On Point: 36. Sentencing

State v. Patricia A. Enriquez, 2015AP1850-CR, District 2, 7/27/16 (not recommended for publication); case activity (including briefs)

After Enriquez made a statement at her sentencing for delivering nonnarcotic controlled substances, the sentencing judge presented the parties with information he had uncovered based on his own internet searches. He claimed the information showed that Enriquez’s misrepresented facts about her nursing license status in Texas and Illinois. Finding that Enriquez’s character for honesty was “miserable” based in part on this ex parte research, the judge sentenced her to consecutive terms of sixty-six months’ imprisonment, far beyond what the state had recommended. But the information the judge dredged up was inaccurate, and because the court relied on that misinformation in sentencing her, Enriquez is entitled to be resentenced.

United States v. Billy J. Robinson, Jr., 7th Circuit Court of Appeal Case No. 15-2019, 2016 WL 3947808, 7/22/16

A federal district judge’s sentencing comments “strayed so far from the record” that the Seventh Circuit Court of Appeals “cannot trace the (legitimate) reasons for Robinson’s sentence” and therefore Robinson is entitled to resentencing.

State v. Pagenkopf, 2015AP1855-CR, 7/21/16, District 4 (1-judge opinion, ineligible for publication); case activity  (including briefs)

Per §973.20(13)(c)4, a court commissioner held a hearing and submitted proposed findings of fact and conclusions of law recommending that Pagenkopf pay $19,274.69 in restitution. Pagenkopf sought de novo review via §757.69(8), which provides that a “decision” by a court commissioner shall be reviewed by the circuit court upon the motion of any party.  According to the court of appeals, §757.69(8) does not apply to a commissioner’s restitution findings.

State v. Mark G. McCaskill, 2015AP1487-CR, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

McCaskill’s challenges to his arrest and conviction for operating with a prohibited alcohol content don’t persuade the court of appeals.

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..

State v. Patrick H. Dalton, 2016AP6-CR,7/20/16, Distrct 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

The court of appeals here holds that Dalton is entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing move to suppress the test results from a warrantless blood draw. The record contains no evidence that exigent circumstances existed a la Missouri v. McNeely, and the officer who ordered the draw gave no indication that he ever considered seeking a warrant.

State v. Eric L. Loomis, 2016 WI 68, 6/13/06, on certification from the court of appeals, case activity (including briefs)

The developer of COMPAS says that he didn’t design it to be used in sentencing, and he won’t disclose its “trade secret” algorithm. See Pro Publica interview here. But in a 7-0 decision (with 2 concurrences) SCOW holds that if used properly, observing certain “limitations and cautions,” a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. Slip op. ¶8.

State v. Leopoldo R. Salas Gayton, 2016 WI 58, 7/6/16, affirming an unpublished court of appeals opinion, 2014 WI App 120, 358 Wis. 2d 709, 856 N.W.2d 345; case activity (including briefs)

SCOW took this case to address “whether a sentencing court may rely on a defendant’s illegal immigrant status as a factor in fashioning a sentence.” See here. In a 6-0 decision, the answer, at least on the facts of this case, is that a Wisconsin court may sentence a defendant more harshly because he is an “illegal alien.” The concurrence by Justice A.W. Bradley provides guidance to lower courts and defense attorneys about how to handle immigration status at sentencing.

The countdown to SCOW’s final decision this term continues. As of today, there are 9 to go, with 3 scheduled to be released on Wednesday July 6th. One particular case is attracting a lot of national attention: State v. Loomis, which concerns a circuit court’s ability to rely on COMPAS assessments when imposing a sentence. In […]

State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)

The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him.