On Point: 36. Sentencing

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State v. Larry L. Garner, 2016AP2201-CR, 4/17/18, District 1 (not recommended for publication); case activity (including briefs)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.

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).

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.

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.

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.”

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?

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.

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.

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.