On Point: 36. Sentencing

State v. Todd N. Triebold, 2021 WI App 13; case activity (including briefs)

Triebold was convicted of child sexual assault in Wisconsin and subject to lifetime sex offender registration. He moved to Minnesota and notified the Wisconsin DOC of his address. But he moved again and failed to notify either Wisconsin or Minnesota of his change in address. He was separately convicted of violating the sex offender registration laws of Minnesota and Wisconsin. This appeal concerns his challenges to his Wisconsin conviction. The court’s decision is recommended for publication.

State v. Anthony M. Schmidt, 2020AP616-CR, petition for bypass granted 12/28/20; case activity

1. Does Wis. Stat. §973.042 (the child pornography surcharge statute) permit the circuit court to impose a child pornography surcharge for an offense that is “read in” for sentencing purposes?
2. Is the child pornography surcharge a punishment that must be explained during a plea colloquy? If so, was Schmidt entitled to a hearing on his claim that the plea colloquy was deficient in this case?

State v. Jeffrey R. Lindahl, 2019AP997-CR, District 3, 12/15/20 (one-judge decision; ineligible for publication); case activity (including briefs)

In State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, the supreme court held that a collateral attack against a prior conviction used to enhance a penalty must be based on the denial of the right to counsel in the prior case. The court of appeals holds that “denial of the right to counsel” doesn’t include denial of the right to the effective assistance of counsel.

State v. Gerald D. Taylor, 2019AP1244-CR, District 1, 12/15/20, (not recommended for publication); case activity (including briefs)

In 1999, a court imposed two, consecutive, 30-year indeterminate sentences on Taylor for child sexual assault. Accounting for the parole system in place, the court told Taylor he would be eligible for parole after serving one-quarter (15 years) of his sentence, and he could end up serving two-thirds (40 years), which is when he would reach his mandatory release date. Taylor moved for a sentence modification because the court didn’t realize his sentence had a presumptive release date (not a mandatory release) which results in a lengthier confinement.

Rico Sanders v. Scott Eckstein, 7th Circuit Court of Appeals No. 19-2596 (Nov. 30, 2020)

Sanders was give a 140-year sentence for sexual assaults he committed when he was 15 years old. He’ll be eligible for parole in 2030, when he’s 51. He argues he’s entitled to habeas relief because the Wisconsin Court of Appeals unreasonably rejected his claim that his sentence violates the Eighth Amendment under recent U.S. Supreme Court decisions dealing with life sentences for juveniles. The Seventh Circuit rejects his claim.

State v. Jordan Alexander Lickes, review of a published court of appeals decision granted 11/18/20; case activity (including briefs)

Issues presented (from the PfR):

Does the expungement statute’s requirement that a probationer have “satisfied the conditions of probation” also mean that the probationer must perfectly comply at all times with each and every rule of probation set by the probation agent?

When a circuit court chooses to hold a hearing and exercise discretion to determine whether a probationer who violated a rule set by his agent has nevertheless “satisfied the conditions of probation” so as to qualify for expungement, should the appellate court review the circuit court’s decision for an erroneous exercise of discretion?

When a circuit court makes factual findings concerning whether a probationer violated a condition of probation rendering him ineligible for expungement, must the appellate court uphold the finding in the absence of clear error?

State v. Jack B. Gramza, 2020 WI App 81; case activity (including briefs)

If an inmate serving the initial confinement (IC) portion of a bifurcated sentence completes the Substance Abuse Program (SAP), § 302.05(3)(c)2. mandates that the sentencing court “shall” modify the inmate’s sentence by converting the remaining period of IC to extended supervision (ES) so that the inmate is released from confinement to ES. The court of appeals holds this mandate doesn’t apply to an inmate who is serving a mandatory minimum term of IC for an OWI offense if the inmate hasn’t yet served the mandatory minimum term.

State v. Jack Ray Zimmerman, Jr., 2020AP475, District 2, 11/4/20 (one-judge decision; ineligible for publication); case activity (including briefs)

….not “lifetime since January 1, 1989.”

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.