On Point: 36. Sentencing

State v. Steven F. Zastrow, 2015AP2182-CRAC, District 3, 6/27/17 (not recommended for publication); case activity (including briefs)

Zastrow was serving a string of four consecutive prison sentences, the first imposed in June 2006 in Winnebago County, the other three imposed in October 2006 in Outagamie County. In 2008 the Winnebago sentence was vacated and Zastrow was resentenced to imposed and stayed prison time and placed on probation consecutive to the Outagamie sentences. DOC thereafter recalculated the release dates on the remaining three Outagamie sentences, and decided those sentences started running in 2008, when the Winnebago sentence was vacated. (¶¶2-4). Wrong, says the court of appeals. Those sentences began back in October 2006, on the date they were imposed.

State v. Lazaro Ozuna, 2017 WI 64, 6/22/17, affirming an unpublished court of appeals opinion; case activity (including briefs)

Lazaro Ozuna, a teenager, pled to two misdemeanors and got probation. The court also ordered that the convictions be expunged on successful completion of probation under Wis. Stat. § 973.015. Ozuna got through probation and was discharged, but he picked up an underage drinking ticket along the way–a violation of the no-drink condition of his probation but obviously not a terribly serious one. So, did he “successfully complete” his probation so as to be entitled to expunction?

Packingham v. North Carolina, USSC No. 15-1194, 2017 WL 2621313 (June 19, 2017); reversing State v. Packingham, 777 S.E.2d 738 (N.C. 2015); Scotusblog page (including links to briefs and commentary)

Lester Packingham was convicted for having sex with a 13 year old when he was 21, and was thus required to register as a sex offender for 30 years or more. Eight years later, having completed his sentence, Packingham posted on Facebook to celebrate the dismissal of a traffic ticket. He was charged with, and eventually pled to, a felony under a North Carolina law that prohibits those on the registry from accessing “a commercial social networking Web site” if they know the site allows children to sign up.

Virginia v. Dennis LeBlanc, USSC No. 16-1177, 2017 WL 2507375 (June 12, 2017), reversing LeBlanc v. Mathena, 841 F.3d 256 (4th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Although this is a per curiam decision and it’s decided under the rubric of federal habeas review, the upshot of this opinion is that states won’t have to do too much to satisfy the requirement under Graham v. Florida, 560 U.S. 48, 75 (2010), that a state give a juvenile serving life without parole “some meaningful opportunity to obtain release based on a demonstrated maturity and rehabilitation.”

State v. Jesse T. Riemer, 2017 WI App 48; case activity (including briefs)

In what appears to be the first case of its kind, the court of appeals addresses the standard for reviewing the sentence imposed on a member of the Wisconsin National Guard after he was convicted of various offenses. Concluding it should apply the same standard as civilian criminal cases—erroneous exercise of discretion—it affirms the military judge’s sentence.

State v. Diamond J. Arberry, 2016AP866-CR, 6/16/17, granting a petition for review of a published court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. When a defendant is eligible for expungement under § 973.015 but expungement is not addressed the sentencing hearing, can the defendant raise the issue in a postconviction motion? If so, is a “new factor” motion the appropriate vehicle for bringing such a claim?

2. Did the circuit court err in its exercise of discretion when it denied Arberry expungement based on reasons that could apply in any case?

State v. Ron Joseph Allen, 2016AP885, 6/13/17, District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Ron Allen of first-degree intentional homicide as party to the crime. He raises various challenges to the conviction and sentence of life without extended supervision, but the court of appeals rejects them all.

Recall that SCOTUS recently ordered the Solicitor General to file an amicus brief on the question of whether Loomis’ petition for writ of certiorari should be granted or denied. Here is the SG’s amicus brief. It argues that “the use of actuarial risk assessments raises novel constitutional questions that may merit this Court’s attention in a future case.” Amicus Br. at 12. However, says the SG, Loomis is not a good vehicle for addressing th0se issues because, among other things:

State v. Paul A. Adams, 2016AP1149, 5/31/17, District 2 (1-judge opinion, ineligible for publication); case activity

Adams, an inmate, objected to the garnishment of his prison wages to pay fines and forfeitures assessed in various traffic and OWI cases. The court of appeals rejected all of his claims because Adams, the moving party, bore the burden of proof but failed to offer any evidence that the amounts assessed were incorrect.  

State v. Scot Alan Krueger, 2016AP2438-CR, 5/25/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court erred in holding Krueger failed to make a prima facie showing that he didn’t validly waive the right to counsel in a prior OWI conviction.