On Point blog, page 42 of 96
SCOW: Circuit courts must decide expunction at sentencing
State v. Andrew J. Matasek, 2014 WI 27, 5/23/14, affirming a published court of appeals decision; case activity
Section 973.015 provides that a circuit court “may order at the time of sentencing that the record be expunged upon successful completion of the sentence . . .” SCOW now clarifies that a court must decide expunction at sentencing. Circuit court practices varied, so this decision clarifies the law and sets the stage for (possibly) a bigger battle over Wisconsin’s expunction statute.
Police didn’t violate Fifth or Sixth Amendment in taking statement of defendant cited for forfeiture offense
State v. Thaddeus M. Lietz, 2013AP1283-CR, District 3, 5/20/14 (1-judge; ineligible for publication); case activity
Leitz’s statements to police were not obtained in violation of either the Fifth or Sixth Amendment, so the circuit court properly denied his suppression motion.
Stalking statute was not unconstitutional as applied to defendant; letters on which stalking convictions were based constituted a “true threat”
State v. Donald W. Maier, 2013AP1391-CR, District 4, 5/8/14 (not recommended for publication); case activity
The First Amendment did not preclude prosecuting Maier for stalking based on letters he sent because the letters constituted a “true threat” and thus were not protected speech.
SCOTUS: Surrendering collateral to fraudulently obtained loan is not a return of property entitling defendant to offset of restitution under MVRA
Robers v. United States, USSC No. 12-9012, 5/5/14, affirming United States v. Robers, 698 F.3d 937 (7th Cir. 2012); Scotusblog page (includes links to briefs and case commentary); On Point’s previous coverage.
Where a defendant is ordered to pay restitution under the Mandatory Victim Restitution Act (MVRA), the amount of restitution may be reduced by the value of “any part of the property that is returned” to the victim. The Supreme Court holds that a a defendant convicted of fraudulently obtaining a loan does not return part of the property to the defrauded lender when the lender takes title to the collateral securing the loan. Therefore, restitution is not reduced by the fair market value of the collateral at the time the lender took title.
Federal racketeering conviction counts as prior drug offense under § 961.41(3g)(c)
State v. Rogelio Guarnero, 2014 WI App 56, petition for review granted 11/14/14, affirmed, 2015 WI 72; case activity: 2013AP1753-CR; 2013AP1754-CR
Guarnero’s conviction for violating 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 predicate acts of racketeering involved, among other things, controlled substance offenses.
SCOTUS: Single possessor of child porn can’t be ordered to pay restitution for victim’s losses due to trafficking in her images by others
Paroline v. United States, USSC No. 12-8561, 4/23/14, vacating and remanding In re Amy Unknown, 701 F.3d 749; Scotusblog page (includes links to the briefs and case commentary)
Resolving a split among federal circuit courts about how to determine restitution in child pornography cases under 18 U.S.C. § 2259, the Supreme Court holds that where a defendant possessed images of a victim who suffered losses from the continuing traffic in the images, but it is impossible to trace a particular amount of the losses to the individual defendant, a court should order restitution “in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” (Slip op. at 21).
State proved defendant made valid waiver of right to counsel in prior OWI case
State v. Casey D. Schwandt, 2013AP2775-CR, District 2, 4/23/14 (one judge; ineligible for publication); case activity
Schwandt’s knowledge about both the role attorneys play and their specialized training showed he made a valid waiver of counsel in a prior OWI case, despite his claim he was unaware of what an attorney could do for him in the particular case in which he waived counsel.
Sentencing court’s “assumption” that defendant acted with intent to kill victim was not inaccurate information
State v. Jameil A. Garrett, 2013AP1178-CR & 2013AP1179-CR, District 2, 4/23/14 (not recommended for publication); case activity: 2013AP1178-CR; 2013AP1179-CR
The circuit court did not sentence Garrett based on an “unwarranted assumption” that Garrett acted with intent to kill the victim of a strangulation offense. Thus, Garrett is not entitled to a new sentencing hearing.
Samuel James Johnson v. United States, USSC No. 13-7120, cert. granted 4/21/14
Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act?
Circuit court can’t order condition of supervision that restricts operating privileges in excess of the period set under § 343.30
State v. Jack E. Hoppe, 2014 WI App 51; case activity
A sentencing court may not prohibit a defendant convicted of OWI from driving a motor vehicle as a condition of extended supervision when the length of extended supervision exceeds the maximum period for revoking operating privileges set by § 343.30.