On Point: 36. Sentencing

State v. Mark M. Benson, 2012 WI App 101 (recommended for publication); case activity

Equal Protection – Homicide of Unborn Child by Intoxicated Use of Motor Vehicle, §§ 939.75(2)(b)3, 940.09(1)(c) 

Section § 939.75(2)(b)3 exempts from criminal liability any “act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.”

State v. Cody A. Gibson, 2012 WI App 103 (recommended for publication); case activity

Restitution order to reimburse insurance company and owner for insurance deductible, in relation to losses arising from stolen auto, upheld. The company (Acuity) paid the owners $11,113 the same day the car was stolen, but the car was recovered with very little damage the very next day. The car was appraised at $10,379 and Acuity turned it over to a salvage company,

State v. Brandon M. Melton, 2012 WI App 95, WSC review granted 11/14/12(recommended for publication), supreme court review granted 11/14/12; case activity

Under “unique facts,” the circuit court possessed inherent authority to order destruction of a PSI: the PSI contained uncharged offenses irrelevant to sentencing whose inclusion was improper under DOC rules; and, though sealed, it coexisted with a second PSI in the court file:

¶22      The circuit court did not articulate any public policy reasons for rejecting Melton’s request to destroy the entire PSI report,

State v. Michael L. Frey, 2012 WI 99, affirming unpublished decision; case activity

Sentencing Discretion – Reliance on Dismissed Charge 

The sentencing court may consider charges “dismissed” or “dismissed outright” (as opposed to read-ins)

¶47  To discharge its obligation to discern a defendant’s character, “[a] sentencing court may consider uncharged and unproven offenses,” State v. Leitner,

State v. Roshawn Smith, 2012 WI 91, reversing in part, affirming in part unpublished decision; case activity

Standard of Review: Sufficiency of Evidence 

¶29  We understand Smith’s central argument regarding the standard of review on the evidentiary question to be summed up in the proposition that a jury verdict of guilt[9] must be reversed on appeal if “[t]he inferences that may be drawn from the circumstantial evidence are as consistent with innocence as with guilt.” 

Southern Union Company v. United States, USSC No. 11-94, 6/21/12, reversing 630 F.3d 17 (1st Cir 2010)

Criminal fines, no less than length of imprisonment, come within the “Apprendi” doctrine, such that a fine beyond the maximum statutory amount must be based on facts decided by the jury. Southern Union was tried for violating environmental laws carrying a fine of up to $50,000 per day in violation.

Evan Miller v. Alabama, USSC No. 10-9646 / Kuntrell Jackson v. Hobbs, No. 10-9647, 6/25/12,  reversing 63 So. 3d 676 (Ala. Crim. App. 2010)

The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole. In neither case did the sentencing authority have any discretion to impose a different punishment. State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics,

State v. James E. Emerson, 2011AP1028-CR, District 3, 6/26/12

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

Counsel – Substitute 

Given findings made by the lower court after an evidentiary hearing, the court of appeals upholds denial of counsel’s motion to withdraw: counsel was prepared for trial; “(t)his was a dilatory tactic by the defendant,” on the eve of trial after the charge had been pending for some time;

State v. Troy D. Jefferson, 2011AP1778-CR, District 1, 6/26/12

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

Counsel was ineffective for failing to inform the sentencing court “about Jefferson’s good character and positive social history.”

 ¶17      Specifically, trial counsel’s failure to inform the trial court about Jefferson’s good character and positive social history in any meaningful way was deficient because it was not,

State v. Willie H. Jackson, 2012 WI App 76 (recommended for publication); case activity

§ 973.048(1m) (2003-04) authorizes the sentencing court to require sex offender registration under § 301.45 for conviction of enumerated crimes, “if the court determines that the underlying conduct was sexually motivated as defined in s. 980.01(5)” and public protection would be advanced thereby. (“Sexually motivated,” as might be imagined, means that “sexual arousal or gratification”