On Point: 36. Sentencing

Bernard McKinley v. Kim Butler, 7th Circuit Court of Appeals Case No. 14-1944, 1/4/16

McKinley failed to raise an Eighth Amendment claim in his state court challenges to the sentence he received for a murder he committed at the age of 16. That means he procedurally defaulted the claim for purposes of his federal habeas challenge to the sentence. But instead of affirming the district court’s dismissal of McKinley’s habeas petition, a majority of this Seventh Circuit panel stays the habeas proceeding and, based on reasoning that could be useful to other juveniles seeking to challenge long sentences, gives McKinley a chance to go back to state court to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012).

State v. Frank E. Pilarski, 2015AP425, District 2, 12/23/15 (not recommended for publication); case activity (including briefs)

Pilarski sexually assaulted a child in his in-home day care; the court of appeals upholds a restitution award for the child’s mother’s reduced work hours necessitated by her unwillingness to use any other in-home day care after the assaults.

State v. Stephen Toliver, 2014AP2939-CR, 12/15/15, District 1 (not recommended for publication);case activity

Here, in Wisconsin’s very own Jarndyce v. Jarndyce, the court of appeals upholds the denial of Toliver’s motion to withdraw his guilty plea, the circuit court’s refusal to vacate his felony murder plea, and the circuit court’s denial of his ineffective assistance of counsel claim.

State v. David Aaron Piggue, Jr., 2016 WI App 13; case activity (including briefs)

Under State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, ¶¶14-18, 25-27, 606 N.W.2d 155, a defendant is entitled to sentence credit for time in custody on charges that are dismissed and read-in for sentencing purposes. The court of appeals declines to extend Floyd to require credit for time the defendant was in custody on a charge for which he was acquitted, even though the acquitted conduct is used by a judge to fashion a sentence for a different crime.

UW Law Professor Cecilia Klingele just published “The Promises and Perils of Evidence-Based Corrections” in the Notre Dame Law Review. The article lays out the history of corrections reform, the emergence of evidence-based practices (including actuarial risk assessments), and cautions policymakers and practitioners about the potential for misuse of them. Click here to read the full article.

As it happens, SCOW has accepted review of a case that challenges the use of COMPAS assessments at sentencing.

GannettWisconsin.com has posted an extensive study of sentencing in Wisconsin during 2005-2014. Click here for “Scales of Justice or Roulette Wheel?” Investigative reporters extracted data from CCAP and created searchable databases that allow the user to see: (1) on a scale of 1 to 10 how harshly a particular judge sentences for certain crimes compared to other judges in his/her county and in the state, (2) the average sentences imposes for certain types of crime,

State v. Christopher Joseph Allen, 2015 WI App 96, petition for review granted 4/7/16, affirmed, 2017 WI 7; case activity (including briefs)

How often does SCOW issue unanimous decisions for the defense these days? Not too often. So you’d think that after being reversed 7-0 in State v. Hemp, District 1 might approach §973.015, with a “once bitten, twice shy” mindset. But with this published decision, D1 seems more determined to rein in Wisconsin’s expunction statute.

State v. Tiron Justin Grant, 2014AP2965-CR, District 1, 11/24/2015 (not recommended for publication); case activity (including briefs)

The court serially takes up and rejects each of Grant’s challenges to his conviction, at trial, of possessing cocaine with intent to deliver, as well as the sentencing court’s denial of ERP/SAP and CIP eligibility.

Question presented:

Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided.

On review of a court of appeals certification; case activity

Issue (from certification)

Does a defendant’s right to due process prohibit a circuit court from relying on COMPAS assessments when imposing sentence, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account.