On Point: 36. Sentencing

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether the sentencing court erroneously exercised discretion, or violated equal protection, in setting an excessive length of extended supervision so as to ensure that the defendant satisfies the restitution order.

Holding: “¶39. We conclude that the trial court’s sentencing rationale, taken as a whole, did not constitute an erroneous exercise of discretion.

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler

Issue/Holding:

¶21. Finally, Stenzel asserts that the court erroneously exercised its discretion because the sentence is unduly harsh and unconscionable. When a defendant argues that his or her sentence is unduly harsh or excessive, we will hold that the sentencing court erroneously exercised its discretion “only where the sentence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.” 

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler

Issue/Holding:

¶6. In State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the Wisconsin Supreme Court revisited the seminal case in sentencing jurisprudence, McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971) …¶7. The appellate standard of review is limited to determining if the sentencing court erroneously exercised its sentencing discretion.

 State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz

Issue/Holding:

¶54. It is “‘well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.’” United States v. Watts, 519 U.S. 148, 152 (1997) (per curiam) (quoted source omitted,

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: (The singular importance of this case requires this very lengthy excerpt, albeit without the footnotes which don’t seem to add substantive content.)

¶38. In light of the increased responsibility placed upon the sentencing court,

State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals
For Jackson: Joseph E. Schubert

Issue/Holding:

¶42 Applying the rule of lenity, we conclude that Wis. Stat. § 973.01(2)(b)6 should be read together with Wis. Stat. § 973.01(2)(c) in calculation of the maximum term of confinement for unclassified felonies with penalty enhancers under TIS-I. We apply the 75% rule of Wis.

State v. Michael D. Lewis, 2004 WI App 211
For Lewis: Timothy A. Provis

Issue/Holding: Sentence of life imprisonment without possibility of parole, as persistent repeater due to prior conviction for sexual assault of a child, on a current conviction for child enticement isn’t cruel / unusual punishment under the 8th amendment. ¶¶16-18.

State v. Franciollo L. Jones, 2004 WI App 212, PFR filed 11/11/04
For Jones: Syovata Edari; Ellen Henak (on PFR), SPD, Milwaukee Appellate

Issue: Whether the trial court properly ordered Jones to pay a DNA surcharge even though he had already provided a DNA sample in an earlier case.

Holding:

¶5 WISCONSIN STAT. § 973.047 obligates the trial court to require anyone convicted of a felony to provide a DNA specimen.

State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter that defines substantive offenses; and it incorporates the elements of offenses located elsewhere),

State v. Miyosha White, 2004 WI App 237, PFR filed 12/1/04
For White: Leonard Kachinsky

Issue/Holding: A sentencing court exercising discretion on eligibility for the earned release program, § 973.01(3g), has authority to determine not only whether but also when the defendant is eligible for the program. The language and purpose of the earned release statute is “almost identical” to the “boot camp” statute, § 973.01(3m),