On Point: 36. Sentencing

State v. Thaying Lor, 2011AP2019-CR, District 1, 5/1/12

court of appeals decision (not recommended for publication); for Lor: Benjamin F. Gallagher; case activity

Effective Assistance of Counsel 

Counsel did not provide ineffective representation in the following respects:

• Failure to timely file motion seeking admission of complainant’s prior untruthful allegation of sexual assault. However, Lor did not provide, including in his postconviction motion,

State v. David D. Austin, 2011AP1042, District 1, 4/10/12

court of appeals decision (1-judge, not for publication); pro se; case activity

Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:

¶12      Austin submits that the wording of Wis.

Monroe Ace Setser v. U.S., USSC No. 10-7387, 3/28/12, affirming 607 F.3d 128 (5th Cir 2010)

District courts have authority to make a sentence for a federal offense consecutive to an anticipated, but not-yet imposed state sentence. Sentencing Reform Act of 1984, 18 U. S. C. §3584, construed.

It is fundamental that we construe statutes governing the jurisdiction of the federal courts in light of “the common-law background against which the statutes .

State v. Scott P. Wojcik, 2011AP2568-CR, District 2, 3/21/12

court of appeals decision (1-judge, not for publication); for Wojcik: Christopher Lee Wiesmueller; case activity

90-day jail sentence for OWI-2nd (minimum 0f 5 days, maximum of 6 months) upheld as proper exercise of discretion. Trial court considered as aggravators recentness of prior OWI conviction (2008) and his seeming level of impairment (stumbled on getting out of car); and stressed deterrent purpose of sentence.

State v. Traci L. Scott, 2011AP2115-CR, District 2, 3/21/12

court of appeals decision (1-judge, not for publication); for Scott: Rex Anderegg; case activity

The court rejects Scott’s challenge to a prior OWI conviction, concluding that she aware of the range of punishments, dangers of self-representation, etc. General test recited:

¶2        A defendant facing an enhanced sentence based on a prior conviction may only collaterally attack that prior conviction based on the denial of the constitutional right to counsel.  

State v. Daryl J. Teska, 2011AP1010-CR, District 2, 3/14/12

court of appeals decision (1-judge, not for publication); for Teska: John E. German; case activity

Teska was originally placed on probation, sentences withheld, on 3 counts; jail time as a condition of probation was ordered as to 1 count. Probation was later revoked and although all 3 of sentences were imposed concurrently, credit for the time spent in jail as a condition of probation was allocated only to that particular count.

State v. Matthew R. Steffes, 2012 WI App 47 (recommended for publication), petition for review granted, 10/16/12; for Steffes: Jeffrey W. Jensen; case activity

Conspiracy to Commit Theft by Fraud, §§ 939.31, 943.20(1)(d) – Sufficiency of Evidence 

Evidence held sufficient to sustain Steffes’ conviction for conspiracy to commit theft by fraud, based on his participation in a prisoners’ “burn-out” telephone scam.

State v. William Dinkins, Sr., 2012 WI 24, affirming 2010 WI App 163; for Dinkins: Steven D. Phillips, SPD, Madison Appellate; case activity; note: the court affirms the mandate (reversal of conviction and dismissal of charge), but “upon a different rationale,” ¶63; the net effect is, “affirmed, as modified“

Although homelessness is not in and of itself a defense to prosecution for failing to register as a sex offender, 

State v. Michael A. Imbruglia, 2011AP1373-CR, District 2, 2/8/12

court of appeals decision (1-judge, not for publication); for Imbruglia: Rick Ramirez; case activity

In circuit court, Imbruglia successfully challenged use of a Colorado conviction as an OWI enhancer (on the ground that statute isn’t “substantially similar” to Wisconsin’s). However, after another OWI arrest the very next day, the State reasserted that same conviction to enhance the new charge.

State v. Anthony C. Boyden, 2012 WI App 38 (recommended for publication); for Boyden: Rex Anderegg; case activity

Information provided by Boyden before his sentencing, which didn’t bear fruit until much later, supported a new factor-based request for sentence modification. State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, followed.

¶14      Boyden’s motion for sentence modification addresses in detail the factors set forth in Doe.