On Point blog, page 68 of 96
Sentence Credit – Credit for Conditional Jail Time (Condition of Probation) Served While “Overlapping” with Concurrent Unrelated Prison Sentence
State v. Martin V. Yanick, Jr., 2007 WI App 30
Pro se
Issue/Holding:
¶1 … We conclude that, when a defendant has served conditional jail time and his or her probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence.
Review — Sentence After (Extended Supervision) Revocation — Reconfinement Sentence Imposed by Different Judge
State v. Twaun L. Gee, 2007 WI App 32
For Gee: Amelia L. Bizzaro
Issue/Holding: The holding of State v. Brandon E. Jones, 2005 WI App 259, ¶13, that the reconfinement judge need not review the original sentencing transcript was overruled by State v. John C. Brown, 2006 WI 131, ¶38:
¶14 In Brown,
Presentence Report — Bias of Author: Spouse of Another Agent Concurrently Responsible for Defendant’s Supervision
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: The rule of State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997) (conflict of interest where PSI author married to defendant’s prosecutor) does not extend to situation where PSI author is married to another probation agent and both are jointly supervising the defendant:
¶5 We do not believe that the same inherent bias exists in the relationship between two supervising probation agents.
Presentence Report – Miranda Warnings
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: Thexton wasn’t entitled to Miranda warnings “at the time the PSI was being prepared”:
¶8 Thexton also claims that Streekstra violated his Fifth Amendment rights when he interviewed him during the investigation. Thexton claims that Streekstra used the prior PSI as a basis for questioning him,
Presentence Report – Right to Counsel
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: The agent’s use of a prior PSI during the interview of defendant for the current case did not trigger any additional right to counsel:
¶10 Thexton further argues that his right to counsel was violated because he was unable to consult with his attorney regarding the use of the prior PSI during the interview.
Re-Sentencing – Generally
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶6 “When a resentencing is required for any reason, the initial sentence is a nullity; it ceases to exist.” Carter, 208 Wis. 2d at 154. In resentencing “the court imposes a new sentence after the initial sentence has been held invalid.” Id. at 147.
Re-Sentencing – Modification of Sentence, Distinguished
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶7 Counsel for Wood points out that published opinions have been somewhat imprecise in distinguishing between the requirements for, and effect of, sentence modification as opposed to resentencing. We acknowledge that language has, on occasion, been imprecise. …
…
¶9 Similarly, in State v.
Sentence – Modification – New Factor: Parole Policy
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding: The governor’s 1994 letter exhorting bureaucratic opposition to (pre-TIS) parole for certain crimes was not a new factor, even though the sentencing court expressly took into consideration DOC data purporting to show the likely chance of parole:
¶11 We held in Delaney that the Thompson 1994 letter was not a “new factor” in part because: (1) there was no showing that the 1994 letter had any impact on Delaney’s discretionary parole eligibility;
Sentencing – Review – Modification – “New Factor,” Generally
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶5 A new factor, as defined in Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), is
a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing,
Sentencing – Review – Excessiveness – Sexual Contact, Closeness in Age between Defendant and Minor Victim
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: Sentence of 13 years (3 IC; 10 ES) for sexual contact was not harsh and excessive, notwithstanding closeness in age between defendant and underage victim:
¶12 As to excessiveness, Thexton notes that he was close in age to the victim. The sexual contact between the two began when he was seventeen and she fourteen and ended when he was eighteen and she fifteen.