On Point blog, page 49 of 97
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State v. Danny F. Anton, 2012AP1165-CR, District 2, 4/23/13; court of appeals decision (not recommended for publication); case activity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State v. Devante J. Lumpkins, 2012AP1670-CR, District 1, 4/2/13; court of appeals decision (not recommended for publication); case activity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;
Ineffective assistance of counsel; “new factor” based sentence modification
State v. Stephen Lehman, 2011AP2821-CR, District I (not recommended for publication). Case activity.
Lehman pled guilty to 2 counts of burglary of a dwelling. The trial court sentenced him to 5 years of initial confinement and 3 years of extended supervision for each count. The court ran the sentences consecutively, ordered Lehman to pay $1,700 in restitution, and declared him ineligible for the Challenge Incarceration and Earned Release programs.
OWI – reopening case improperly treated as a first offense
State v. James A. Krahn, 2012AP1898-CR, District 2, 1/30/13; court of appeals decision (1-judge, ineligible for publication); case activity
Motion to dismiss second-offense OWI charge was properly denied, where the charge resulted from the state’s successful motion to reopen a conviction for a first offense that had been entered a few weeks after a conviction in another case that was also treated as a first offense:
¶6 Wisconsin trial courts have no subject-matter jurisdiction over second or subsequent drunk driving offenses tried as first offenses contrary to Wis.
Denial of fair trial – restraint of defendant during trial; sentencing – reliance on inaccurate information; new factor
State v. Richard Wade Shirley, 2012AP263-CR, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity
Denial of fair trial – restraint of defendant during trial
Defendant forfeited claim that he was deprived of a fair trial because at least one juror saw he was shackled in the court room: “Not only does the record show that Shirley failed to strike the one juror that the record demonstrates saw the restraints,