On Point: 36. Sentencing

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court of appeals decision (1-judge, not for publication); for Palubicki: Michael D. Petersen; BiC; Resp.; Reply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.

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court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply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.

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court of appeals decision (3-judge, not recommended for publication); for Morgan: Ralph Sczygelski; BiC; Resp.; Reply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,

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),

State v. Landray M. Harris, 2010 WI 79, reversing unpublished decision; for Harris: Michael K. Gould, SPD, Milwaukee Appellate; Resp.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.

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court of appeals decision (3-judge; not recommended for publication); for Grabowski: Jamie F. Wiemer; BiC; Resp.; Reply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;

Docket

Decision below (CTA8)

Questions Presented:

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.

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,

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.