On Point: 36. Sentencing

State v. Richard H. Harrison Jr., , 2017AP2440-2441-CR, 3/21/19, District 4, (not recommended for publication); Review Granted 8/14/19, reversed, 2020 WI 35; case activity (including briefs)

This post requires some concentration. Harrison was sentenced to 3 years IC (Initial Confinement) and 3 years ES (Extended Supervision) in a 2007 case and a 2008 case. In an unrelated 2010 case he was sentenced to 13 years IC and 7 years ES. And in a 2011 case he received 30 years IC and 10 years ES. The 2010 and 2011 sentences ran consecutive to all other sentences.  Harrison served the IC parts of his 2007 and 2008 cases and started serving his IC in the 2010 case when–lucky him–both his 2010 and his 2011 convictions were vacated. By this point all he had to serve was the ES of his 2007 and 2008 cases.

Randall Mathena, Warden v. Lee Boyd Malvo, USSC No. 18-217, certiorari granted 3/18/19

Question presented:

Montgomery v. Alabama, 136 S. Ct. 718 (2016)), held that the new constitutional rule announced in Miller v. Alabama, 567 U.S. 460 (2012), applies retroactively to cases on collateral review. Did the the Fourth Circuit Court of Appeals err in concluding that Montgomery could be interpreted as modifying and substantively expanding the Miller rule itself, when the issue presented in Montgomery was only the retroactivity of that rule?

Kahler v. Kansas, USSC No. 18-6135, certiorari granted 3/18/19

Question presented:

Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?

State v. Zachary S. Friedlander, 2019 WI 22, 3/12/19, reversing an unpublished court of appeals decision; case activity (including briefs)

State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, laid down a bright-line rule for determining whether a person was in “custody” for purposes of earning sentence credit. The supreme court holds that rule is inconsistent with cases holding that an inmate who is mistakenly released from custody continues to serve his or her sentence, and so is entitled to credit for the time he or she was at liberty.

State v. Marshawn Terell Johnson, 2017AP2445-CR, District 3, 3/19/19 (not recommended for publication); case activity (including briefs)

In sentencing Johnson for possession of heroin with intent to delivery, the circuit court remarked that he’d traveled to Superior from Chicago to commit his crime. The sentencing court’s consideration of that fact did not violate the Privileges and Immunities Clause of the U. S. Constitution.

State v. Angela L. Staten, 2018AP1506-CR, District 1, 3/19/19 (not recommended for publication); case activity (including briefs)

Staten and her two co-defendants engaged in a course of tax fraud that netted them over $200,000 in tax refunds that didn’t belong to them. Staten, the first of the three sentenced, argues that her sentence was unduly harsh compared to her co-defendants’ sentences and that the sentencing court erroneously exercised its discretion in changing its mind at the very end and ordering prison rather than probation on two of the counts. The court of appeals rejects her challenges.

Timbs v. Indiana, USSC No. 17-1091, February 20, 2019, reversing State v. Timbs, 84 N.E.3d 1179 (Ind. 2017); Scotusblog page (including links to briefs and commentary)

“The question presented: Is the Eighth Amendment’s Excessive Fines Clause an ‘incorporated’ protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?” The answer: Yes.

State v. Ashlee A. Martinson, 2017AP1889-CR, District 3, 2/20/19 (not recommended for publication); case activity (including briefs)

Martinson was charged with two counts of first-degree intentional homicide for killing her mother and stepfather. She pled to second-degree intentional homicide based on her claim of adequate provocation, which is premised on a complete lack of self-control, § 939.44(1)(a). That mitigating defense didn’t preclude the sentencing court from basing its sentence on the conclusion the defendant “had a choice” whether to kill the victims.

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.