On Point: 36. Sentencing

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.

State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell

Issue/Holding:

¶16. Matke also contends that the trial court’s interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to convince a jury beyond a reasonable doubt that he had five prior OMVWI convictions.

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

Issue/Holding: The plain text of § 969.02(6) mandates that bail money be used to satisfy court costs, with no room for discretionary return to the depositor rather than payment of costs. ¶¶7-9.

This is a misdemeanor, but the relevant felony statute, § 969.03(4),

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

Issue/Holding: The sentencing court properly exercised discretion in denying eligibility for Earned Release, § 302.05(3), despite misperceiving at one point that defendant was statutorily ineligible:

¶17 … [A]t the December 6, 2004, [postconviction] hearing … [t]he court stated:

Well, of course, the Court is very familiar with Mr. 

State ex rel. Michael J. Thorson v. Schwarz, 2004 WI 96, reconsideration denied, 2004 133, affirming unpublished decision of court of appeals
For Thorson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Time spent in detention during ch. 980 proceedings may not be credited toward service of the underlying criminal sentence. ¶¶29-38.

Thorson was serving a sentence for a 980-qualifying offense,

State ex rel. Michael J. Thorson v. Schwarz, 2004 WI 96, reconsideration denied, 2004 WI 133, affirming unpublished decision of court of appeals
For Thorson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶16. The term “custody” is not defined in Wis. Stat. § 973.155. To fill this void, Wisconsin courts have relied upon the definition set forth in Wis.

State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School

Issue/Holding:

¶31. Likewise, we agree with the Criminal Penalties Study Committee that the judiciary must address the increased responsibility placed upon the sentencing court in light of truth-in-sentencing.

State v. James D. Crochiere, 2004 WI 78, affirming unpublished opinion
For Crochiere: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether post-sentencing events such as rehabilitation which would not be considered “new factors” supporting reduction of indeterminate sentence may be regarded as new factors under the determinate regime of TIS-I.

Holding:

¶9. Crochiere bases his argument for sentence reduction, in part, on this shift away from the executive branch’s participation due to the legislature’s elimination of parole.

State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School

Issue/Holding:

¶63. Gallion’s next claim on appeal is that the circuit court erred in placing undue emphasis on the character of the victim. …¶64. Under Wisconsin law,