On Point blog, page 83 of 96
Fines – Discretion to Impose
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.
Fines – Ability to Pay – Determination
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.
OWI – Multiple Enhancers – §§ 346.65(2), 939.62
State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision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.
Enhancer – Pleading – Misstating Date of Prior Convictions by One Day
State v. Robert J. Stynes, 2003 WI 65, reversing unpublished opinion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.
Enhancer — § 939.62(2m), Persistent Repeater — Validity — Due Process
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.
Enhancer — § 939.62(2m)(a), Persistent Repeater — Validity – Due Process
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.
Enhancers — Persistent Offender — §§ 939.62(2m)(a)1m, (b)2 and (c) — Comparable Prior, Since-Repealed Statute: Child Sexual Assault, § 940.225(1)(d) (1977-78)
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,
Enhancers — Multiple Enhancers — §§ 939.62(1)(b), 961.48(2)
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.
Plea Bargains — Breach: By Defendant – Challenging Prior Enhancer-Conviction
State v. Robert C. Deilke, 2004 WI 104, reversing 2003 WI App 151, 266 Wis. 2d 274, 667 N.W.2d 867
For Deilke: Kelly J. McKnight
Issue: Whether a defendant’s successful challenge to a prior plea-bargain based conviction that is being used as an enhancer in a current proceeding amounts to a breach of that prior plea bargain so as to allow reinstatement of charges dismissed under it.
Sentencing Review – Factors – Articulation by Court
State v. Nathan T. Hall, 2002 WI App 108
For Hall: Howard B. Eisenberg, Dean, Marquette Law School
Issue/Holding: Because the trial court failed to explain its reasoning, its sentence was an erroneous exercise of discretion. In particular, the trial court exceeded the PSI recommendation (107 years) by approximately 200 years, without explaining either the necessity for sentences so long “that Hall will never live long enough to serve them,”