On Point: 36. Sentencing

State v. Bradley Wayne Phillips, 2014AP2519-CR, District 1, 9/1/15 (not recommended for publication); case activity (including briefs)

Phillips challenges his conviction for failing to pay child support because:  (1) the trial court prohibited testimony from an expert witness about whether Phillips was employable; (2) the postconviction court did not find Phillips’s defense counsel ineffective for allegedly failing to present a plea offer from the State; (3) the postconviction court denied Phillips a Machner hearing on his multiple other allegations of ineffective assistance of counsel; and (4) the postconviction court denied Phillips’ motion for resentencing.  The court of appeals rejects all of Phillips’s claims. 

State v. Sharod D. Weaver, 2015AP170-CR, District 3, 8/31/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Though the sentencing court made comments suggesting it mistakenly believed the OWI sentencing guidelines “don’t consider the four primary sentencing factors,” these comments don’t show the sentencing court actually believed that; rather, the court of appeals concludes, the sentencing court was saying that following the guidelines was not appropriate in Weaver’s case. Thus, the sentencing court didn’t misuse its discretion.

State ex rel. Christopher W. Baade v. Brian Hayes, 2015 WI App 71; case activity (including briefs)

Section 973.155(4) says that sentence credit granted to inmates serving sentences of one year or less in a county jail or a house of correction “shall include earned good time….” That language doesn’t apply to inmates who are placed on probation and given conditional jail time with good time because probation condition time isn’t a sentence.

State v. Steven Ray Gaddis, 2015AP130-CR, District 1, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Even the sentencing judge admitted his sentencing explanation “could have been more extensive” (¶10). But, hey, it was good enough for government work.

State v. Jesse L. Herrmann, 2015 WI 84, 7/15/15, afffirming an unpublished per curiam court of appeals decision; case activity (including briefs)

All seven justices agree Herrmann’s due process right to an impartial judge wasn’t violated in this case, as the sentencing judge’s remarks didn’t establish the judge was was objectively biased against Herrmann. Two separate concurrences consisting of four justices, however, express displeasure with (or attempt to limit, at least with respect to recusal) the objective bias test as established in previous Wisconsin and U.S. Supreme Court cases.

State v. Rogelio Guarnero, 2015 WI 72, 7/9/15, affirming a published court of appeals decision; majority by Roggensack; dissent by Bradley (joined by Abrahamson); case activity (including briefs)

In a decision that is short on analysis and long on Sixth Amendment problems, the supreme court holds that Guarnero’s prior conviction for conspiring to violate the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act was a conviction for a crime “under a statute … relating to controlled substances,” and therefore qualified as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c), because the factual basis for the conviction involved controlled substance offenses.

State v. Andrew Obriecht, 2015 WI 66, 7/7/15, reversing a published court of appeals decision; case activity (including briefs)

When sentence credit is granted after a convicted defendant’s parole is revoked, the additional credit must be applied to the parolee’s reincarceration time, and not—as the Department of Corrections and the court of appeals thought—to any period of parole remaining after the reincarceration time is served.

State v. Tommy Lee Branch, 2015 WI App 65; case activity (including briefs)

The circuit court had no authority to order cash seized from Branch on his arrest to be used to pay court obligations because there was no basis for concluding the money was not subject to return under § 968.20. As the court of appeals puts it, the cash Branch had at the time of his arrest was no different from any other personal property he had when arrested. “Had [Branch] been wearing a $200 Stetson hat, a $300 Gucci belt, or a pair of $500 Allen Edmonds shoes, the State would not be allowed to seize those items of personal property and sell them on eBay to pay Branch’s debts.” (¶10).

State v. John Eddie Farmer, Sr., 2014AP2623-CR, 6/30/15, District 1 (one-judge opinion, ineligible for publication); click here for docket and briefs

Defense lawyers encounter this problem too often. The circuit court inadequately explains the reasons for the sentence it imposed and then shores up its rationale at the postconviction stage. This decision holds that a circuit court, which failed to mention any sentencing objectives, nevertheless met Gallion’s “bare minimum requirements.” And even if it hadn’t, it wouldn’t matter because the court of appeals could search the record for reasons to affirm the sentence. Slip op. ¶14.

State v. Greenwood, 2014AP2219-CR,6 /30/15, District 3 (1-judge decision; ineligible for publication); click here for docket and briefs

Greenwood, who was convicted of several misdemeanors, sought resentencing on the grounds that the circuit court had relied on inaccurate information at the initial sentencing. Specifically, Greenwood alleged that the court believed his sentences would be served in  jail when, in fact, § 973.03(2) required that he serve his sentences in prison. The court  of appeals rejected this claim.