On Point blog, page 60 of 96
Rogelio Promotor v. Pollard, 7th Cir No. 09-2292, 12/14/10
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.
Sentencing Conditions, § 973.049(2): No-Contact Order – “Victim” Definition
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.
OWI – § 346.65(2), Second or Subsequent Offense: Out-of-State Administrative Non-Refusal (“Zero Tolerance”) Suspension
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,
DNA Surcharge – Timeliness of Challenge
State v. Raymond Allen Nickel, 2010 WI App 161 (recommended for publication); pro se; State Resp.; Robert R. Henak, WACDL, Amicus Brief
Nickel’s challenge to his DNA surcharge was untimely, because made outside the direct appeal time limits:
¶5 When a defendant moves to vacate a DNA surcharge, the defendant seeks sentence modification. Pursuant to WIS. STAT. § 973.19, a defendant may move for sentence modification within ninety days after sentencing.
Sentencing – Right to be Sentenced by Judge Who Took Plea / Heard Evidence of Guilt
State v. Kacey G. Johnson, 2010AP1263-CR, District 1, 11/23/10
court of appeals decision (1-judge, not for publication); for Johnson: James B. Duquette; Johnson BiC; State Resp.; Reply
Johnson forfeited his claim of a right to be sentenced by the judge who took his guilty plea, by failing to object contemporaneously. This is not a matter requiring the defendant’s personal assent.
¶11 Fundamental fairness is a general due process concept.
State v. Charles Lamar, 2009 WI App 133, review granted 10/27/10
Prior post: here; background summary by court: here
Issue (from Table of Cases):
Whether, at resentencing, a defendant would be entitled to credit on a new sentence for time spent confined on a vacated sentence, which was served concurrently with another non-vacated sentence, when the new sentence is imposed consecutively to all other sentences (See Wis. Stat. § 973.04).
Guilty Plea – Withdrawal – Presentence, Undisclosed Exculpatory Evidence, Waiver Rule; Ineffective Assistance of Counsel; Sentencing
State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Guilty Plea – Withdrawal – Presentence
The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.
The particular grounds asserted – no factual basis for plea;
Sentencing – Burden to Show Inaccurate Information
State v. Jason C. Walker, 2010AP83-CR, District 3, 11/2/10
court of appeals decision (recommended for publication); for Walker: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply
¶1 Jason Walker was sentenced after revocation of his probation. The sentencing court considered probation violations that Walker denied committing. Because of his denial, Walker argues the court could not consider the violations unless the State proved he committed them.
Compelled Self-Incrimination – Sentencing after Revocation
State v. Ronnie L. Peebles, 2010 WI App 156 (recommended for publication); for Peebles: Suzanne L. Hagopian, SPD, Madison Appellate; BiC; Resp.; Reply
Use, at Peebles’ sentencing after revocation, of his incriminating statements made during counseling ordered as a condition of probation, violated the 5th amendment and requires resentencing. The court canvasses the leading cases – State v.
State v. Brandon G. Johnson, 2010AP233-CR, District 4, 10/14/10
court of appeals decision (3-judge, not recommended for publication); for Johnson: Philip J. Brehm; BiC; Resp.; Reply
Restitution – Psychiatric Care – Sexual Assault
Johnson, 17, had sex with 14-year-old W.M.K., resulting in conviction for 3rd degree sexual assault. Restitution ($10k), awarded for W.M.K.’s 10-month residence at Thayer Learning Center, (described as “a boot camp, behavior modification experience”) satisfied “substantial factor”