On Point: 36. Sentencing

State v. Anthony R. Pico, 2018 WI 66, 6/15/18, affirming a split, unpublished court of appeals opinion, 2015AP1799-Cr, case activity (including briefs)

This split decision clarifies important aspects of ineffective assistance of counsel law, sentencing law, and appellate procedure. In addition, Justice Abrahamson’s dissent includes a word of caution for lawyers representing clients who have experienced brain trauma that may affect their mental capacity.

State v. Justin A. Braunschweig, 2017AP1261-CR, petition for review of an unpublished court of appeals decision granted 6/11/18; case activity (including briefs)

Braunschweig was convicted of first-offense OWI causing injury, but that conviction was expunged. So, when he picked up another OWI, was it a first or a second?

State v. Michael L. Cox, 2018 WI 67, 6/15/18, on certification from the court of appeals; case activity (including briefs)

For years the DNA surcharge statute said that a court “shall” impose a surcharge on certain felony sex offenses and “may” impose a surcharge on any other felony offense. See § 973.046 (1g) and (1r) (2011-12). That changed in 2013 Wis. Act 20, §§ 2353 and 2354, which amended the statute to say a court “shall” impose a surcharge for all criminal convictions, including misdemeanors, committed on or after January 1, 2014. A unanimous supreme court holds that in making this change the legislature intended to eliminate a circuit court’s discretion to waive the surcharge by requiring the surcharge to be imposed in every case.

State v. Timothy L. Landry, 2017AP1739-CR, 6/6/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

Landry pled to 2 counts of 4th-degree sexual assault and was ordered to comply with §973.048(1m)(a), Wisconsin’s sex offender registry. On appeal, he argued that the trial court had not made the necessary findings or explained its decision adequately a la Gallion. He lost.

State v. Anthony Iven Jones, A/K/A Hashim Hasan, 2017AP364, 6/5/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

A jury found Jones guilty of bail jumping. one of his bond conditions had been that he stay 500 feet away from his former wife. He made a threatening phone call to her and was discovered by a police officer to be “approximately 92 feet away” from her house. He first claims there was insufficient evidence to support his conviction, but the court does not agree, based on the essential facts just noted. (¶12).

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.

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.

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.

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.

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.