On Point blog, page 30 of 96
Appellate counsel not ineffective for failing to challenge habitual offender status
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.
Conviction for OWI 1st reversed and remanded for entry of conviction for OWI 3rd
State v. Ronald Marshall Jewett, 2015AP1014-CR, District 3, 8/30/16 (not recommended for publication); case activity (including briefs)
The question presented in this case is whether a certified driving record from the Wisconsin DOT is sufficient evidence to establish 2 prior OWI convictions in Minnesota–even though the original court records for those convictions no longer exist. The court of appeals says “yes.”
Circuit court can revisit expungement after sentencing if it erred in deferring decision at sentencing
State v. Armstrong, 2016AP97-CR, District 2, 8/17/16 (one-judge decision; ineligible for publication); case activity (including defendant’s brief; the state did not file a response brief)
While § 973.015 and State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811, require that expungement be decided at the time of sentencing, not put off till after the defendant completes the sentence, a circuit court has the power to decide expungement after sentencing when it erred in deferring, on its own accord, a defendant’s expungement request at the time of sentencing.
Exceeding sentencing guidelines wasn’t erroneous exercise of discretion
State v. Patrick P. Haynes, 2015AP2176-CR, District 3, 8/16/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court didn’t erroneously exercise its sentencing discretion by exceeding the OWI guidelines when sentencing Haynes for OWI 3rd after his probation for the offense was revoked.
Habeas relief granted because penalty enhancement statute is unconstitutionally vague
Walker Whatley v. Dushan Zatecky, 7th Circuit Court of Appeals No. 14-2534, 2016 WL 4269805, 8/15/16
The maximum penalty for Whatley’s drug possession conviction was dramatically increased—from 2-to-8 years to 20-to-50 years—under a now-repealed Indiana penalty enhancer for drug offenses committed within 1,000 feet of a “youth program center,” defined as a “building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs” for youth. (Sound familiar? Sure it does: see §§ 961.01(22) and 961.49(1m)(b)5.) On habeas review, the Seventh Circuit holds that the statute’s failure to provide an objective standard for determining what “regular” means makes the statute unconstitutionally vague, so Whatley is entitled to resentencing under the non-enhanced penalty scheme.
Defendant required to pay restitution for damage he didn’t directly cause
State v. Terry C. Craig, Jr., 2016AP177-CR, District 4, 8/11/16 (1-judge opinion, ineligible for publication); case activity (including briefs)
Craig struck and shattered the left tail light on an old car but he did not put a baseball-sized hole or a 2 inch crack on the left of it. That was preexisting damage. The circuit court ordered him to pay restitution for it any way, and the court of appeals affirmed.
Court of appeals instructs defense on grammar and punctuation, proper interpretation of 939.617 depends on it
State v. Markus S. Holcomb, 2016 WI App 70; case activity (including briefs)
“While sentence diagramming may be the bane of fifth graders everywhere, it is the trick of the trade in statutory construction.” Slip op. ¶9. “Punctuation too is important. . . . It can be the difference between ‘Let’s eat, Grandma!’ and ‘Let’s eat Grandma!'” ¶12. So begins today’s lesson on the proper way to read §939.617, which provides minimum sentences for certain child sex offenses.
Sentencing courts need not “parrot typical buzz words seen in sentencing transcripts;” implicit rationale is enough
State v. Danny F. Anton, 2015AP2336-CR, District 1, 8/2/16; (not recommended for publication); case activity (including briefs)
This decision openly thumbs its nose at Gallion. Between it and SCOW’s recent decision in State v. Salas Gayton you have to wonder whether Gallion has been overruled sub silentio.
Time spent confined for traffic offense sentence is excluded from 5-year repeater period
State v. Jason R. Cooper, 2016 WI App 63; case activity (including briefs)
While a conviction for a motor vehicle offense can’t be used to establish a defendant’s repeater status under § 939.62, time a defendant spent in custody serving a sentence for a motor vehicle is still excluded when computing whether any prior convictions for non-motor vehicle offenses occurred within five years of the crime for which the defendant is being sentenced.
Judge’s inaccurate, ex parte internet research results in new sentencing hearing
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.