On Point blog, page 47 of 95
Request for maximum sentence by police officers who were also victims did not breach plea agreement
State v. London Mack Stewart, 2013 WI App 86; case activity
Stewart was convicted of reckless injury, reckless endangerment, and felon in possession after he shot at and injured a police officer executing a warrant at a home where Stewart was staying. (¶2). Under the plea agreement the state agreed to recommend a “global” 25-year sentence (15 in, 10 out); the state did so, but the injured officer,
U.S. Supreme Court: Ex Post Facto Clause limits application of new federal sentencing guidelines
Marvin Peugh v. United States, USSC No. 12-62, 6/10/13
United States Supreme Court decision, reversing United States v. Peugh, 675 F.3d 736 (7th Cir. 2012)
Resolving a split between federal circuit courts, the Supreme Court holds that a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing instead of the Guidelines in effect at the time of the offense,
Wisconsin Supreme Court: Sentencing based on inaccurate information is not structural error, but mistake about mandatory minimum penalty in this case was not harmless
State v. Lamont L. Travis, 2013 WI 38, affirming published court of appeals decision, 2012 WI App 46, 340 Wis. 2d 639, 813 N.W.2d 702; case activity
¶9 The question of law presented to this court is whether a circuit court’s imposition of a sentence using inaccurate information that the defendant was subject to a mandatory minimum five-year period of confinement is structural error or subject to the application of harmless error analysis….
Court must decide at the time of sentencing whether a conviction may be expunged under § 973.015(1)(a)
State v. Andrew J. Matasek, 2013 WI App 63, petition for review granted, affirmed, 2014 WI 27; case activity
The plain language of § 973.015 requires the circuit court to decide at the time of sentencing whether the defendant’s conviction can be expunged on successful completion of the sentence:
¶9 Matasek is correct that Wis.
Ineffective assistance of counsel — failure to object to or present evidence. Sentencing — exercise of discretion
State v. Danny F. Anton, 2012AP1165-CR, District 2, 4/23/13; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of counsel
In a fact-specific discussion that precludes summary here, the court of appeals holds Anton’s trial attorney was not ineffective for: failing to object to testimony about telephone calls between Anton and a detective, as the evidence was not prejudicial (¶¶10-13);
OWI — the penalty language of § 346.65(2)(am)6. does not require the court to impose a bifurcated sentence
State v. Clayton W. Williams, 2013 WI App 74, petition for review granted 11/21/13; reversed, 2014 WI 64, 7/15/14; case activity
Wisconsin Stat. § 346.65(2)(am)6. makes OWI 7th, 8th, or 9th a Class G felony, but also provides that “[t]he confinement portion of a bifurcated sentence imposed on the person under s. 973.01 shall be not less than 3 years.”
Wisconsin Supreme Court holds counsel in merit appeal may refer to PSI without asking permission from any court
In the Matter of State v. Michael Buchanan: State ex rel. Office of State Public Defender v. Wis. Court of Appeals, District IV, 2013 WI 31, on review of petition for supervisory writ; case activity
In an important decision for all lawyers who handle criminal cases in the state appellate courts, the supreme court affirms that counsel for the defendant and the state do not need permission from a court to use,
Restitution for damage to stolen van that is later used to commit robberies
State v. Devante J. Lumpkins, 2012AP1670-CR, District 1, 4/2/13; court of appeals decision (not recommended for publication); case activity
Lumpkins is liable for restitution for damage to a stolen van he and two co-defendants (“The Jack Boys”) used to commit two armed robberies, even though Lumpkins was not charged with or convicted of the theft of the van. Restitution requires that there be a “direct victim” of the crime and a causal connection between the defendant’s conduct and the claimed damages (¶7),
OWI — conviction for “first” offense must be vacated where defendant has prior OWIs despite delay in moving to vacate conviction and even though priors were from another state
Clark County v. Rex A. Potts, 2012AP2001, District 4, 3/28/13; court of appeals decision (1-judge, ineligible for publication); case activity
Potts’s 1996 conviction for OWI in violation of a county ordinance is void and must be vacated because defendant had prior convictions for operating while intoxicated—even though Potts did not move to vacate the judgment until 2012 and even though the prior convictions were from Massachusetts.
The circuit court rejected Potts’s motion for relief from the 1996 judgment because of his delay in bringing the motion,
Miranda violation — interrogation by police; sentencing — erroneous exercise of discretion
State v. Antoine Leshawn Douglas, 2013 WI App 52; case activity
Miranda violation — interrogation by police
After a lawful arrest, but before being given Miranda warnings, Douglas initiated a conversation with the arresting officer in which he stated he wanted “to work” for the police by offering information about some marijuana dealers. After the officer declined that offer there was a “pause,” followed by Douglas changing the subject and volunteering information about a gun;