On Point: 36. Sentencing

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.

State v. Guadalupe Ronzon, 2015AP498, 1/26/16, District 1 (one-judge decision; ineligible for publication); case activity

Ronzon challenges the restitution award in her conviction of failing to fulfill her Wis. Stat. § 346.67 duty upon striking a vehicle with her car.

Kansas v. Carr, USSC Nos. 14-449, 14-450, 14-452, 2016 WL 228342 (January 20, 2016); reversing and remanding Kansas v. (Jonathan) Carr, 329 P.3d 1195 (Kan. 2014), Kansas v. (Reginald) Carr, 331 P.3d 544 (Kan. 2014), and Kansas v. Gleason, 329 P.3d 1102 (Kan. 2014); Scotusblog page (includes links to briefs and commentary)

The Eighth Amendment does not require courts to instruct the jury deciding whether to impose the death penalty that the defendant does not have to prove mitigating circumstances beyond a reasonable doubt.

State v. Mustafa Z. Abdel-Hamid, 2015AP1517-CR, 1/20/16, District 1 (1-judge opinion, ineligible for publication); case activity, including briefs

After being convicted of two counts of misdemeanor criminal damage to property, the defendant urged the court to grant expungement under Wis. Stat. §973.015. He pointed to his lack of criminal record, his excellent grades, his professional ambitions, and his remorse. The trial court denied expungement and the court of appeals affirmed.

Question presented:

Whether a predicate prior conviction under the Armed Career Criminal Act must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense.

As we wait on SCOW to decide the petition for review on State v. Scruggs, ASPD Peter Heyne offers some news and thoughts on DNA surcharges. On January 7, 2016, the court of appeals rejected a no-merit report in State v. Jeffrey J. Wickman noting that neither State v. Radaj nor State v. Scruggs “squarely addresses whether a mandatory DNA surcharge is appropriate in circumstances where the defendant has previously submitted a DNA sample. Rather, at this time, it remains an open question whether a mandatory DNA surcharge is punitive in effect when applied to a defendant who previously gave a DNA sample or paid a surcharge.” (Wickman at 6-7).