On Point blog, page 20 of 95
Court of Appeals asks SCOW to review juvenile life sentences
State v. Curtis L. Walker & State v. Omer Ninham, 2016AP1058 & 2016AP2098, Districts I & III, 3/6/18; case activity (including briefs): Walker; Ninham
Issue:
We certify these appeals to determine whether Wisconsin case law regarding life sentences without parole for juvenile murderers comports with recent pronouncements from the United States Supreme Court, and whether the sentencing courts in these cases adequately considered the mitigating effect of the defendants’ youth in accord with those Supreme Court pronouncements.
Mistake about whether sentence would be served in jail or prison doesn’t require sentence modification or resentencing
State v. Bruce D. Johnson, 2017AP834-CR, District 3, 3/6/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Even if the sentencing court erroneously thought the sentence he was imposing on Johnson would be served in the jail rather than prison, that mistake doesn’t provide grounds for a sentence modification or resentencing.
Court of appeals gives effect to previously-ignored clause in restitution statute
State v. Sara L. Steppke, 2017AP1683, 4/2/18, District 4 (1-judge decision; ineligible for publication); case activity (including briefs)
Steppke was ordered to pay restitution for a security system her employer installed after she stole $3,000 worth of flea and tick product. The system cost over $16,000–or more than five times the value of what she took. Just a few months ago, a dissenting court of appeals judge lamented that the case law had gotten way, way ahead of the text of the restitution statute itself–giving rise to “entirely unjustifiable” results. One can hope this decision marks the beginning of a return to the plain language of the statute.
Court of Appeals rejects challenge to pleas to DV-related charges
State v. Terrance Lavone Egerson, 2016AP1045-CR, District 1, 2/27/18 (not recommended for publication); case activity (including briefs)
Egerson moved to withdraw his pleas, alleging his trial lawyer was ineffective for failing to challenge the domestic abuse repeater enhancers appended to the charges Egerson faced. According to Egerson, those enhancers never applied, so he was overcharged and led to believe his sentencing exposure was greater than it was. The court of appeals holds trial counsel wasn’t deficient because the complaints supported charging them and, in any event, Egerson hasn’t shown prejudice.
SCOTUS to decide whether 8th Amendment bars execution of 67 year-old with dementia who can’t recall his crime
Happily Wisconsin does not have the death penalty, so SCOTUS’s decision to grant cert in Madison v. Alabama, USSC No. 17-7505, is not directly relevant to our clients. But the issues for review, pasted in below are certainly interesting. Madison’s counsel of record is Bryan Stevenson of the Equal Justice Initiative.
(1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v.
Court of Appeals certifies new case addressing whether court must advise defendant of DNA surcharge during plea colloquy
State v. Arthur Allen Freiboth, 2015AP2535-CR, District IV, 2/26/18; case activity (including briefs)
Issue:
…[W]e certify the present appeal to the Wisconsin Supreme Court to decide whether a defendant who was not advised at the time of the plea that he or she faced multiple mandatory DNA surcharges has grounds for plea withdrawal.
Court of appeals affirms reduction of sentence credit, scolds counsel for appellant and respondent
State v. Lance P. Howard, 2017AP677-688-CR, 2/21/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
How to irritate the court of appeals. If you haven’t figure that out yet, read this opinion.
Prisoners challenging DOC’s deduction of prison funds to pay court obligations must exhaust administrative remedies
State v. Marquis T. Williams, 2018 WI App 20; case activity (including briefs)
Williams, a prison inmate, objected to DOC deducting funds from his prison account to pay the restitution ordered in his criminal case. He asked the sentencing judge to order DOC to stop but the sentencing judge declined. The court of appeals affirms, holding the sentencing court isn’t competent to address that issue. Instead, Williams has to exhaust his administrative remedies using the inmate complaint review system (ICRS) and, if that fails, he can bring a certiorari action in circuit court.
Court of appeals holds that expunged OWI 1st counts as prior conviction for penalty enhancer
State v. Justin A. Braunschweig, 2017AP1261-CR, 2/1/8, District 4 (1-judge opinion, ineligible for publication); petition for review granted 6/11/18, affirmed, 2018 WI 113; case activity (including briefs)
Let’s hope expunction has not worn out its welcome at SCOW because this decision could use review and possibly reversal. The State charged Braunschweig (no “er”) with OWI and PAC 2nd and submitted a certified DOT record to prove that he was convicted of an OWI 1st in 2011–a conviction that had been expunged. On appeal he argues that an expunged conviction cannot serve as a predicate for an OWI 2nd. It should be considered a status element that must be proven beyond a reasonable doubt. The court of appeals disagrees, and the upshot is that someone charged with OWI cannot claim the primary benefit conferred by §973.015–i.e. a fresh start. Is that what the Wisconsin legislature intended?
Graduating fees, fines, surcharges and restitution according to the severity of the crime and the defendant’s ability to pay
Who would’ve thunk? This is the subject of a hot new paper on the Social Science Research Network. You can read it here.