On Point: 36. Sentencing

State v. James A. Culver, 2018AP799-CR, District 4, 7/25/19 (not recommended for publication); case activity (including briefs)

Back in 2008 Culver was convicted and sentenced for OWI, fifth offense, with a minor in the car, which doubles the minimum and maximum penalties, § 346.65(2)(f). Now that his extended supervision (ES) is being revoked he challenges the length of the ES term originally imposed. He argues the presence of a minor is a penalty enhancer, which lengthens the term of initial confinement but not the term of ES, see § 973.01(2)(c)1. and State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24. No, says the court of appeals, under State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 NW.2d 872, OWI with a minor passenger is an unclassified felony, so the term of ES is increased, too.

State v. Dominique M. Anwar, 2018AP2222-CR, 6/25/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

The court of appeals rejects Anwar’s arguments that she’s entitled to resentencing because the State offered certain information at her sentencing hearing without first disclosing the information and giving her notice it would use the information.

State v. Jessy A. Rivard, 2018AP1070-CR, District 3, 6/18/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Rivard’s challenge to the use of a 2006 OWI conviction fails because the record supports the circuit court’s conclusion that Rivard’s waiver of counsel in that case was valid.

State v. Dustin M. Yanda, 2018AP412-CR, District 3, 6/18/19 (not recommended for publication); case activity (including briefs)

In State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828, the supreme court held that a defendant seeking a “new factor” sentence modification doesn’t need to prove that the new factor “frustrates the purpose” of the original sentence. However, Harbor doesn’t preclude the sentencing court from considering whether the purpose of the sentence is frustrated in deciding whether to modify a sentence once the court has concluded the defendant has proven a new factor.

State v. Charles L. Neill, IV, petition for review granted 6/11/19; 2018AP75; case activity (including briefs)

This is a review of a published court of appeals decision. Here’s the issue, as stated in our prior post:

Neill pleaded to an OWI-3rd, which has a minimum fine of $600. Wis. Stat. § 346.65(2)(am)3. His plea came with two statutory enhancers: the one for having a BAC over .25 (Wis. Stat. § 346.65(2)(g)3.), and the one for having a child in a car (§ 346.65(2)(f)2.). The former quadruples the minimum fine, and the latter doubles it. So, what’s the minimum fine?

McKinney v. Arizona, USSC No. 18-1109, certiorari granted 6/10/19; affirmed 2/25/20

Questions presented:

1. Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted

2. Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.

Holguin-Hernandez v. United States, USSC No. 18-7739, cert granted 5/30/19

Question presented:

Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

State v. Carrie E. Counihan, 2017AP2265-CR, petition for review granted 5/14/19, and State v. Donavinn Coffee, 2017AP2292-CR, petition for review granted 5/14/19; case activity (Counihan; Coffee)

Issues:

Does a defendant forfeit his right to challenge a judge’s consideration of information at sentencing by failing to object to the information at the time of sentencing?

If trial counsel does not object to the court’s consideration of the information and the defendant alleges postconviction that trial counsel was ineffective for failing to object, what is the standard for determining whether trial counsel’s failure was prejudicial?

Looks like NYU Professor Ann Washington has done the hard work for you. Her new article, How to Argue With an Algorithm: Lessons from the Compass-ProPublica Debate, strives to inform courtroom arguments over the integrity of algorithms used to predict risk during the sentencing process.

MULS Professor Michael O’Hear has a new article out: Managing the Risk of Violent Recidivism: Lessons from Legal Responses to Sexual Offenses. See the abstract below, and click here for the article.