On Point: 36. Sentencing

Review of a published court of appeals decision; case activity (including briefs)

Issues:

In State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, this Court held that circuit courts may not consider an expunged record of conviction, but may consider the facts underlying an expunged record of conviction at sentencing. Did the circuit court violate Leitner when it considered at sentencing that Mr. Allen had an expunged conviction and served a term of probation?

Was trial counsel ineffective for failing to object to the references to Mr. Allen’s expunged conviction in the pre-sentence investigation and at sentencing?

State v. Lazeric R. Maxey, 2015AP2137-CR, 4/6/16, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Maxey isn’t entitled to credit on time he spent in custody relating to two cases for which he’s serving consecutive sentences because he hasn’t shown the credit wasn’t given on the earlier-imposed sentence.

Lester Ray Nichols v. United States, USSC No. 15-5238, 2016 WL 1278473, (April 4, 2016), reversing United States v. Nichols, 775 F.3d 1225 (10th Cir. 2014); Scotusblog page (including links to briefs and commentary)

In a unanimous opinion of limited impact, the Supreme Court holds that a prior version of SORNA did not require a registered sex offender to notify his state registration authority before moving out of the country.

Review of a published court of appeals decision; case activity (including briefs)

Issue (composed by On Point):

Does the constitutional prohibition against ex post facto laws bar the mandatory imposition of a DNA surcharge for a single felony conviction based on conduct that was committed before the mandatory DNA surcharge requirement took effect?

David Conrad v. United States, 7th Circuit Court of Appeals No. 14-3216, 3/4/16

Peugh v. United States, 133 S. Ct. 2072 (2013), held that the ex post facto clause prohibits a sentencing court from using a Sentencing Guideline in effect at the time of sentencing instead of the Guideline in effect at the time of the offense if the new version of the Guideline provides a higher applicable sentencing range than the old version. The Seventh Circuit holds Peugh shouldn’t be applied retroactively to allow resentencing in a case that was final before Peugh was decided.

State v. Gavin S. Hill, 2016 WI App 29; case activity (including briefs)

The court of appeals holds that the standards for alleging and applying the ordinary repeater enhancer under § 939.62 also govern the domestic abuse repeater enhancer under § 939.621. Thus, the state must either prove that the defendant was convicted of the required predicate offenses or the defendant must admit that he was convicted of those offenses.

State v. Anthony R. Owens, 2016 WI App 32; case activity (including briefs)

The circuit court properly admitted the victim’s statements about who shot him under the dying declaration exception to the hearsay rule, and the admission of the victim’s statements didn’t violate the Confrontation Clause.

State v. Jason D. Henderson, 2015AP1740-CR, District I, 3/1/16 (1-judge decision; ineligible for publication); case activity (including briefs)

Henderson pled to two misdemeanor repeaters. He now seeks to withdraw his plea on the ground that counsel was ineffective for misinforming him that the two-year maximum sentence on each count was divided into one year of initial confinement and one year of extended supervision, rather than the correct 18 month/6 month split. 

City of Milwaukee v. D.S., 2015AP1634, 2/2/16, District 1 (one-judge opinion; ineligible for publication); case activity

D.S., a juvenile, was ordered to register as a sex offender for life. On appeal, he argued that the circuit court relied on two types of inaccurate information: (1) a report, prepared by Dr. Paul Hesse, regarding the recidivism rate for juvenile sex offenders at Lincoln Hills, and (2) misinformation about the meaning of D.S.’s JSOAP-II scores.  He lost on both counts.

Montgomery v. Louisiana, USSC No. 14-280, 2016 WL 280758 (January 25, 2016); reversing and remanding State v. Montgomery, 141 So.3d 264 (La. 2014); Scotusblog page (includes links to briefs and commentary)

In Miller v. Alabama, 132 S.Ct. 2455 (2012), the Court held that sentencing laws mandating life without parole violate the Eight Amendment’s prohibition on cruel and unusual punishments with respect to those under age 18 at the time of their crimes; here the Court holds that Miller announced a new substantive rule that is retroactive on state collateral review.