On Point: 36. Sentencing

This new paper examines data from over 1 million criminal cases in an attempt to answer that question.

State v. Diamond J. Arberry, 2018 WI 7, affirming a published court of appeals decision; case activity (including briefs)

The supreme court holds that a defendant may not seek expunction after sentence is imposed because the language of § 973.015 and State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, require the decision regarding expunction to be made at the sentencing hearing.

State v. David M. Larson, 2017AP1610-CR, 12/27/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

David Larson was driving drunk when another driver, who was cited for failing to yield the right of way, collided with him in a roundabout. Larson drove away while police were investigating. After a contested hearing, the court awarded the other driver restitution for injuries to himself and damage to his car.

State v. Antonio Johnson, 2018 WI App 2; case activity (including briefs)

Under § 973.155(1)(a) a convicted offender is entitled to credit for “all days spent in custody” in connection with the course of conduct for which sentence is imposed. So what’s a “day” for credit purposes? Any part of a calendar day, as Johnson claims? Or a continuous twenty-four-hour period, as the state asserts? Based on supreme court cases dealing with credit, the court of appeals agrees with Johnson that it is any part of a calendar day.

State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)

In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.

State v. Patrick H. Dalton, 2016AP2483-CR, petition for review 0f an unpublished court of appeals opinion granted 11/13/17; case activity (including briefs)

Issues:

1. Under Missouri v. McNeely and Birchfield v. North Dakota, may a circuit court impose a harsher criminal punishment because a defendant exercised his constitutional right to refuse a warrantless blood draw?

2. Whether Dalton was denied the effective assistance of counsel where his attorney failed to move to suppress blood evidence on grounds that police lacked exigent circumstances to forcibly draw his blood without a warrant?

State v. Shawn T. Wiskerchen, 2016AP1541-CR, 11/1/17, District 2 (not recommended for publication), petition for review granted 3/14/18; affirmed 1/4/19; case activity (including briefs)

“If you start off on the wrong foot, the footer you go, the wronger it gets.” So said Hank the Cowdog and so, essentially, argues the dissenting opinion in this case.  Section 973.20(1r) allows a sentencing court to order a defendant to make full or partial restitution to any victim of a “crime considered at sentencing,” which means “any crime for which the defendant was convicted and any read-in crime.” §973.20(1g)(a). Before ordering restitution, the court must first find a “causal nexus” between the “crime considered at sentencing” and the victim’s alleged damages. Here, the court of appeals finds a “causal nexus” between the lone burglary considered at sentencing and possible losses caused by possible, uncharged prior burglaries that were never considered or read in at sentencing. It does so based upon a series of restitution decisions that have incrementally produced a result the dissent finds absurd.

State v. Michael L. Cox, 2016AP1745-CR, certification granted 10/17/17; case activity (including briefs)

Issue (from certification):

This case raises a single question: whether a sentencing court retains any discretion under Wis. Stat. § 973.046 (2015-16), to waive DNA surcharges for crimes committed after January 1, 2014.

State v. Jamal L. Williams, 2017 WI App 46, cross petitions for review granted 10/10/17; case activity (including briefs)

Issues (composed by On Point)

1. Is the imposition of a single mandatory $250 DNA surcharge an ex post facto violation with respect to a defendant who committed his offense when the surcharge was discretionary and who previously had provided a DNA sample in another case?

2. Is Jamal Williams entitled to resentencing because the circuit court sentenced him based on an improper factor, namely, the fact that Williams refused to stipulate to restitution for which he was not legally responsible?

State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)

Issues (composed by On Point):

1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?

2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?

3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?

4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?

5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?