On Point: 36. Sentencing

State v. Toronee L. Kimbrough, 2010AP2676-CR, District 1, 10/25/11

court of appeals decision (not recommended for publication); for Kimbrough: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

The court rejects Kimbrough’s challenge to sentence, as based on 3 instances of alleged inaccuracies:

1. the sentencing court’s reliance on the co-defendant’s statements as suggestive of Kimbrough’s own failure to accept responsibility for the crime (Kimbrough doesn’t meet his burden of showing erroneous attribution to him of the co-defendant’s statements,

State v. Altonio Laroy Chaney, 2011AP207-CR, District 1, 10/25/11

court of appeals decision (not recommended for publication); for Chaney: Angela Conrad Kachelski; case activity; prior appeal: 2008AP395-CR

Chaney’s argument that an eyewitness had recanted his version of having seen Chaney sexually assault the victim didn’t satisfy the new factor test for sentence modification: the sentencing court didn’t focus on the claim that Chaney,

State v. Scott R. Long, 2011 WI App 146 (recommended for publication); for Long: Jeff T. Wilson; case activity

DNA surcharge, conditioned on Long not having previously provided sample or having paid surcharge, upheld as proper exercise of discretion:

¶8        Here, the circuit court ordered the DNA sample contingent on whether one had previously been provided.  If the sample had not previously been provided, the circuit court reasoned that the DNA surcharge was appropriate because “it would be for a sample provided in connection with this case.”  This explanation is consistent with the rationale of the circuit court which we affirmed in Jones.  

State v. Jeffrey S. Firebaugh, 2011 WI App 154 (recommended for publication); pro se; case activity

Because the Wisconsin Sentencing Commission had created no guideline “applicable” to Firebaugh’s offense (homicide by intoxicated use of a motor vehicle), he isn’t entitled to resentencing on the basis of failure to “consider” a (non-existent) guideline.

¶12      At the time of Firebaugh’s sentencing, neither the CPSC nor the Commission had developed a sentencing guideline for homicide by intoxicated use of a motor vehicle.  

State v. Malcolm L., 2011AP714, District 2, 10/12/11

court of appeals decision (1-judge, not for publication); for Malcolm L.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Juvenile courts have authority to stay sex offender registration, § 938.34(16), and State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1. Here, the trial court erroneously failed to exercise discretion on Malcolm’s request for such a stay.

State v. Timothy J. K., 2011AP1091, District 2, 10/5/11

court of appeals decision (1-judge, not for publication); for Timothy J.K.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

The trial court’s requirement of sex offender registration, § 301.45(1m)(d)(1), is upheld against an argument that the court misconstrued an expert’s recommendation of no registration.

¶9        Timothy fails to clear the first hurdle of the Tiepelman standard.  

State v. Carlos G. Comas, 2010AP2687-CR, District 4, 9/29/11

court of appeals decision (not recommended for publication); for Comas: Steven D. Grunder, SPD, Madison Appellate; case activity

Although Comas was charged with § 948.025(1)(a), repeated sexual assault of the same child by acts of sexual intercourse, the case was in effect tried under § 948.025(1)(ar) ,which requires acts of sexual intercourse or contact. Comas received a confinement term of 25 years,

State v. Jason D. Spears, 2011AP934-CR, District 1, 9/20/11

court of appeals decision (1-judge, not for publication); for Spears: Kyle S. Conway; case activity

Trial court’s failure to explain rationale for sentence violated State v. Gallion, 2004 WI 42, ¶¶44-49, 270 Wis. 2d 535, 678 N.W.2d 197, and requires remand for resentencing.

¶11      Here, the circuit court did not explain how Spears’s criminal history impacted its sentencing decision,

State v. Aaron Deal, 2010AP1804-CR, District 1, 9/20/11 

court of appeals decision (not recommended for publication); for Deal: James A. Rebholz; case activity

Counsel’s refusal to argue to the jury that it should return a guilty verdict on felony murder, submitted as a lesser offense option of first-degree intentional homicide, wasn’t deficient in light of the defendant’s insistence on an all-or-nothing strategy.

¶8        At the Machner hearing,

State v. Burt Terrell Johnson, Jr., 2010AP2654-CR, District 1, 9/13/11

court of appeals decision (not recommended for publication); for Johnson: Sara Heinemann Roemaat; case activity

Counsel did not perform deficiently.

1. Decision not to make opening statement was reasonable strategy, given that the defense didn’t plan to call any witnesses but instead intended “to put the State to its proof,” ¶21.
2. Failure to object to State’s closing argument characterizing what the victim “saw”