On Point: 36. Sentencing

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 His probation for the misdemeanors was revoked, and he was sentenced to 9 months in jail consecutive to any other sentence.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.

State v. Justin M. Church, 2021AP751-CR, District 3, 6/1/22 (not recommended for publication); case activity (including briefs)

At a pretrial hearing the circuit court made what the court of appeals characterized as an “ill-advised and troubling” attempt at humor (¶26), but it didn’t demonstrate that the circuit court prejudged the sentence it was going to impose or otherwise demonstrate a serious risk of actual bias.

State v. Evan J. Schnoll, 2021AP1119-CR, 4/28/22; District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

In 2020, Schnoll was charged with OWI 2nd. He challenged the validity of his prior OWI, which occurred in California, arguing that it could not be counted under Wisconsin law. The circuit court rejected his argument and counted the California conviction. The court of appeals granted Schnoll’s petition for leave to appeal but now affirms the circuit court.

State v. Dominic A. Caldiero, 2021AP1163-CR, District 4, 4/28/22 (one-judge decision; ineligible for publication); case activity (including briefs)

When he drove in 2019, Caldiero was still “subject to” a 2015 court order under § 343.301 (2013-14) restricting his operating privilege to cars with an ignition interlock device (IID) because the time period on that restriction does not begin to run till DOT issues him a driver’s license, and that hadn’t happened as of the date he was driving.

State v. Teresa L. Clark, 2022 WI 21, 4/20/22, reversing the circuit court on bypass, case activity (including briefs)

A defendant may collaterally attack a prior OWI conviction if she was not represented by counsel and did not knowingly, intelligently, and voluntarily waive the right to counsel during that proceeding. Once she points to evidence of this claim, the burden shifts to State to prove a valid waiver. In a split opinion, SCOW now holds that if the transcript of the prior OWI hearing is unavailable, the burden doesn’t shift. The defendant must prove that her right to counsel was in fact violated–which is virtually impossible.

State v. Hajji Y. McReynolds, 2022 WI App 25; case activity (including briefs)

This decision addresses: 1) the propriety of successive postconviction motions; 2) a claim that trial counsel was ineffective for failing to object to testimony vouching for the credibility of another witness and to improper character evidence; and 3) the novel issue of the sentencing judge’s use of a written rather than oral explanation of its sentencing rationale under § 973.017(10m)(b).