On Point: 36. Sentencing

State v. Patrick H. Dalton, 2016AP2483-CR, petition for review 0f an unpublished court of appeals opinion granted 11/13/17; case activity (including briefs)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State v. Shawn T. Wiskerchen, 2016AP1541-CR, 11/1/17, District 2 (not recommended for publication), petition for review granted 3/14/18; affirmed 1/4/19; case activity (including briefs)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?

State v. Kory v. Ambroziak, 2017AP22-CR, 9/19/17, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

Ambroziak argued that he was incorrectly sentenced for a 2nd-offense OWI because the State had failed to prove the existence of a prior OWI-related offense beyond a reasonable doubt. But the court of appeals held that the State carried its burden. Thus, the circuit court correctly sentenced Ambroziak with second-offense OWI penalties.

State v. Tydis Trinard Odom, 2015AP2525-CR, certification granted 9/12/17; case activity (including briefs). This is the second certification of this case; here’s the first.

Issue

In determining whether the imposition of multiple DNA surcharges constitutes “potential punishment” under WIS. STAT. § 971.08(1)(a) so that a court must advise a defendant about the surcharges before a valid plea may be taken, is the “intent-effects” test, as applied in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, and State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, to ex post facto claims, the same analysis that was applied in State v. Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199, to a plea withdrawal claim?

If the analysis is the same, should Radaj be overruled in light of the supreme court’s recent decision in Scruggs?

We note that we previously certified the issue of whether multiple DNA surcharges constituted “potential punishment” under WIS. STAT. § 971.08(1)(a), such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent. The supreme court declined to accept certification.

We certify again because, as explained below, the supreme court’s recent decision in Scruggs now suggests that the ex post facto analysis of Radaj, holding that multiple DNA surcharges are “punishment,” was incorrect.

State v. Michael L. Cox, 2016AP1745-CR, District 2, 8/29/17, certification granted 10/17/17, affirmed, 2018 WI 67; case activity (including briefs)

Issue certified

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. Michel L. Wortman, 2017 WI App 61; case activity (including briefs)

A glitch in the OWI penalty statute appears to suggest that OWI 7th and greater offenses don’t allow for a fine, but only for the imposition of the forfeiture provided for first-offense OWI. The court of appeals concludes otherwise. The court also rejects Wortman’s claim that he was under arrest when a sheriff’s deputy transported him back to the scene of the accident he was in.

State v. Samuel Silverstein, 2017 WI App 64; case activity (including briefs)

Pursuant to a warrant, police searched Silverstein’s computer for child porn. The “informer” was Tumblr, which is required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children. Silverstein challenged the warrant as well as the mandatory minimum sentence the trial court imposed per §939.617, which he contends is unconstitutionally vague.