On Point: 36. Sentencing

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding: Evidence related to a penalty enhancer (such as a prior conviction in support of habitual criminality) is relevant only to sentence and “must be withheld from the jury’s knowledge,” ¶19, quoting Mulkovich v. State, 73 Wis.  2d 464,

State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers

Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1st strike’s conviction date precede the 2nd strike’s violation date. Although Long’s two prior strikes occurred before the current felony,

State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding:

¶8        Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969), 

State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se

Issue/Holding:

¶9        Commonly referred to as “boot camp,” the CIP is governed by Wis. Stat. § 302.045, which provides that “the [DOC] shall provide a challenge incarceration program for inmates selected to participate” after meeting the eligibility requirements for the program. Sec. 302.045(1). …

¶10      Once the trial court has made an eligibility determination,

State v. Clayborn L. Walker, 2008 WI 34, reversing 2007 WI App 142
For Walker: Amelia L. Bizzaro

Issue: Whether the judge is required, at a TIS reconfinement hearing, to have read the original sentencing transcript.

Holding:

¶3        We agree with the State and conclude that State v. Gee [3] misinterpreted our decision in Brown.

State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner

Issue/Holding:

¶81      We conclude that the school zone penalty enhancer is not unconstitutional as applied to Quintana. The legislature has sought to increase the penalty for those who commit violent crimes within 1,000 feet of “school premises.”

State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly

Issue:  Whether, on a § 939.62(2) “prior-conviction” penalty enhancer, the defendant is entitled to jury resolution that the conviction was in fact within 5 years of commission of the present offense.

Holding: 

¶52 … (W)hen Shepard and Apprendi are read together,

State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm

Issue/Holding: The sentencing court may consider uncharged and unproven offenses, ¶36; id n. 20:

State v. Leitner, 2002 WI 77, ¶45, 253 Wis.  2d 449, 646 N.W.2d 341. See also State v. McQuay , 154 Wis. 2d 116,

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue: Whether the sentencing court may order that DOC distribute “gifted” (as opposed to wage-based) funds in a prisoner’s account to satisfy a restitution obligation.

Holding:

¶12      We observe that Wis. Stat. § 973.20 does not limit the consideration of a defendant’s ability to pay out of funds derived from only earnings or wages. 

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue/Holding: Restitution order amendment, directing DOC to disburse funds from the prisoner’s account, did not violate double jeopardy although the amendment occurred three years after the original order:

¶16      Greene’s double jeopardy argument focuses on the fact that DOC, in applying the original restitution order, did not distribute funds from his accounts to pay restitution in the three years prior to the entry of the amended restitution order.