On Point: 36. Sentencing

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),

State v. David A. Lehman, 2004 WI App 59, PFR filed 3/4/04
For Lehman: Leonard D. Kachinsky

Issue/Holding: Sentencing court may impose 4-year waiting period for entry into Challenge Incarceration Program (“boot camp”), §§ 302.045, 973.01(3m):

¶17. The intent of the legislature is therefore advanced by an interpretation of Wis. Stat. § 973.01(3m) that allows a sentencing court to determine not only whether a defendant is eligible for the CIP,

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. Rudolph L. Jackson, 2004 WI App 132, PFR filed 6/15/04
For Jackson: Andrea Cornwall, SPD, Milwaukee Appellate

Issue: Whether the prosecutor violated an agreement not to make a specific sentencing recommendation by expressing outrage at recommendations proffered on Jackson’s behalf and by urging the court to take into account the deterrent effect of its sentence.

Holding:

¶14. Jackson contends that the prosecutor breached the plea negotiation as his statements constituted an “end-run”

State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate

Issue: Whether an increase in sentence on re-sentencing violated due process,

State v. Tommie L. Cole, 2003 WI 59, on certification
For Cole: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding:

¶9. The court of appeals asks that we determine what combination of confinement in prison and extended supervision constitutes the presumptive minimum sentence when a statute provides that an offender “shall be imprisoned for not less than 3 years.”10 In other words,

State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision
For Delaney: Joseph R. Cincotta

Issue/Holding:

¶1 … Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney’s penalty twice for count one of his judgment of conviction.

State v. Patty E. Jorgensen, 2003 WI 105, affirming unpublished opinion of court of appeals
For Jorgensen: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding1: Sentencing guidelines for specified offenses (namely: §§ 346.63 (1) (b) or 346.63(5) [PAC offenses]) are within the authority granted by § 346.65(2m)(a). ¶¶16-18. However, the guidelines do not apply to an offense under § 346.63(1)(a) (OWI), therefore “it is inappropriate for a circuit court to simply apply the guidelines as the sole basis for its sentence in a § 346.63(1)(a) case.” ¶27.