On Point blog, page 66 of 95
Restitution – “Victim”: Obligor of Bail Forfeited by Defendant’s Violation of Bond Condition
State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08 For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate Issue/Holding: The defendant’s mother, who posted subsequently-forfeited cash bail, is a “victim” for restitution purposes: ¶8 … Agosto committed the “crime” of bail-jumping. He pled guilty and the circuit court entered a judgment convicting him of that crime. […]
Restitution — Law Enforcement Officer Not “Victim,” § 973.20(1r) re: Injuries Suffered While Apprehending Defendant
State v. Anthony Houston Lee, 2008 WI App 185 For Lee: Carl W. Chessir Issue/Holding: ¶11 As noted, Wis. Stat. § 973.20 authorizes a trial court to order restitution to victims of a “[c]rime considered at sentencing,” which includes “any crime for which the defendant was convicted and any read-in crime.” Sec. 973.20(1g)(a) & (1r). We conclude […]
Sentencing – Factors – Harm to Victim: Threats While Case Pending, Inability to Attribute to Defendant
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08 For Payette: Robert R. Henak; Amelia L. Bizzaro Issue: Whether threats made to the victims, while the prosecution was pending, to try to dissuade them from testifying were relevant to sentence despite absence of evidence linking threats to the defendant himself. Holding: ¶41 The court process […]
Sentencing – Review – Articulation of Factors – Ruminations about Defendant’s Mental Health
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 For Sherman: John J. Grau Issue/Holding: The sentencing court’s observations to the effect that the defendant was “a sick man” didn’t amount to “unsupported findings about his mental health: ¶14 At Sherman’s postconviction hearing, the court indicated that its comments did not reflect medical diagnoses, […]
Sentencing – Review – Articulation of Factors – Consideration of Sentences in Other, Similar Cases (Individualized Sentencing)
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 For Sherman: John J. Grau Issue/Holding: ¶15 Sherman claims the only evidence about his mental health came from his expert, Dr. Gerald Wellens. Sherman claims the court failed to consider his expert’s opinion. However, at sentencing, the court expressly considered Wellens’ opinion. The court noted […]
Sentencing Guidelines – Failure to Consider – Harmless, Where Sentence Concurrent to Other, Unchallenged Sentence
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 For Sherman: John J. Grau Issue/Holding: Sentencing failure to consider applicable guidelines, § 973.017(2)(a), was harmless error, at least where the controlling sentence was untainted by the error: ¶9 We conclude that the circuit court’s failure to consider the sentencing guidelines for the two Wis. Stat. […]
Enhancer – Proof: Timing (“Post-Trial”)
State v. Shane P. Kashney, 2008 WI App 164 For Kashney: Paul G. LaZotte, SPD, Madison Appellate Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment). ¶1 […]
DNA Surcharge – Generally
State v. Ray Shawn Cherry, 2008 WI App 80 For Cherry: John T. Wasielewski Issue/Holding: ¶5 The statutes governing this issue are clear. If a trial court sentences a defendant to a felony involving a sex crime contrary to Wis. Stat. §§ 940.225, 948.02(1) or (2) 948.025, or 948.085, the trial court must order the defendant to pay […]
(Permissive) DNA Surcharge – Exercise of Discretion
State v. Ray Shawn Cherry, 2008 WI App 80 For Cherry: John T. Wasielewski Issue: Whether the sentencing court properly exercised discretion in imposing a DNA surcharge, where it misconstrued such action as mandatory rather than permissive and ignored the defendant’s prior such assessment. Holding: ¶9 We hold that in assessing whether to impose the DNA […]
Allocution, Victim’s – Prohibiting Defendant from Looking at Victim
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08 For Payette: Robert R. Henak; Amelia L. Bizzaro Issue/Holding: ¶51 The trial court, having just heard a lengthy description of Payette’s violent and abusive conduct toward RS, directed that Payette not look at his victim during her statement to the court, because, the trial court […]