On Point: 36. Sentencing

State v. Leroy Rice, Jr., 2022AP244-CR, 9/14/22, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rice sought resentencing based on an inadequate waiver of his right to be physically present at his sentencing per §971.04(1)(g) and based on a new factor: the circuit court overlooked his substance abuse needs at the time of sentencing and thus failed to make him eligible for substance abuse programming (SAP). Successful completion of SAP would entitle him to early release.  The court of appeals rejected both arguments.

State v. Jonathan L. Liebzeit, 2021AP9-CR, District 3, 8/30/22 (not recommended for publication); case activity (including briefs)

In 1997, a circuit judge sentenced Liebzeit to life without the possibility of parole for a homicide he committed at the age of 19. In 2019, after hearing a presentation at a judicial education seminar about juvenile brain development and shortly thereafter sentencing an 18-year-old for a crime, the judge decided to to contact Liebzeit’s lawyer to suggest a sentence modification may be appropriate based on the new factor of the brain development research. After defense counsel filed a sentence modification motion the court modified Liebzeit’s sentence to make him eligible for paroled after 25 years based on two new factors: 1) new scientific understanding of brain maturity in adolescents; and 2) Liebzeit’s brain damage from his inhalant use. (¶¶4-22). The court of appeals holds the circuit court erred because Liebzeit didn’t prove either new factor.

State v. Robert J. Baur, 2021AP55, 8/25/2022, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

An OWI defendant can attack prior convictions–thus seeking a lower offense number and lower associated penalty–only if he or she lacked counsel in that prior proceeding and did not knowingly, voluntarily and intelligently waive the right to counsel. Wisconsin courts have adopted a burden-shifting regime: if a defendant can show that the court in the prior proceeding didn’t do a proper colloquy on the counsel right, the state must then prove that the defendant nevertheless understood the right. But given that priors are often from quite a while ago, it often happens that no transcript of the prior hearing can be produced. What then?

State v. Singh, 2021AP1111-CR, 8/18/22, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Singh challenges his 2005 conviction for OWI, first offense. He first asks for a writ of coram nobis vacating the conviction. Alternatively, he asks that his conviction be vacated or amended under State v. Forrett, 2022 WI 37, 401 Wis. 2d 678, 974 N.W.2d 422, which held that an OWI penalty cannot be increased because of a prior revocation stemming from a refusal to submit a warrantless blood draw.

State v. Westley D. Whitaker, 2020AP29-CR, 2022WI 54, 7/5/22, affirming a publisher court of appeals opinion, 2021 WI App 17; case activity (including briefs)

As a teenager, Whitaker repeatedly sexually assaulted his sisters. Though aware of the assaults, neither his parents nor the Amish elders reported them to the authorities. Whitaker pleaded to one count of 1st-degree sexual assault of a child. On appeal, he argues that the circuit court improperly sentenced him by referencing his Amish faith and stating an intent to send a message to the Amish community. SCOW affirmed, but the majority and concurrences highlight concerns about how “improper sentencing factor” claims are evaluated.

State v. C.G., 2022 WI 60, 7/7/22, affirming a published court of appeals decision, 2018AP2205; case activity

C.G. has the masculine legal name her parents gave her when she was born. When she was 15 years old she committed a sexual assault. At the time she was identifying as a male, but during and after the pendency of her juvenile case she began to transition to female. She wants to change her legal name to reflect her gender. But in Wisconsin, those on the registry are forbidden to change their names. C.G.–who is primarily identified by the pseudonym “Ella” in this confidential juvenile case–argued that forcing her to retain a masculine legal name violates her First Amendment right to free speech, and her Eighth Amendment right to be free from cruel and unusual punishment. Four justices disagree.

State ex rel. DeLorean Bryson v. Kevin Carr, 2022 WI App 34; case activity (including briefs)

A few months ago the court of appeals decided Ortiz v. Carr, holding (with a number of important caveats) that DOC may not take a greater percentage of an inmate’s wages for restitution than the circuit court has ordered–if the circuit court has ordered a specific percentage. Here, the court applies similar logic to obligations other than restitution. It holds that DOC has the authority to set a percentage rate for the crime lab surcharge and the DNA surcharge, but that the circuit court has the authority to set a different rate for collection of court fees. It does not decide who has authority over the victim-witness surcharge, because DOC did not appeal the circuit court’s determination of that question (which was that DOC has the authority to set the percentage, but that its new policy of taking 50 percent violates the administrative rules it earlier promulgated).

State v. Ricky Rodriguez, 2021AP2053-Cr, 6/14/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rodriguez was convicted of two misdemeanors and placed on probation in early 2017. a few months later, he committed two felonies and was sentenced to prison. His probation for the misdemeanors was revoked, and he was sentenced to 9 months in jail consecutive to any other sentence. In his pro se appeal, he argued that his sentence after revocation cannot, as a matter of law, run consecutive to the sentence for his felonies based on Drinkwater v. State, 69 Wis. 2d 60, 230 N.W.2d 126 (1975). The court of appeals says that it can.

State v. Jimmie L. Blount, 2021AP1943-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

At one sentencing hearing on two different cases, the circuit court imposed on one case a 4-year bifurcated prison sentence—2 years’ confinement and 2 years’ extended supervision—and on the other ordered 3 years of probation. The court said the probation would be concurrent to the ES on the first case, which would’ve added another year onto the “global” disposition of 5 years. Both lawyers pointed out the probation has to be either concurrent with or consecutive to the total bifurcated sentence, so the judge ordered the probation to be consecutive, thus increasing the “global” disposition to 7 years. The judge’s need to correct its initial error didn’t amount to a new factor justifying sentence modification.

State v. Rebecca Sue Ferraro, 2021AP1654-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Ferraro pled to and was sentenced for OWI, third offense, before the blood alcohol test result of her blood draw was available. At sentencing the preliminary breath test result was bandied about as one of the aggravating factors. A few days after sentencing, the BAC result arrived. Turns out it was lower than the PBT. That is not a new sentencing factor because it’s not highly relevant to the sentence imposed; and even if it was, the circuit court properly concluded it didn’t merit sentence modification.