On Point: 36. Sentencing

State v. Jesse D. Fries, 2011AP517-CR, District 4, 12/27/12

Court of appeals decision (not recommended for publication); case activity

Cost of installing new, upgraded security system in a convenience store after robbery was a “special damage” and therefore a proper item of restitution:

¶8        Fries’ primary contention is that an expenditure does not qualify as a special damage unless it was “spent to return the victim to the financial state he was in before the crime occurred.”  Here,

Robert Dietrich v. Smith, 7th Cir No. 12-1672, 12/4/12

seventh circuit decision, on habeas review, affirming 2011C117 (E.D. Wis 2/23/12); prior history: State v. Dietrich, Wis. App. 2008AP1697-CR

After the trial court denied his request for an in camera inspection of the sexual assault victim’s mental health records, State v. Green, 2002 WI 68,

State v. Tony J. Lalicata, 2012 WI App 138 (recommended for publication); case activity

Probation is not an available disposition under § 948.02(1)(b) (child sexual assault). By mandating that “the court shall impose a bifurcated sentence” with a confinement portion of at least 25 years for that offense, § 939.616 forecloses the possibility of probation:

¶14      …  We conclude instead that § 939.616(1r) unambiguously prohibits probation,

on review of published decision; case activity

Issue (composed by On Point) 

Whether a circuit court has inherent authority to order destruction of a presentence investigation report (albeit under “unique facts”), after sentencing and entry of judgment.

And as to those unique facts? The PSI at issue contained information about uncharged offenses that the trial court determined “would be prejudicial to Melton as he went through the …

Question Presented:

The U.S. Sentencing Guidelines Manual directs a court to “use the Guidelines Manual in effect on the date that the defendant is sentenced” unless “the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the Ex Post Facto Clause of the United States Constitution.” Eight courts of appeals have held that the Ex Post Facto Clause is violated where retroactive application of the Sentencing Guidelines creates a significant risk of a higher sentence.

State v. Allen Dell Vaughn, 2012 WI App 129 (recommended for publication); case activity

Waiver / Forfeiture of Right, Generally 

Waiver is the intentional relinquishment or abandonment of a known right or privilege; forfeiture is:  (1) the failure to object to something without intending to relinquish that which an objection might have preserved and (2) doing something incompatible with the assertion of a right, ¶21, citing State v.

State v. Daniel Buchanan, 2011AP830-CR, District 1, 10/30/12

court of appeals decision (not recommended for publication); case activity

Hearsay – Prior Consistent Statement, § 908.01(4)(a)2

The prior-consistent statement rule allows substantive admissibility of an out-of-court statement if: “(1) the declarant testifies at trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant’s testimony; and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive,” 

on review of published decision; case activity

Issues (composed by On Point): 

1. Whether the evidence is sufficient to sustain conviction for conspiracy-theft by fraud, in that: no conspirator expressly made a false representation; and in any event, Steffes joined the conspiracy after it had already been set in motion.

2. Whether the evidence is sufficient to sustain conviction for a felony, in that the evidence failed to establish theft of at least $2,500.

Cesar Deleon v. Circuit Court for Brown County, 2012AP278, District 3, 10/10/12

court of appeals decision (1-judge, ineligible for publication); case activity

Summary Contempt, §§ 785.01(1)(a), 785.04(2)(b) – “Unit” of Sanctionable Conduct 

Separate, consecutive punishments meted out for each of 11 profane utterances and 1 act of spitting during brief exchange with judge upheld, against argument they “amounted only to a single act of contempt because they took place during a short period of time.”

Question Presented:

Whether this Court’s decision in Harris v. United States, 536 U.S. 545 (2002), should be overruled.

Docket

Lower court opinion (U.S. v. Alleyne, CTA4 No. 11-4208, 12/15/11 (unpublished))

Scotusblog page

Alleyne was convicted by a jury of using or carrying a firearm during and in relation to a robbery,