On Point: 36. Sentencing

State v. Pierre Deshawn Johnson, 2018AP595-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs)

Johnson pled to operating a vehicle with a suspended license and injury by operating under the influence of a controlled substance. His lead issue–whether the victim’s failure to wear a seatbelt was a significant intervening factor that diminished his culpability and warranted a new sentence–failed based on State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163.

State v. Shawn T. Wiskerchen, 2019 WI 1, 1/4/19, affirming an unpublished court of appeals decision, 2016AP1541; case activity (including briefs)

This could have turned out worse. The court of appeals, as we noted in our post on that court’s decision, held that Wiskerchen, convicted of a single burglary of a home, could be made to pay restitution for his alleged prior burglaries of the same home, even though those alleged burglaries were neither charged nor read in, as the statute seems to require. Four justices now conclude, through a creative reading of the record, that the circuit court found Wiskerchen took everything in the single burglary. So, precedentially, this case amounts to little or nothing, and for now at least, the court avoids embracing the court of appeals’ view that results can precede causes.

State v. Justin A. Braunschweig, 2018 WI 113, 12/21/18, affirming an unpublished court of appeals decision; case activity (including briefs)

Braunschweig was convicted in 2011 of causing injury by intoxicated operation of a vehicle. The conviction was expunged under § 973.015. In 2016 he was charged with operating while intoxicated and with a prohibited alcohol content, both as a second offense because of the 2011 conviction. The supreme court rejects his claim that the expunged conviction can’t be a predicate offense under § 343.307(1).

State v. Shawn A. Hodgkins, 2017AP1799-CR, District 2, 12/12/18 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

Hodgkins objected to DOC collecting costs from him while he was in prison because the circuit court ordered the costs to be collected while he was on a term of consecutive probation. He also sought a “new factor” sentence modification. Alas, it was all in vain.

State v. Charles L. Neill, IV, 2019 WI App 4; petition for review granted 6/11/19, reversed, 2020 WI 15; case activity (including briefs)

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?

State v. Carrie E. Counihan, 2017AP2265-CR, District 3, 11/6/2017 (one-judge decision; ineligible for publication), petition for review granted 5/14/19, modified and affirmed, 2020 WI 12, ; case activity (including briefs)

At Counihan’s sentencing, the circuit court announced it had researched the outcomes in other cases with similar charges and then used that information in sentencing Counihan to jail time. Counihan moved for resentencing, arguing the circuit court violated due process because she didn’t have notice it had collected information about other cases or the opportunity to address the information at sentencing. The court of appeals holds the claim is forfeited because trial counsel didn’t object at the sentencing hearing. It also holds trial counsel’s failure to object wasn’t prejudicial.

State v. Deshawn Harold Jewell, 2017AP2503-CR, 10/30/18. District 1 (not recommended for publication); case activity (including briefs)

Jewell claims that he is innocent of armed robbery, so his identity was an issue at trial. During deliberations,  the jury asked the trial court for the “six pack” of pictures of people who appeared in the police photo array that the victim used to identify him. They also asked a question about how the photos were numbered. Jewell and his lawyer were not present and had no input into the answer.

State v. Damien Farold Robinson, 2018AP259-CR, District 1, 10/30/18 (not recommended for publication); case activity (including briefs)

Robinson challenges some of the restitution ordered to reimburse two burglary victims for repairing the damage caused by Robinson’s forcible entry. The court rejects his arguments that there was insufficient evidence about the costs of repair and the reasonableness of the costs.

State v. Kole R. Eichinger, 2017AP1845-1847-CR, 10/16/18, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

This case highlights an expunction issue that SCOW still needs to resolve. Prior to 2014, circuit courts often delayed deciding expunction until they saw how a defendant did on probation. State v. Matasek, 2014 27, 353 Wis. 2d 601, 846 N.W.2d 811 changed that practice.  It clarified that courts must decide whether to order expunction at the time of sentencing.  What about all of the defendants who were expressly told at sentencing that they could apply for expunction after they completed probation?

State v. Kenneth Alexander Burks, 2018AP208-CR, 9/25/18, District 1, (not recommended for publication); case activity (including briefs)

The court of appeals held that an officer’s testimony that another witnesses’s testimony was “very believable” did not qualify as “vouching” when considered in context. It also held that the circuit court did not impermissibly rely on its own comments about the opioid epidemic, addiction, and the medical and pharmaceutical industries when it sentenced Burks. Thus, his lawyer was not ineffective when he failed to object to these alleged errors.