On Point blog, page 21 of 96
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.
Do risk assessment tools make any difference in criminal justice outcomes?
This new paper examines data from over 1 million criminal cases in an attempt to answer that question.
SCOW: Defendant can’t seek expunction after sentence is imposed
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.
OWI driver owes restitution even if “victim” ran into him
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.
Defense win: Defendant entitled to a day of credit for portion of a day spent in custody
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.
Defense wins in calculation of the 10-year period under § 346.65(2)(am)2.
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.