On Point blog, page 81 of 95
Resentencing — Defendant’s Right to Presence
State v. Rodney K. Stenseth, 2003 WI App 198, PFR filed 9/2/03
For Stenseth: Robert A. Ferg
Issue: Whether violation of the defendant’s right to be present at resentencing (occasioned by the original sentence exceeding the maximum allowable period of confinement) is subject to harmless error analysis.
Holding:
¶16. Wisconsin Stat. § 971.04(1)(g) provides that a defendant shall be present “[a]t the pronouncement of judgment and the imposition of sentence.”
Presentence Report – Independent Nature of Process of Preparation Limits Party’s Ability to Attempt Ex Parte Influence
State v. Joshua L. Howland, 2003 WI App 104
For Howland: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶32. We must also note that the inappropriate nature of the contact between the district attorney’s office and the Division of Community Corrections borders on ex parte communications. Our supreme court has acknowledged the importance of the PSI to the sentencing process. State v.
Presentence Report — Assessment Tainted by Conflict of Interest
State v. Randy D. Stafford, 2003 WI App 138
For Stafford: Robert G. LeBell
Issue/Holding: A mental health professional whose assessment of the sexual assault defendant was incorporated into the presentence report and cited at length by the sentencing judge and who had, unbeknownst to the defense, treated the victim for the six months prior to the assessment, had a conflict of interest that amounted to a new factor requiring resentencing.
Sentence Modification — New Factor — PSI Assessment Tainted by Conflict of Interest
State v. Randy D. Stafford, 2003 WI App 138
For Stafford: Robert G. LeBell
Issue/Holding: A mental health professional whose assessment of the sexual assault defendant was incorporated into the presentence report and cited at length by the sentencing judge and who had, unbeknownst to the defense, treated the victim for the six months prior to the assessment, had a conflict of interest that amounted to a new factor requiring resentencing.
Sentence Modification — New Factor — Health
State v. Peter C. Ramuta, 2003 WI App 80, PFR filed 4/3/03
For Ramuta: Peter M. Koneazny, Richard D. Martin, SPD, Milwaukee Appellate
¶21. Further, Ramuta’s obesity-related health problems and his resulting shorter-than-normal life expectancy are also not new factors. See Michels, 150 Wis. 2d at 99-100, 441 N.W.2d at 280-281 (defendant’s health and its post-sentence worsening not new factors).
Sentence Modification — New Factor — Subsequent Sentence
State v. Peter C. Ramuta, 2003 WI App 80, PFR filed 4/3/03
For Ramuta: Peter M. Koneazny, Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: Subsequent sentences on charges pending at the time of this sentencing didn’t amount to a new factor, State v. Norton, 2001 WI App 245, distinguished:
¶20.
Resentencing — after grant of partial relief
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 resentencing is required on all remaining,
Modification — New Factor — General Test
State v. Peter C. Ramuta, 2003 WI App 80, PFR filed 4/3/03
For Ramuta: Peter M. Koneazny, Richard D. Martin, SPD, Milwaukee Appellate
¶8. The law appropriately recognizes that sentences may be based on what is unknowingly incomplete information, and, if they are, that there should be some mechanism to correct a resulting injustice. Thus, if after sentencing it turns out that there was something that would have been important to the sentencing court but was either unknown or unknowingly overlooked,
Modification — New Factor — TIS-II, Change in Offense Classification and Penalty Structure
State v. Jonathan R. Torres, 2003 WI App 199, PFR filed 9/18/03
For Torres: Michael Yovovich, SPD, Madison Appellate
Issue: Whether reclassification of Torres’ offense by TIS-II, 2001 Wis. Act 109 §§545-559, which substantially reduced the maximum penalty, amounts to a new factor that would support reduction of his sentence imposed under the prior, TIS-I regime.
Holding:
¶7 First, we conclude that a change in the classification of a crime,
Sentencing – Modification – New Factor – General Test
State v. Randy D. Stafford, 2003 WI App 138
For Stafford: Robert G. LeBell
Issue/Holding:
¶12. … To obtain sentence modification, a defendant must establish that (1) a new factor exists, and (2) the new factor justifies sentence modification. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor presents a legal issue which we decide de novo.