On Point: 36. Sentencing

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. The latter cases are implicated only when a fact is utilized to support a sentence beyond the statutory maximum;

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

Issue/Holding:

¶13      Montroy also argues that the PSI improperly included two of his juvenile adjudications, when there was no evidence that he was represented by counsel. [5] The State concedes that the Department of Corrections guidelines mandate that unrepresented juvenile adjudications should not be included in a PSI.

State v. Eduardo Jose Trigueros, 2005 WI App 112
For Trigueros: Eileen Miller Carter

Issue: Whether the trial court erroneously exercised sentencing discretion by placing too much weight on the need to protect the public, by placing defendant on probation with one year in the House of Correction, on possession with intent to deliver one gram or less of cocaine, where the State sought a sentence of 38 months including 14 months’ initial confinement.

State v. Lonnie C. Davis, 2005 WI App 98
For Davis: Pamela Moorshead

Issue: Whether the sentencing court erroneously exercised discretion by failing to consider the defendant’s youthfulness (14 years 9 months) at the time he committed the sexual assaults.

Holding:

¶16      A review of the sentencing transcript demonstrates that the trial court did not erroneously exercise its discretion when it sentenced Davis ….

State v. Eduardo Jose Trigueros, 2005 WI App 112
For Trigueros: Eileen Miller Carter

Issue/Holding:

¶8        Second, Trigueros claims that the trial court erroneously exercised its discretion because it did not consider probation as an option. Again, we disagree. In each case, the sentence imposed shall “call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” McCleary,

State v. David S. Stenklyft, 2005 WI 71, on bypass
For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding:

¶126 [T]he record of the proceedings must clearly demonstrate that the circuit court exercised its discretion and weighed the appropriate factors when the court reached its decision on sentence adjustment. An example of such balancing would be a record that showed that the circuit court considered the nature of the crime,

State v. David S. Stenklyft, 2005 WI 71, on bypass
For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding: The prosecutorial veto written into the TIS sentence-adjustment provision, § 973.195, is unconstitutional:

¶83 … “[S]hall” is interpreted as directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under Wis.

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:

¶18 An analysis of 2001 Wis. Act 109 by the Legislative Reference Bureau clearly supports the conclusion that persons sentenced under TIS-I are able to utilize the procedure set forth in Wis. Stat. § 973.195 … .

…

¶20 As discussed previously in Trujillo,

State v. Kent Kleven, 2005 WI App 66
For Kleven: Roberta A. Heckes

Issue/Holding: Where sentencing includes multiple enhancers, the court may identify the amount of confinement attributable to each enhancer, without violating the rule that an enhancer doesn’t support a separate sentence. ¶¶16-18. (The court adds, however, ¶18 n. 4, that the “better practice” is to avoid “allocating any portions of the confinement imposed among the base offense and enhancers.”)

Issue/Holding: Maximum confinement for TIS-I attempt to commit a classified felony is one-half the maximum confinement for the completed crime,

State v. Kent Kleven, 2005 WI App 66
For Kleven: Roberta A. Heckes

Issue/Holding:

¶14. We conclude that, provided the sentence imposed exceeds the maximum term of imprisonment established for the base offense, a court’s remarks attributing a portion of the sentence to an applicable enhancer does not constitute grounds to vacate that portion of the sentence. As the supreme court explained in State v.