On Point: 36. Sentencing

State v. Thomas J. Queever, 2016 WI App 87; case activity (including briefs)

Thomas Queever tried to break into a house. We know this because the home’s security system captured video of him doing so. The circuit court and the court of appeals ordered him to pay the cost of said security system, concluding that the expense of installing it was the “result of a crime considered at sentencing,” even though it was installed prior to the burglary of which Queever was convicted. Does the court of appeals’ authority extend to reversing the arrow of time?

Review of a court of appeals summary disposition; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Could the defendant be convicted of two counts of hit and run with death resulting for a single act of leaving the scene of an accident that caused two deaths?

(2) Is the defendant’s sentence unduly harsh?

On bypass;  case activity (including briefs)

Issue (derived from court of appeals’ briefs):

Whether the Crime Victims Rights Board’s power to remedy a violation of a victim’s right to the speedy disposition of a criminal case can be applied to judges without violating the separation of powers doctrine.

They may seem more measured and bias free, but according to this new article, they aren’t very good. Compas has significant flaws, and the accuracy of the Static 99-R “is not much better than a coin toss.” This article links to a number of studies that might support a challenge to the use of these tools.

State v. David L. Tarlo, 2016 WI App 81; case activity (including briefs)

When’s the last time you saw a defense win on a restitution issue? This child porn case addresses the vexing problem of circuit courts awarding restitution though the victim failed to prove that her losses were “a result of a crime considered at sentencing” as required by Wis. Stat. §973.20(14)(a). 

State v. Matthew Allen Lilek, 2014AP784-CR, 10/4/16, District 1 (not recommended for publication); case activity (including briefs)

Lilek’s trial counsel raised his competency to stand trial and the court-appointed expert found him incompetent and unlikely to become so. The state, dissatisfied with that result, requested another evaluation, and the court obliged. This new evaluation reached the opposite conclusion, and Lilek was eventually found competent. Is this OK?

Question presented:

Colorado, like many states, imposes various monetary penalties when a person is convicted of a crime. But Colorado appears to be the only state that does not refund these penalties when a conviction is reversed. Rather, Colorado requires defendants to prove their innocence by clear and convincing evidence to get their money back.

The Question Presented is whether this requirement is consistent with due process.

Review of an unpublished court of appeals opinion; case activity (including briefs)

Issues:

(1)  Whether to satisfy the conditions of probation for purposes of Wisconsin’s expungement statute, § 973.015(1m)(b), a probationer must perfectly comply with every probation condition, or whether under State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, it is enough that the probation agent determines that the probationer has successfully completed probation?

(2)  Whether Ozuna‘s procedural due process rights were violated when the court failed to provide him with notice or a hearing before denying expungement?

The Supreme Court of Ohio recently answered that question “no.” State v. Hand, 2016 Ohio 5504, 2016 WL 4486068, 8/25/16. Hand rejects the majority position on this question, and instead adopts the position of the Ninth Circuit in United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), holding that the lack of a jury trial in juvenile proceedings under Ohio law means a juvenile adjudication isn’t a “prior conviction” that, under Appendi v.  New Jersey, 530 U.S. 466 (2000), can be used to enhance a sentence without having the jury determine the existence of the prior conviction.

Charles Walker v. Kathy Griffin, 7th Circuit Court of Appeals No. 15-2147, 2016 WL 4501988, 8/29/16

Walker’s lawyer on his direct state appeal decided to challenge the reasonableness of Walker’s sentence, but he didn’t raise an issue about the sufficiency of the evidence to support applying an habitual offender enhancer to Walker. That failure didn’t constitute ineffective assistance of appellate counsel.