On Point: 36. Sentencing

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court of appeals decision (1-judge, not for publication); for Timothy J.K.: Eileen A. Hirsch, SPD, Madison Appellate; case activity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court of appeals decision (not recommended for publication); for Comas: Steven D. Grunder, SPD, Madison Appellate; case activity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court of appeals decision (1-judge, not for publication); for Spears: Kyle S. Conway; case activity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court of appeals decision (not recommended for publication); for Deal: James A. Rebholz; case activity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court of appeals decision (not recommended for publication); for Johnson: Sara Heinemann Roemaat; case activity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”

State v. Guadalupe Jose Rivas, 2010AP2777-CR, District 1, 9/13/11

court of appeals decision (not recommended for publication); for Rivas: George Tauscheck; case activity

¶5        Rivas argues that four instances of inaccurate information mentioned by the trial court at his sentencing require resentencing:  (1) the trial court believed that Rivas had five prior felonies when he had only four; (2) the trial court mischaracterized Rivas as a drug dealer;

court of appeals decision (not recommended for publication); for Linssen: Thomas C. Simon; case activity

Sentence Review – Harsh & Excessive 

Sentence to maximum term of confinement for felony theft and forgery wasn’t harsh and excessive, notwithstanding lack of prior criminal record.

¶23      Linssen has failed to provide clear and convincing evidence that the sentencing court relied on improper factors, see Harris,

State v. Thomas J. Haiduk, 2011AP551-CR, District 3, 8/30/11

court of appeals decision (1-judge, not for publication); for Haiduk: Gary S. Cirilli; case activity

In determining restitution for home improvement-related theft, the trial court failed to resolve whether the underlying contract was fixed-price or time-and-materials, therefore remand is necessary.

¶22      The court’s value-based $100,517.96 offset, and corresponding $35,877.33 restitution award, only includes an offset for the costof Haiduk’s materials,

State v. Joseph Gayden, 2010AP2360-CR,District 1, 8/30/11

court of appeals decision (not recommended for publication); for Gayden: Matthew S. Pinix; case activity

The difference between Wis JI-Criminal 800 and 805 is that the latter limits the defendant’s intentional use of force intended or likely to cause death or great bodily harm to reasonable belief that the force is necessary to prevent imminent death or great bodily harm.

State v. Jeffrey D. Knickmeier, 2011AP368-CR, District 4, 11/25/11

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

The court upholds the sentence – 2, concurrent 6-month jail terms for theft by bailee – of disbarred attorney Knickmeier. The court patiently discusses each of Knickmeier’s challenges to sentencing discretion (some of which, to be blunt, seem frivolous), and concludes:

¶12      In summary,