On Point blog, page 69 of 96
Sentencing Review – Exercise of Discretion: Adequacy of Linkage of Objectives to Length
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: The sentencing court satisfied Gallion’s required linkage:
¶11 … Here, the court explained that it did not consider Thexton’s conduct so serious that it required Thexton to be incarcerated for the length of time that might be appropriate for other sex offenders,
Fines – Exercise of Discretion – Articulation of Sentencing Objectives and Determination of Ability to Pay
State v. Ahern Ramel, 2007 WI App 271
For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶14 A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. See id. Here, however, with no explanation from the sentencing court of how the fine imposed advanced those objectives,
Enhancer – Timing of Prior Conviction – Tolling During “Intensive Sanctions”
State v. Steven L. Pfeil, 2007 WI App 241
For Pfeil: John P. Tedesco, SPD, Madison Appellate
Issue/Holding: Time spent in custody of the (now-lapsed) division of intensive sanctions tolls the limitation period for prior convictions, § 939.62(2):
¶2 …. We conclude that supervision under the intensive sanctions program constitutes “actual confinement” within the meaning of Wis. Stat. § 939.62(2). The intensive sanctions program operates as a correctional institution,
Allocution – Timing of Exercise of Right – Remedy for Violation
State v. Quantae T. Hines, 2007 WI App 39
For Hines: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: A defendant has a right to allocute during a reconfinement proceeding, the remedy for violation of which is resentencing, ¶¶18-20.
The outcome is largely controlled by State v. John C. Brown, 2006 WI 131, which held that reconfinement is essentially a sentencing proceeding.
Earned Release Program – Petition for Eligibility under Pre-Effective Date (7/26/03) Sentence: DOC Approval Required but Refusal to Take Position = Approval
State v. Kathy J. Johnson, 2007 WI App 41
For Johnson: Jeremy Perri, SPD, Milwaukee Appellate
Issue: Whether DOC policy, for inmates under sentence commencing prior to July 26, 2003, to take no position on an ERP petition constitutes approval of the petition under Wis. Stat. § 302.05(3)(e).
Holding:
¶8 Wisconsin Stat. § 302.05(3)(e) governs inmate petitions for the determination of eligibility for the ERP for inmates sentenced prior to the effective date of § 302.05,
OWI – State’s Appeal: Collateral Attack on Prior OWI Conviction – Non-Final Order, Permission to Appeal Required
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.
Sentence Modification – Necessity of Postconviction Motion, Even Following Resentencing
State v. Roger S. Walker, 2006 WI 82, affirming as modified summary order
For Walker: James Rebholz
Issue/Holding: In order to obtain review, a defendant must file a postconviction motion to modify sentence, even if the event was a re-sentencing which came to the same result as originally imposed.
¶37 In the hope of clarifying appellate procedure, we conclude that when a defendant seeks modification of the sentence imposed at resentencing,
Review — Reconfinement Sentence (After Revocation of Extended Supervision) – Exercise of Discretion
State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
For Brown: Randall E. Paulson, SPD, Milwaukee Appellate
Amicus: Robert R. Henak and Amelia L. Bizzaro; Walter J. Dickey & David E. Schultz
Issue/Holding:
¶22 We conclude that a reconfinement decision, like an initial sentencing decision, involves the circuit court’s discretion, and we review the circuit court’s decision to determine whether that discretion was erroneously exercised.
Sentencing – Review — Inaccurate Information — Test
State v. Larry A. Tiepelman, 2006 WI 66, reversing 2005 WI App 179
For Tiepelman: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether, on a claim that the sentence violated due process because based on inaccurate information, the defendant must show not only sentencing court reliance on the inaccurate information, but also prejudicial reliance.
Holding:
¶2 We hold that in a motion for resentencing based on a circuit court’s alleged reliance on inaccurate information,
Enhancer – Waiver of Objection to Sufficiency of Repeater Proof
State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding: Failure to object to the manner of proving a repeater allegation (via CCAP) did not constitute waiver of an objection that the proof was insufficient:
¶51 The State contends that we concluded in Saunders that an objection to the sufficiency of the evidence of habitual criminality must be made in the circuit court or it is waived.