On Point: 36. Sentencing

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).

Professor Murat Mungen, Florida State University College of Law, just published this article explaining how expunging a person’s criminal record reduces the chances that he will reoffend.

State v. Joseph C. Risse, 2015AP586, District 3, 1/12/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Risse pled to an OWI, but was it his first or second? The state, armed with a Wisconsin Certified Driving Record, says he had a 2008 chemical test refusal in Connecticut. Risse, bearing a collection of documents from Connecticut and elsewhere, submits that they prevent the state from showing the prior beyond a reasonable doubt.

Hurst v. Florida, USSC No. 14-7505, 2016 WL 112683 (January 12, 2016); reversing and remanding Hurst v. State, 147 So.3d 435 (Fla. 2014); Scotusblog page (includes links to briefs and commentary)

In Florida the jury makes a recommendation as to whether to impose the death penalty, but the judge then holds a separate sentencing hearing and decides whether there are sufficient aggravating circumstances to justify the death penalty. This sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” (Slip op. at 1).

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.