On Point: 36. Sentencing

Review of a published court of appeals decision; case activity

Issue:  Whether under § 973.015 the circuit court has the discretion to withhold its decision on expungement until after the defendant completes probation?

Wis. Stat. § 973.015 authorizes the circuit court to expunge the record of a defendant under the age of 25 in certain situations. Matasek says the statute gives the circuit court discretion to defer its expunction decision until after the offender successfully completes probation.

State v. Ericka S. Thomas, Appeal No. 2013AP341-CR; District 1; 11/13/13 (not recommended for publication); case activity

This is a split decision over the proper application of § 973.20, the restitution statute.  The circuit court convicted Thomas of Medicaid fraud, sentenced her to imprisonment, and ordered her to pay $356, 366.33 (the total amount she and accomplices stole) in restitution.  At sentencing, her lawyer described her “extremely limited earning ability,” a statement bolstered by her PSI. 

The Sentencing Law and Policy blog (an affiliate of the law professor blogs network) tees up the issue nicely.  Their post is pasted in below.

When and how will SCOTUS take up Miller retroactivity issues?

The question in the title of this post is promoted by this local piece reporting on reactions to the Pennsylvania Supreme Court’s decision last week (reported here) that its state teens given mandatory LWOP before the US Supreme Court’s Miller ruling should not get any retroactive benefit from that decision.

State v. Earnest Lee Nicholson, 2013AP722-CR, District 1, 10/29/13; court of appeals decision (1-judge; ineligible for publication); case activity

Nicholson was arrested for felony battery of his girlfriend, Marnice Franklin, but the battery charge was dismissed after Franklin failed to appear to testify at trial; Nicholson was also charged with resisting an officer, and that charge proceeded to trial and a guilty verdict. (¶¶2-4). At sentencing on the resisting charge the judge made extensive remarks concerning the alleged battery,

Question presented:

Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.

Lower court opinion: Hall v. State, 109 So.3d 704 (Fla. 2012)

Docket

Scotusblog page

Atkins v. Virginia, 536 U.S. 304 (2002), held that it is unconstitutional under the Eighth Amendment to execute a person who is found to be mentally retarded.

Question presented:

Whether a defendant-who has fraudulently obtained a loan and thus owes restitution for the loan under 18 U.S.C. § 3663A(b)(1)(B) returns “any part” of the loan money by giving the lenders the collateral that secures the money?

Lower court opinion: United States v. Robers, 698 F.3d 937 (7th Cir. 2012)

Docket

Scotusblog page

In this case the Court will resolve a circuit split about the calculation of restitution under 18 U.S.C.

State v. Rodney Vincent McToy, 2013AP832-CR, District 1, 10/15/13, (1-judge; ineligible for publication); case activity

McToy pled guilty to two charges of misdemeanor bail jumping stemming from a domestic dispute with Ms. H. The parties briefed a straightforward Gallion issue:  Did the Milwaukee County Circuit Court erroneously exercise its discretion when it failed to provide a “rational and explainable basis” for the sentence it imposed—200 days in jail for one count and 2 years probation for the other?

State v. David J. Lawrence, 2013AP796, District 4, 10/10/13; court of appeals decision (1-judge, ineligible for publication); case activity

The circuit court knew of Lawrence’s mental health diagnoses at sentencing, but after sentencing Lawrence was hospitalized after a psychological breakdown. (¶¶3-4). He requested sentence modification, arguing the court was not aware of all his diagnoses or his medication regimen. (¶5). Assuming that information was a “new factor,” the circuit court gave a reasoned explanation for why it declined to modify the sentence,

State v. Ali Mursal, 2013 WI App 125; case activity

Before accepting a defendant’s guilty or no contest plea the court is required to advise the defendant there may be immigration consequences. Wis. Stat. § 971.08(1)(c). While that statute prescribes a text for the required warning—complete with quotation marks—the court of appeals holds in this case that a judge’s failure to repeat that language verbatim is not by itself grounds for plea withdrawal.

State v. Deris Huley, 2013AP682, 9/26/13 (1-judge ineligible for publication); case activity

It’s not often the court of appeals rules against the State.

 Huley pled no contest to a misdemeanor hit and run of an attended vehicle, as a repeater. See §346.74(5)(a).  The State sought restitution in the amount of $4,064.83 for the victim’s personal injuries.  Noting that “restitution is the rule and not the exception” and that “the victim need only show that the defendant’s actions were the precipitating cause of the injury and that [the injury] was the natural consequence of the actions,” the court of appeals nevertheless affirmed the denial of restitution.