On Point: 36. Sentencing

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,

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding:

¶14    Montroy also argues a new PSI is necessary because the inaccurate information will continue to prejudice him in the future. He cites Wis. Admin. Code § DOC 328.27 (Nov. 2002) for examples of the various uses for a PSI beyond sentencing. However, Wis. Stat. § 973.08(2) requires that the transcript of Montroy’s sentencing hearing be part of his record. 

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

Issue: Whether the TIS-II reduction of penalty, such that this TIS-I defendant was sentenced to confinement exceeding what would have been the TIS-II maximum, is a “new factor” supporting modification of sentence.
Holding:

¶21 We are not persuaded by Trujillo’s attempt to convince us to distinguish Hegwood and overrule Torres.

State v. John Doe, 2005 WI App 68
For John Doe: Amelia L. Bizzaro (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”)

Issue/Holding: “(A) defendant’s substantial and important assistance to law enforcement after sentencing may constitute a new factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted,” ¶1.

¶8.

State v. Frederick W. Prager, 2005 WI App 95
For Prager: Daniel P. Fay

Issue: Whether, six days after original sentencing and imposition of probation, the State’s proffered new factor (that defendant had quitclaimed the jointly owned farm to his wife) supported a modification to an active prison term.

Holding: Although the term of probation was premised in part on the economic hardship that defendant’s wife would suffer if he were sentenced to prison (¶¶4,

State v. John Doe, 2005 WI App 68
For John Doe: Amelia L. Bizzaro (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”)

Issue/Holding:

¶6. Thus, sentence modification on the basis of a new factor is a two-step process. Id. First, the defendant must demonstrate, by clear and convincing evidence, that there is a new factor justifying a motion for sentence modification. 

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding: Wisconsin discretionary guideline regime is not governed by the holdings of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005), ¶¶20-24.

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding1: Though information before the sentencing court was indisputably inaccurate, the court took remedial action by ordering that this information be stricken, and thus Montroy can’t satisfy his burden of showing actual reliance on inaccurate information. ¶¶9-11. (State v. Anderson, 222 Wis. 2d 403,

State v. Edward W. Fisher, 2005 WI App 175
For Fisher: Eileen Miller Carter

Issue/Holding: 

¶16            Fisher’s contentions grossly misrepresent the record. Assuming the court’s oral ruling contained some ambiguity, the written judgment of conviction and the conditions of extended supervision are crystal clear with respect to what conduct the conditions cover. See Jackson v. Gray, 212 Wis. 2d 436,