On Point: 36. Sentencing

State v. Michael S. Hoseman, 2011 WI App 88 (recommended for publication); for Hoseman: Timothy M. Johnson; case activity

Hoseman is liable in restitution for damages to a rented house caused by his marijuana manufacturing operation. Restitution requires that there be a “direct victim” of the crime and a causal connection between the defendant’s conduct and the claimed damages, ¶16. Both requirements are satisfied.

Direct victim:

¶23      The cases Hoseman relies upon are inapposite under the facts of this case;

State v. Shantell T. Harbor, 2011 WI 28, affirming unpublished decision; for Harbor: Joseph E. Redding; case activity

Sentence Modification – New Factor

The “new factor” test for sentence modification has split into “two divergent lines of cases”: Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (fact(s) highly relevant to, but not brought out at, 

State v. Brian M. Joski, 2010AP2223-CR, District 3, 5/3/11

court of appeals decision (1-judge, not for publication); for Joski: Thomas J. Coaty; case activity

A prior conviction used to enhance a new sentence may be collaterally attacked on the basis of violation of right to counsel, in other words, that the defendant didn’t validly waive counsel within the requirements set by State v. Klessig,

Village of Menomonee Falls v. Jason R. Ferguson, 2011 WI App 73 (recommended for publication); for Ferguson: Daniel P. Fay; case activity

Ferguson’s guilt for violating local sex offender residence-restriction ordinance upheld, as against argument that he fell within grandfather clause exception. The ordinance bars registered sex offenders from living within 1500 feet of any facility for children, but excepts an offender who had established and reported a residence prior to the ordinance’s effective date.

State v. George McGee, 2010AP3040-CR, District 3, 4/26/11

court of appeals decision (1-judge, not for publication); for McGee: Steven G. Richards; case activity

McGee’s collateral attack on a prior OWI conviction used to enhance his present sentence is necessarily limited to denial of the constitutional right to counsel, ¶5. Although McGee represented himself in the challenged prior, he failed to show that his waiver of counsel was invalid.

State v. Thomas J. Hoffman, 2010AP1327-CR, District 2, 3/30/11

court of appeals decision (1-judge, not for publication); for Hoffman: Kathleen A. Lindgren; case activity

Hoffman’s challenge to the length of his sentence became moot once he had fully served it.

¶6     At the outset, the State contends that Hoffman’s appeal is moot; he has served his entire seven-month sentence and this court’s review on his motion for sentence modification will have no practical effect. 

State v. Anthony M. Smith, 2009AP2867-CR, District 1/4, 3/3/11

court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity

Trial court’s limitations on cross-examination with respect to State witness’s “prior mental condition” or use of medications (prescribed for his Bipolar Disorder and Attention Deficit Disorder) upheld as proper exercise of discretion. The witness was taking his medication at the time of the alleged offense,

Pepper v. U.S., USSC No. 09-6822, 3/2/11

In light of the federal sentencing framework described above, we think it clear that when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.

The thrust of the opinion is statutory,

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

Expungement – Delinquency Adjudication, § 938.355(4m)(a)

Denial of petition for expungement of repeated sexual assault of child adjudication is affirmed.

¶8        Here, the court determined that the offense was too serious, and it would be against public policy, to permit expungement.  The court’s order stated society would be harmed by granting expungement. 

State v. Gary R. Sampson, 2010AP1930-CR, District 3, 2/1/11

court of appeals decision (1-judge, not for publication); for Sampson: Donna L. Hintze, SPD, Madison Appellate; case activity; Sampson BiC; State Resp.; Reply

Sampson was guilty of theft for keeping a down payment to make improvements to a business without finishing the work. However, he is liable for restitution,