On Point: 36. Sentencing

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

¶22. Ramuta complains that the cumulative terms of initial confinement-thirty-five years, until he turns seventy-six-are excessive. He claims that the trial court did not adequately explain why the sentences for all but one of his crimes should be, to use Ramuta’s word,

State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: In sentencing for OWI, “it was not error for the court to seek guidance from the local guidelines” in determining the fine on an OWI sentence. ¶10, citing State v. Jorgensen, 2003 WI 105, ¶¶2, 27, __ Wis. 2d __, 667 N.W.2d 318,

State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶11. Second, Kuechler argues that “[e]ven if the size of the fine could be based exclusively on a guideline recommendation, the court here failed to give adequate reasons for choosing the more severe of two alternative guidelines.” We disagree. The court exercised appropriate discretion when it chose to impose a fine based on the guidelines that highlighted aggravating factors rather than on the guidelines that highlighted mitigating factors.

State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶13. Fourth, Kuechler contends that the trial court imposed the fine without first ascertaining his ability to pay. We agree. Because Kuechler timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue.

State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision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State v. Robert J. Stynes, 2003 WI 65, reversing unpublished opinion
For Stynes: Patrick M. Donnelly, SPD, Madison Appellate

Issue: Whether the complaint’s misstatement (by one day) of the date of prior convictions in support of a repeater allegation deprived Stynes of adequate notice, contrary to § 973.12(1) and due process.

Holding:

¶2. We conclude that the complaint provided Stynes with the required notice of the predicate convictions.

State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03
For Wield: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: The persistent repeater law, § 939.62(2m) is constitutional; State v. Radke, 2003 WI 7, 259 Wis. 2d 13, 657 N.W.2d 66, controls. ¶¶20-21.

State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146
For Radke: William E. Schmaal, SPD, Madison Appellate

Issue/Holding:

¶5. The precise question raised, therefore, is whether the “two strikes” law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense.

State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03
For Wield: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: In determining whether a prior conviction under a since-repealed statute is a serious child sex offense comparable to § 948.02(1) so as to invoke the persistent repeater law, the “elements only” test of Blockburger v. United States, 284 U.S. 299 (1932) doesn’t apply: “Thus,

State v. Paul R. Maxey, 2003 WI App 94
For Maxey: Douglas I. Henderson

Issue/Holding: A sentence may be enhanced by both the general repeater provision of § 939.62(1)(b) (1999-2000) and § the specific repeat drug offender provision of § 961.48(2) (1999-2000), given the rationale of State v. Richard W. Delaney, 2003 WI 9:

¶14. In summary, the law of Wis.