On Point: 36. Sentencing

State v. Keith S. Krause, 2006 WI App 43
For Krause: Roger G. Merry

Issue/Holding: Because collateral attack on a prior conviction used as a sentencing enhancer is limited to denial of counsel, and because the right to counsel does not attach to a civil proceeding, a refusal revocation is not subject to collateral attack on its use as an OWI enhancer:

¶12      In an enhanced-penalty situation,

State v. Thomas A. Mikulance, 2006 WI App 69
Pro se

Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies only where the defendant files a motion alleging that the State has failed to prove the prior conviction necessary to sustain the habitual criminal status (by proof or by admission) or when the penalty imposed is longer than permitted by law for a repeater,” ¶¶1,

State v. James Hubert Tucker, Jr., 2005 WI 45, affirming summary order of court of appeals
For Tucker: Donald T. Lang, SPD, Madison Appellate

Issue/Holding:

¶2 We conclude, based on our holding in State v. Trujillo, 2005 WI 45, ___ Wis. 2d ___, ___ N.W.2d ___, that the reduced maximum confinement penalties under TIS-II do not constitute new factors when a defendant such as Tucker moves for the modification of sentences imposed under TIS-I.

State v. Jose A. Trujillo, 2005 WI 45, affirming summary order of court of appeals
For Trujillo: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding:

¶13 We define a new factor as “an event or development which frustrates the purpose of the original sentence,” Champion, 258 Wis. 2d 781, ¶4, and recognize it to be more than a change in circumstances since the time of sentencing. 

State v. Alan J. Ernst, 2005 WI 107, on certification
For Ernst: Jeffrey W. Jensen

Issue1: Whether violation of the standards mandated by State v. Klessig, 211 Wis. 2d 194 ¶24, 564 N.W.2d 716 (1997) for valid waiver of counsel supports a collateral attack on a prior conviction.
Holding1:

¶25      … For there to be a valid collateral attack,

State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05
For Baker: William E. Schmaal, SPD, Madison Appellate

Issue/Holding: Sentence credit may not be used to satisfy court costs, where costs were imposed under provisions which do not grant authority to waive or otherwise avoid their imposition:

¶11                        We turn now to whether credit for pre-sentence incarceration time may be applied to satisfy court costs.  

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate

Issue/Holding:

¶13      Second, before a trial court may order restitution “there must be a showing that the defendant’s criminal activity was a substantial factor in causing” pecuniary injury to the victim in a “but for” sense. Longmire, 272 Wis. 2d 759, ¶13; State v.

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen, SPD, Madison Appellate

Issue/Holding:

¶12      First, restitution is limited to “special damages … which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.” Wis. Stat. § 973.20(5)(a). The term “special damages” as used in the criminal restitution context means any readily ascertainable pecuniary expenditure paid out because of the crime. 

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate

Issue/Holding1: Lost profits are “special damages,” and therefore subject to a restitution order, because the underlying causal criminal conduct could give rise to a civil action based on the torts of conversion and interference with prospective contractual relationships, ¶¶16-17.

Issue/Holding2: Because at least a minimal amount of speculation inheres to such a claim,

State v. Brandon E. Jones, 2005 WI App 259
For Jones: Amelia L. Bizarro

Issue: Whether the sentencing court provided sufficient reasons for Jones’s reconfinement following revocation of extended supervision.

Holding:

¶9        ….  The key is for the circuit court to provide sufficient information about its reasoning so as to allow for meaningful review. The “need for meaningful appellate review of a trial court’s decision to take away a person’s liberty must be our polestar.” Swiams,