On Point: 36. Sentencing

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court of appeals decision (1-judge, not for publication); for Hoffman: Kathleen A. Lindgren; case activity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court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity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court of appeals decision (1-judge, not for publication); for Eric A.:  pro se; case activity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court of appeals decision (1-judge, not for publication); for Sampson: Donna L. Hintze, SPD, Madison Appellate; case activity; Sampson BiC; State Resp.; Reply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,

State ex rel. Christopher L. Shelton v. Smith, 2010AP719, District 2, 1/26/11 

court of appeals decision (not recommended for publication); case activity; State Resp.

Shelton was sentenced on two pre-TIS counts: an active (indeterminate) prison sentence on one count and a consecutive term of probation on the other. He served out the first sentence, with the prison indisputably holding him 143 days past his release date.

State v. Michael S. L., 2010AP2352, District 2, 1/19/11

court of appeals decision; for Michael S.L.: Leonard D. Kachinski; case activity

Restitution order of 200 hours’ community service, on adjudication for disorderly conduct for “prank”  bomb threat to school, and based on school’s estimate of economic loss due to evacuating students and staff for the bomb scare, was within juvenile court’s authority. Although Michael S.L. did not admit to making the threats himself,

7th circuit decision, habeas review of summary order of Wisconsin court of appeals, No. 2004AP2242-CR

Habeas – Procedural Bar, Sentencing Objection

Pomotor’s failure to object to information (the number of beers he allegedly consumed) in his alternative presentence report, worked a procedural default to his susbequent challenge to the sentencing court’s reliance on that information

Promotor accurately argues that a procedural defaultdoes not bar consideration of a federal claim unless the procedure is a “firmly established and regularly followed state practice.”  Smith v.

State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC;State Resp.; Reply

(Issue of plea bargain breach discussed in separate post, here.)

On sentencing Campbell for sexual assault of his daughter, the trial court had, and properly exercised, authority under § 973.049(2) to bar Campbell’s contact with his son until completion of sex offender treatment.

State v. Gerard W. Carter, 2010 WI 132, reversing 2009 WI App 156; for Carter: Craig M. Kuhary; State BiC; Carter Resp.; Reply

Prior DL suspension under Illinois’ “zero tolerance” law (which suspends or revokes operating privileges of drivers under legal drinking age with any alcohol concentration) satisfies § 343.307(1)(d) and therefore supports OWI enhancement,