On Point blog, page 3 of 97
COA addresses dual sentence credit when imposed and stayed sentence is lifted in case recommended for publication.
State v. Scott R. Dachelet, 2023AP970, 6/25/25, District II (recommended for publication); case activity
Wisconsin’s seemingly straightforward sentence credit statute – Wis. Stat. § 973.155(1)(a) – is required to accommodate an infinite variety of scenarios. Here, the COA addressed whether a defendant is entitled to sentence credit on a withheld sentence where probation was revoked while also receiving credit for an imposed and stayed sentence that was revoked. Because lifting the stay on the imposed and stayed sentence severed the connection between the defendant’s custody and the case for which his sentence was withheld, the Court found that he was not entitled to dual sentence credit.
Defense Win: COA finds exception to potential jurisdictional defect and reverses order denying early releasing following SAP completion
State v. Benny Burgos, 2024AP1497-CR, 6/3/25, District I (not recommended for publication); case activity
In an interesting appeal presenting questions of statutory construction and appellate jurisdiction, COA uses principles of equity to reach the merits and reverses in Burgos’s favor.
COA holds that allocution statements are admissible following plea withdrawal
State v. Daniel J. Rejholec, 2023AP2192-CR, 5/28/25, District II (recommended for publication); petition for review granted 5/20/26, case activity
In a consequential appeal, COA holds that allocution statements are admissible evidence after a plea has been withdrawn.
Defense Win: No causal nexus for restitution based on charges of harboring or aiding a felon
State v. Daecorion J. Robinson, 2022AP2087-CR, 5/28/25, District I (not recommended for publication); case activity
In a rare “causal nexus” win, 2 judges in D1 agree that the circuit court’s order was infirm. Under the text of the restitution statute, Robinson’s aiding a felon does not make him liable for the consequences of that felon’s underlying criminal conduct.
COA: Circuit court may use defendant’s federal disability payments to assess ability to pay restitution.
State v. Eric J. Joling, 2023AP1023-CR, 12/11/24, District II (recommended for publication); case activity
Federal law prohibits subjecting social security disability insurance payments (SSDI) to “execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. § 407(a). In a decision recommended for publication, the Court of Appeals held that a circuit court may nevertheless use a defendant’s SSDI payments to calculate the ability to pay restitution.
COA upholds restitution award and denial of postconviction IAC claim
State v. Lynetta Lake, 2024AP115-CR, 11/12/24, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
Lake pleaded guilty to negligent operation of a motor vehicle and hit and run of an attended vehicle. Following a hearing, the circuit court ordered restitution. Lake filed a postconviction motion alleging ineffective assistance of counsel for failing to call two witnesses during the restitution hearing.
Split decision from COA on challenge to IID condition of probation
State v. Thatcher R. Sehrbrock, 2022AP2153-CR, 8/8/24, District IV (authored); case activity
Sehrbrock, convicted of robbery with use of force as PTAC, appeals the judgment of conviction and order denying his postconviction motion in which he challenged a condition of probation requiring that an ignition interlock device be installed on any motor vehicle that he owns or operates. He argued that the IID condition was unreasonable and its term was harsh and excessive. The COA affirms in a 2-1 decision.
SCOTUS requires jury to find whether prior offenses occurred on different occasions to enhance sentence under Armed Career Criminal Act
Erlinger v. United States, USSC No. 23-370, June 21, 2024, vacating United States v. Erlinger, 77 F.4th 617 (7th Cir. 2023); Scotusblog page (with links to briefs and commentary)
Whether offenses committed on three “occasions different from one another” for purposes of federal Armed Career Criminal Act must be found by a jury beyond a reasonable doubt.
Defense Win! Defendant entitled to hearing to determine eligibility for SAP/CIP
State v. Les Paul Henderson, 2023AP2079-CR, 5/31/24, District IV (not recommended for publication); case activity
Although Henderson fails to persuade COA that a JOC making him eligible for early release programming controls, he does live to fight another day given COA’s order that he receive a hearing at which time the circuit court will have to exercise its discretion to determine his eligibility.
COA rejects erroneous exercise of discretion claim and affirms sentencing court’s imposition of prison sentence instead of probation
State v. Zackery J. Olson, 2023AP369-CR, 5/22/24, District II (1-judge opinion, not eligible for publication); case activity
Olson’s erroneous exercise of discretion claim regarding the court’s decision to impose a prison sentence instead of probation fares about as well as you would expect. The court of appeals reviews and details the record supporting the court’s decision and affirms because Olson failed to meet his burden to prove the sentencing court erred.