On Point: 36. Sentencing

Dolan v. United States, USSC No. 09-367, 6/14/10

This case concerns the remedy for missing a statutory deadline. The statute in question focuses upon mandatory restitution for victims of crimes. It provides that “the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” 18 U. S. C. §3664(d)(5). We hold that a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution—at least where,

State v. Melody P.M., No. 2009AP2994, District IV, 6/10/10

court of appeals decision (1-judge; not for publication)

Civil conviction for an ordinance violation may be expunged under § 973.015.

Can’t provide any of the background beyond what’s recited in the opinion, because all traces have been removed from both circuit court and appellate dockets. Makes sense: if you’re going to order expungement then the order ought to have practical meaning.

U.S. v. O’Brien, USSC No. 08-1569, 5/24/10

§ 924(c)(1)(B)(ii), which exposes a person convicted of possessing, using or carrying a machinegun during certain federal crimes to a mandatory minimum sentence of 30 years is an offense element subject to proof beyond reasonable doubt at trial rather than a penalty enhancer provable by mere preponderance of the evidence at sentencing.

The border between offense element and sentence enhancer remains indistinct at crucial junctures.

Graham v. Florida, USSC No. 08-7412, 5/17/10

In sum, penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders. This determination; the limited culpability of juvenile nonhomicide offenders; and the severity of life without parole sentences all lead to the conclusion that the sentencing practice under consideration is cruel and unusual. This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.

court of appeals decision (3-judge, not recommended for publication); for Sterling: Dianne M. Erickson; BiC; Resp.; Reply

Charging Decision – Judicial Involvement
Increase in the charge, following trial judge’s veiled suggestion to the prosecutor that such an increase would be appropriate, wasn’t occasioned by judicial interference with prosecutorial discretion, ¶¶16-22.

Initially charged with first-degree reckless injury, Sterling was ultimately convicted on an amended charge of attempted first-degree intentional homicide.

decision below: 2009 WI App 156; for Carter: Craig M. Kuhary

Issues:

Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)?

What methodology are trial courts to employ in determining whether to count out-of-state OWI-related offenses for sentence enhancement purposes under Wis. Stat. § 343.307?

court of appeals decision (3-judge; not recommended for publication)

Machner Hearing
Postconviction motion conclusory, didn’t require Machner hearing on effective assistance.

Recusal
Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias.

Sentencing
Sentence taking into account primary factors and much less than maximum penalty not erroneous exercise of discretion.

State v. Thomas H.L. Barfell, 2010 WI App 61; for Barfell: Roberta A. Heckes; BiC; Resp. Br.; Reply Br.; App. Supp. Br.; Resp. Supp. Br.

Sentencing – Guidelines, General Purpose

¶7        While Barfell is correct that he “has a due process right ‘to be sentenced on the basis of true and correct information’ pertaining to ‘the offense and the circumstances of its commission … and the defendant’s personality,

USSC decision

Armed Career Criminal Act
State conviction for battery, which requires only intentional physical contact no matter how slight, doesn’t qualify as “violent” under federal Armed Career Criminal Act, 18 U. S. C. §922(g)(1).

There appears to be no Wisconsin equivalent to the ACCA, which severely limits the utility of this case for state practice.

court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.

“Booking Exception” to Miranda
Questioning to determine Pugh’s “true identity” fell within “booking exception.”

Sentencing Discretion
Sentence upheld where “well within maximum” and addressed “the three primary factors.”