On Point blog, page 19 of 95
SCOW overrules Elward and Radaj; mandatory DNA surcharge doesn’t violate ex post facto clause
State v. Jamal L. Williams, 2016AP883-CR, 2018 WI 59, 5/30/18, reversing in part, a published court of appeals opinion, 2017 WI App 46, case activity (including briefs)
In a 5-0 opinion (Roggensack and A.W. Bradley did not participate) SCOW overruled two court of appeals decisions, State v. Elward and State v. Radaj, which had held that the §973.046 mandatory DNA surcharge violated the Ex Post Facto Clauses of the state and federal constitutions. SCOW delved into the reasoning of both cases and found it “faulty.” It further held that a circuit court may consider a defendant’s opposition to paying restitution as part of his character or lack of remorse when choosing a sentence.
Must other states’ court orders mean what they say?
State v. Benjamin R. Tibbs, 2017AP2408-CR, District 4, 5/10/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Why, no; no, they don’t.
Challenge to collection of old fine fails
State v. Eric W. Poirier, 2017AP931-CR, District 3, 5/8/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Back in 2003, Poirier was fined $1,184 for an OWI conviction. He didn’t pay, so a judgment was entered against him. In 2017 the circuit court entered an order assigning income from his prison account to pay the judgment. He objects to the assignment order, but to no avail, due in large part to missteps common to pro se litigants.
Sentencing judge didn’t need to give separate reasons for imposing fine
State v. Robert P. Vesper, 2018 WI App 31; case activity (including briefs)
Vesper complains that when he was sentenced for his 7th OWI offense the judge didn’t give a separate explanation for why it was imposing a fine in addition to prison time. Over a dissent, the court of appeals concludes the judge said enough to satisfy the (not at all exacting) standard of review for exercise of sentencing discretion. The court also rejects Vesper’s claim that the judge didn’t assess his ability to pay the fine.
Challenges to admission of transcript testimony by unavailable witness, amendment of information, and sentence fail
State v. Larry L. Garner, 2016AP2201-CR, 4/17/18, District 1 (not recommended for publication); case activity (including briefs)
The State charged Garner and 3 other co-defendants with 2 counts of armed robbery use of force, PTAC, and felony murder, PTAC. The trial court ordered separate trials. A mistrial occurred due to juror misconduct, so the court held a second trial where the jury found Garner guilty on all 3 counts. On appeal the lead issue was whether the circuit court violated Garner’s confrontation rights by allowing the State to present his co-defendant’s testimony from the 1st trial at his 2nd trial. The answer, according to the court of appeals, is “no.” Garner’s challenges to the State’s amended information and to his sentence also failed.
Defense win! Court of appeals reverses circuit court’s denial of request for expunction
State v. Cheneye Leshia Edwards, 2017AP633-CR, 4/17/18, District 1 (1-judge opinion, ineligible for publication), case activity (including briefs).
Edwards entered a plea to disorderly conduct and asked the sentencing court to order expungement in the event he successfully completed probation. The court denied the request without explaining why. So Edwards filed a postconviction motion arguing that (1) the sentencing court erroneously exercised its discretion, and (2) the postconviction court had the inherent authority to grant expunction. The court of appeals reversed on (1) and declined to address (2).
Guesswork is good enough to support restitution order
State v. Angela C. Nellen, 2017AP257-CR, District 4, 4/18/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Completely overlooking the victim’s own restitution hearing testimony that she was guessing about the number and value of the coins they believe were stolen by Nellen, the court of appeals blames Nellen for “fail[ing] to support [her] argument” that the record was insufficient to support the circuit court’s $90,000 restitution order for 30 coins at $3,000 each.
The collateral consequences of misdemeanor sentences
A new Hofstra Law Review article argues that there is no such things as a low-stakes misdemeanor. The sentences can be long and the collateral consequences can be worse. This article could help you help your judge engaged in informed misdemeanor sentencing. Your clients will thank you.
Court of appeals finds search of home by off-duty cop is private, not government, search
State v. Ricardo L. Conception, 2016AP1282-CR, 3/28, District 2 (not recommended for publication); case activity (including briefs)
Concepcion pled to 10 counts of possession of child pornography. The court of appeals affirmed the denial of his suppression motion because the search of his home was a private-party search, not a government search. It also held that Concepcion’s sentence (9 in, 6 out) was not unduly harsh, and his trial counsel did not perform deficiently by failing to tell the sentencing court that he is a “hero” of “exemplary character and stature.”
SCOW to consider limits on Wisconsin’s restitution statute
State v. Shawn T. Wiskerchen, 2016AP1541-CR, petition for review of an unpublished court of appeals opinion granted 3/14/18; affirmed 1/4/19; case activity (including briefs).
Issue (composed by On Point):
In State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, the court of appeals required a defendant to pay restitution for a security system that the victim bought before the date of the crime for which the defendant was convicted.
Must Queever be overturned because it is impossible for a crime committed on a certain date to cause losses on an earlier date? If not, what are the limits of Queever and of the definition of “a crime considered at sentencing” for restitution purposes? Can the definition include alleged prior-committed crimes?