On Point blog, page 61 of 95
Sentencing – Factors
State v. William Webber, 2010AP9-CR, District 3, 8/17/10
court of appeals decision (1-judge, not for publication); for Webber: Chris A. Gramstrup; BiC; Resp.
On charges of 4th degree sexual assault and obstructing, the sentencing court properly considered, as both aggravating and mitigating, Webber’s 30-year history as a law enforcement officer, as well as his nonconsensual videotaping of his ex-wife.
State v. Brent S. Watling, 2009AP1727-CR, District 2, 8/11/10
court of appeals decision (3-judge, not recommended for publication); for Watling: Margaret A. Maroney, Shelley M. Fite, SPD, Madison Appellate; BiC; Resp.; Reply
Sentencing – Exercise of Discretion – Sex Offender Registration
The sentencing court properly exercised discretion in requiring Watling to register as a sex offender on his conviction for 4th-degree sexual assault, ¶¶7-15.
Registration requirements are set out in § 301.45.
Restitution – Settlement Agreement
State v. Theresa E. Palubicki, No. 2010AP555-CR, District 3
court of appeals decision (1-judge, not for publication); for Palubicki: Michael D. Petersen; BiC; Resp.; Reply
The burden of proving setoff rests with the defendant. Although Palubicki reached a settlement agreement with the hit-and-run victim, she did not meet her burden of proving that the agreement covered lost wages, therefore she is liable for them in restitution.
Judicial Bias – Sentencing after Revocation
State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10
court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.
Sufficiency of Evidence Review; Reverse Waiver; Sentence – Exercise of Discretion
State v. Carl Morgan, 2009AP74-CR, District III, 7/20/10
court of appeals decision (3-judge, not recommended for publication); for Morgan: Ralph Sczygelski; BiC; Resp.; Reply
Sufficiency of Evidence Review
Review of a denied motion for dismissal at the close of the prosecutor’s case-in-chief is waived where the defendant proceeds to put in a defense. All the evidence, including the defense presentation,
Sentence Credit – Concurrent Sentence, Foreign Jurisdiction
State v. Patrick C. Carter, 2010 WI 77, affirming as modified, 2007 WI App 255; for Carter: Ellen Henak, SPD, Milwaukee Appellate
Carter is entitled to sentence credit for time spent in custody in Illinois following his arrest on an outstanding Wisconsin warrant along with an Illinois charge, given that the resultant sentences were concurrent.
Five different opinions, 238 paragraphs spread out over 116 pages (pdf file),
Sentencing – Review – Reliance on Race or Gender
State v. Landray M. Harris, 2010 WI 79, reversing unpublished decision; for Harris: Michael K. Gould, SPD, Milwaukee Appellate; Resp. Br.; Reply; Amicus
¶3 We agree with the State and reject the reasonable observer test created by the court of appeals. Sentencing decisions are afforded a presumption of reasonability consistent with Wisconsin’s strong public policy against interference with a circuit court’s discretion.
Sentencing – Accurate Information; New Factor
State v. Michael J. Grabowski, No. 2009AP2118-CR, District I, 7/7/10
court of appeals decision (3-judge; not recommended for publication); for Grabowski: Jamie F. Wiemer; BiC; Resp.; Reply
Sentencing – Accurate Information
¶5 Grabowski argues that the circuit court sentenced him based on inaccurate information. A defendant claiming that a sentencing court relied on inaccurate information must show that: (1) the information was inaccurate;
Pepper v. U.S., USSC No. 09-6822, cert. grant 6/28/10
Decision below (CTA8)
There is a conflict among the United States Courts of Appeals regarding a defendant’s post-sentencing rehabilitation and whether it can support a downward sentencing variance under 18 U.S.C. § 3553(a).
Whether a federal district judge can consider a defendant’s post-sentencing rehabilitation as a permissible factor supporting a sentencing variance under 18 U.S.C. § 3553(a) after Gall v.
State v. Marquis N. Singleton, No. 2009AP002089-CR, District I, 6/23/10
court of appeals decision; pro se; Resp. Br.
Sentence Modification – DNA Surcharge
¶2 Singleton was sentenced on July 24, 2002, and the circuit court ordered, as a condition of his bifurcated sentence, that Singleton provide a DNA sample and pay the applicable surcharge.[1] Singleton’s sole challenge is made via a motion to modify his sentence under Wis. Stat. § 973.19 (2007-08), and is addressed only to the adequacy of the court’s explanation for imposition of the surcharge under Cherry,