On Point blog, page 46 of 96
Lack of colloquy regarding waiver of counsel in prior OWI case does not make prima facie showing for collateral attack
State v. Glen G. Bowe, 2013AP238-CR, District 3, 9/17/13; court of appeals decision (1-judge; ineligible for publication); case activity
The lack of any colloquy regarding Bowe’s waiver of his right to counsel when he pled in his prior OWI case does not by itself make the prima facie showing necessary for a collateral attack on the prior conviction because State v. Ernst,
Ineffective assistance of counsel — failure to demand speedy trial, communicate with defendant, and impeach the victim. Sentencing — unduly harsh sentence.
State v. Jerry Lee Carson, 2012AP2616-CR, District 1, 9/17/13; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of trial counsel
Carson, convicted of second degree recklessly endangering safety, claimed his trial lawyer was ineffective on various grounds. The court of appeals holds counsel was not ineffective for failing to:
- Demand a speedy trial. Carson was not prejudiced by the delay beyond the statutory speedy trial deadlines.
Another unpublished decision holds enhancer time may be used for the extended supervision portion of an enhanced misdemeanor sentence
State v. Emmit L. Groce, Jr., 2013AP844-CR, District 1, 9/4/13; court of appeals decision (1-judge; ineligible for publication); case activity
Groce was convicted of criminal damage to property as a repeat offender under § 939.62(1)(a) and given a bifurcated sentence consisting of one year of confinement in prison and one year of extended supervision. (¶¶2-3). He later requested a sentence modification under State v. Gerondale,
Restitution for theft may include items defendant denies stealing
State v. Deborah A. Schicker, 2013AP651-CR, District 2, 8/21/13; court of appeals decision (1-judge; ineligible for publication); case activity
Schicker pleaded guilty to a single count of theft. Of the multiple items listed as stolen in the complaint, she admitted to taking only the two items recovered before she was charged. (¶¶2-3). After a restitution hearing she was ordered to pay for the loss of the unrecovered items as well as for another item (a bracelet) not even listed in the complaint.
OWI — collateral attack on prior conviction; awareness of minimum penalty
State v. Jaime M. Salomon, 2013AP577-CR, District 2, 8/21/13; court of appeals decision (1-judge; ineligible for publication); case activity
Salomon collaterally attacked his second OWI conviction under State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, arguing his waiver of counsel in the case was invalid because he was not aware of the minimum mandatory penalty for the offense. The transcript of the plea hearing in the prior case shows Salomon admitted to having read the complaint,
Sentencing — exercise of discretion in denying eligibility for ERP
State v. Brandon M. Pokey, 2012AP2412-CR, District 2, 8/14/13; court of appeals decision (not recommended for publication); case activity
The sentencing court did not erroneously exercise its discretion when it made Pokey, who was convicted of armed robbery of a bank, ineligible for the Earned Release Program. At sentencing the court based its decision on all of the required sentencing factors, not just on the seriousness of the offense,
Yet another take on how to structure bifurcated sentences for an enhanced misdemeanor
State v. Gabriel Griffin, 2012AP2631-CR, District 1, 7/30/13; court of appeals decision (1-judge; ineligible for publication); case activity
Agreeing with State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App Nov. 3, 2009) (unpublished), and State v. Ash, No. 2012AP381-CR (Wis. Ct. App. Aug. 15, 2012) (unpublished), that there is a conflict in § 973.01 which affects the structure of enhanced misdemeanor sentences,
Enhancer time may be added to extended supervision portion of bifurcated sentence for misdemeanor enhanced under § 939.62
State v. Shawn J. Robinson, 2012AP2498-CR, District 1, 7/23/13; court of appeals decision (1-judge; ineligible for publication); case activity
Robinson was convicted of two misdemeanors which were enhanced under the repeater statute, § 939.62(1)(a). He was sentenced on each count to bifurcated sentences consisting of one year of confinement and one year of extended supervision. (¶¶2-4). He later challenged the sentences under State v.
SCOW says circuit courts lack inherent authority to order destruction of inaccurate PSI
State v. Melton, 2013 WI 65, reversing published court of appeals decision; case activity; opinion by Justice Prosser; concurrence by Justice Ziegler and joined by Chief Justice Abrahamson and Justice Bradley
Melton pled guilty to 2 felonies, and the court ordered a PSI for sentencing. Turns out the PSI contained errors (info re uncharged offenses), so the court ordered a 2nd PSI and the destruction of the 1st PSI.
Doyle Randall Paroline v. United States, USSC No. 12-8561, cert granted 6/27/13
What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. § 2259?
Lower court opinion: In re: Amy Unknown: United States v. Paroline, 701 F.3d 749 (5th Cir. 2012)
This is an important case for anyone handling federal possession of child pornography cases,