WI App 28, PFR filed 1/16/02
For Herman, Jack E. Schairer, Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶1 Jacob Herman appeals from the sentencing portion of a judgment convicting him of possession of THC contrary to WIS. STAT. § 961.41(3g)(e). The circuit court suspended Herman’s operating privilege for six months after concluding that it had no discretion to impose less than the minimum suspension mandated by WIS.
OWI – Unauthorized Sentence – Probation without Mandatory Minimum Confinement for OWI 6th – Resentencing as remedy
State v. William P. Eckola, 2001 WI App 295
For Eckola: Gregory A. Parker
Issue: Whether the trial court erroneously exercised discretion by placing Eckola on probation for OWI-6th without requiring confinement for at least the presumptive minimum mandated by § 346.65(2)(e).
Holding:
¶15. When the circuit court, in its discretion, determines that a defendant will be placed on probation, Wis. Stat. § 973.09(1)(d) requires that the person be confined for at least the mandatory minimum period.