On Point: 36. Sentencing

State v. Peter J. King, 2020 WI App 66;  case activity (including briefs)

Packingham v. North Carolina, 137 S Ct. 1730 (2017) struck down a law making it a felony for a registered sex offender to use any social networking site that permits minors to become members or to create personal web page. The statute was so broad that it violated the 1st Amendment. See our post here. In this case, the court of appeals holds that Packingham’s reasoning does not apply to court-ordered conditions of extended supervision that sharply restrict a defendant’s access to the internet. 

State v. Tory J. Agnew, 2019AP1785-CR, District 4, 7/30/20 (not recommended for publication); case activity (including briefs)

The court of appeals affirms the structure of a bifurcated sentence for an unclassified felony to which a sentence enhancer applied, even though the sentence imposed runs afoul of the statutes and prior case law.

State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)

Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn have no contact with his girlfriend.

State v. Bobby L. McNeil, 2019AP467-CR & 2019468-CR, District 1, 7/21/10 (not recommended for publication); case activity (including briefs)

McNeil was convicted of drug offenses, obstructing, and bail jumping after a trial in two consolidated cases. His challenges to the joinder of the cases and to various evidentiary issues are rejected, but he prevails on the challenge to his sentence because the circuit court relied on inaccurate information at sentencing.

State v. Ryan M. Muth, 2020 WI 65, reversing a per curiam court of appeals decision; case activity (including briefs)

Muth drove while intoxicated and caused the death of T.K. About a month later T.K.’s adult children reached a settlement with Muth’s insurer under which the children received the maximum payout under Muth’s policy as settlement for all claims against Muth. (¶3). Or so Muth thought. A majority of the supreme court holds that, because Muth was later convicted of homicide by intoxicated use of a vehicle, he can also be ordered to pay more money to the children as restitution under § 973.20.

State v. Alfonzo C. Loayza, 2018AP2066-CR, petition for review of a per curiam opinion granted 6/16/20; case activity

Issue (from the State’s petition for review):

It is well established that a DOT record is competent proof of a defendant’s prior conviction and can therefore be used to enhance the defendant’s sentence. It is also  well established  that a defendant may challenge the existence of a  conviction listed on a DOT record. But currently, there is no accepted procedure for how a defendant should challenge the existence of a conviction listed in a DOT record and what burden he must satisfy to make a DOT record so unreliable that it no longer qualifies as competent proof of the conviction.

Do the lack of a judgment of conviction for a prior offense and other documents that “support the inference” that the conviction does not exist render a Wisconsin DOT driving record that lists the conviction so unreliable that it is no longer competent proof of the conviction?

State v. Troy R. Lasecki, 2020 WI App 36; case activity (including briefs)

Wonders never cease. The State charged Lasecki with 2 counts of failure to return security deposits to tenants in violation of Wis. Admin Code. §ATCP 134.06(2) and §§100.20(2) and 100.26(3)(2013-3104). Lasecki proceeded pro se at trial, and a jury convicted  on both counts. His appeal drew amicus briefs from the Apartment Ass’n for Southeastern Wisconsin, the Univ. of Wis. Law School and from the Attorney General  about whether the statute and code criminalized the failure to return rent. Answer: “yes.” but Lasecki won anyway because the jury instructions were erroneous and the court erred in ordering restitution above the victim’s pecuniary losses.

State v. Paris Markese Chambers, 2019AP17-18-CR, 5/12/20, District 1 (not recommended for publication); case activity (including briefs)

The State charged 17 year old Chambers with 8 crimes involving car theft, damage to property, and bail jumping across two cases. His maximum sentence exposure was 29.5 years and a $75,000 fine. The trial court imposed a global sentence of 8.5 years of initial confinement and 13.5 years extended supervision. On appeal Chambers argued that his global sentence was harsh and unconscionable.

State v. Ronald Eugene Provost, 2020 WI App 21; case activity (including briefs)

It’s unclear why this opinion is recommended for publication. Best guess is that is provides a (rather thin) gloss on the “systemic breakdown” exception to the rule that delays attributable to defense counsel don’t weigh in favor of a speedy trial violation. The court cites and adopts a statement from a New Mexico court that defense counsel’s delays represent a “systemic breakdown” only when they are caused by “problems that are both institutional in origin and debilitating in scope.” (¶40). Sounds like a slightly longer way of saying “systemic breakdown,” no?

State v. Wyatt William Kontny, 2020 WI App 30; case activity (including briefs)

You’d think all the sentence credit issues would’ve been settled by now, but it’s not so! This case settles two of them.