On Point: 36. Sentencing

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, 

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.  

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,

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. 

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,

State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision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.

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶72      Wisconsin Stat. § 973.06 permits the court to impose a lengthy list of costs upon an unsuccessful defendant. At sentencing, the court may require a probationer to reimburse the county or the state, as applicable, “for any costs for legal representation . . . for the defense of the case.”

State v. Donald Odom, 2006 WI App 145
For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial

Issue/Holding: Odom is entitled to full sentence credit on both his reconfinement and new sentence, given that they are concurrent, ¶34:

(B)ecause Odom was sentenced on the same day to concurrent sentences for his revocation of extended release and the new burglary charge, he is entitled to dual credit.

State v. Lee Terrence Presley, 2006 WI App 82
For Presley: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:   Sentence credit is required for for days spent in jail between dates of revocation of extended supervision in an earlier case and sentencing on both the revoked supervision and a new case.

¶10      Presley submits that Beets requires sentence credit until the day he was sentenced for the extended supervision revocation—the same day he was sentenced on the new charge—because like the offender in Beets,

State v. Earl W. Haase, 2006 WI App 86, (State’s) PFR filed 5/17/06
For Haase: Glenn L. Cushing, SPD, Madison Appellate

Issue: Whether restitution may be ordered for damage caused to a squad car destroyed by fire during pursuit of the defendant.

Holding:  A governmental “agency must be a direct victim of the criminal conduct to be reimbursed for a loss,