On Point: 36. Sentencing

State v. Thomas M. Parkman, 2021AP27, 9/16/21, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

In February 2020, a few weeks before the COVID-19 pandemic really got going in Wisconsin, the circuit court sentenced Parkman to six months in jail for three misdemeanors stemming from an incident in which he attacked his ex-girlfriend with pepper spray. He was given an April report date, but the circuit court sua sponte delayed that date in recognition of the dangers posed to jail inmates by COVID. It has been delayed ever since. This is an appeal of the circuit court’s denial of Parkman’s motion to modify his sentence to probation with an imposed-and-stayed jail sentence: that is, he was asking the court to permanently stay the jail (so long as his probation was not revoked).

State v. Scott William Forrett, 2019AP1850-CR, petition for review of a published decision of the court of appeals granted 9/14/21; case activity (including links to briefs)

Issue presented

Wisconsin’s escalating OWI penalty scheme counts a person’s refusal to consent to a blood draw as a basis for enhancing the penalty for future offenses. Is that scheme unconstitutional because it penalizes a defendant’s exercise of the Fourth Amendment right to be free from an warrantless search?

State v. Eric Jean Overvig, 2019AP1786, 9/8/21, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Overvig was arrested for OWI-3rd and promptly put himself into intensive alcohol treatment. When it came time for sentencing, the trial court imposed probation with 20 days of conditional jail time. Ordinarily, under Wis. Stat. § 346.65(2)(am)3., the minimum for OWI-3rd would be 45 days, but there’s an exception in Wis. Stat. § 346.65(2)(cm) pertaining to certain probationers who undergo drug treatment: for them, the minimum is 15. The state appeals, arguing Overvig didn’t qualify for this exception, but the court of appeals holds that he did.

State v. James A. Carroll, Jr., 2021AP375, 8/26/21, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Carroll was charged with second-degree sexual assault; he ultimately took a deal and pleaded to fourth-degree. The circuit court required him to register as a sex offender for 15 years after the end of his supervision. The court of appeals rejects Carroll’s claims that his counsel’s deficiencies led to the plea, and that new factors justified modifying his sentence to remove the registration requirement.

State v. Christopher W. LeBlanc, 2020AP62-CR, District 2, 7/30/21 (not recommended for publication); case activity (including briefs)

If a sentencing court imposes an excessive term of initial confinement (IC) or extended supervision (ES) when sentencing a defendant under Truth-in-Sentencing (TIS), the defendant “is entitled to a new sentencing hearing as a matter of law unless the nonexcessive term of IC or ES is at the maximum, in which case the court has the discretion to commute the excessive component to the maximum term pursuant to Wis. Stat. §973.13 (2019-20) without holding a new sentencing hearing.” (¶1).

State v. Avery B. Thomas, Jr., 2021 WI App 59; case activity (including briefs)

Thomas was arrested for and charged with criminal conduct while he was on federal supervision. He was held on cash bail till after his plea, when his bail was modified to a signature bond. He remained in custody, though, because the feds had put a revocation hold on him. He was eventually sentenced after revocation on the federal case, and about a month after that he was sentenced in the Wisconsin case. (¶¶2-4). The Wisconsin court erred in denying Thomas credit for the 48 days he was in custody between the date his bail was modified and the date of his federal sentencing.

State v. Lisa Rena Lantz, 2020AP742-CR, District 3, 7/27/21 (not recommended for publication); case activity (including briefs)

Lantz was convicted of conspiring to deliver methamphetamine between September 2015 and March 2016 and of soliciting the delivery of methamphetamine in February and March 2016. The court of appeals rejects Lantz’s argument that the charges are multiplicitous. It also rejects her challenge to her sentences.

State v. Alexandrea C.E. Throndson, 2020AP1081-CR, District 4, 7/15/21 (not recommended for publication); case activity (including briefs)

Throndson raises two due process challenges to her sentencing: that the judge relied on inaccurate information and was objectively based. The court of appeals rejects both.

State v. Larry A. Brown, 2021AP12-CR, District 1, 6/29/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Brown was charged with theft by embezzlement and accepted a deferred prosecution agreement for the charge. He subsequently picked up new charges of THC possession and carryng a concealed weapon, for which he was given probation. That of course led to revocation of the DPA and sentencing on the theft. Brown asked for expunction of the theft conviction, which the circuit court denied. It properly exercised its discretion in doing so.

State v. Michael James Brehm, 2020AP266, 6/29/21, District 1 (not recommended for publication); case activity

Brehm was arrested after a neighbor called 911 to report that he was firing a gun out his window into the air. Police recovered a gun and Brehm admitted to the shooting. He eventually pleaded guilty to being a felon in possession of a firearm.