On Point: 36. Sentencing

State v. Joseph A. Kayon, 2002 WI App 178
For Kayon: Ronald J. Sonderhouse

Issue/Holding: Both the replacement cost of a television stolen by the defendant, and rental fees of a television while the case was pending, may be recovered in restitution. The rental fees represent “loss of use” damage that could be claimed in a civil action and therefore qualify as a special damage.

(T)he standard to be applied to such recovery is that of reasonableness under all the circumstances of the particular case. 

State v. William A. Rouse, 2002 WI App 107, PFR filed 5/8/02
For Rouse: Morris D. Berman

Issue/Holding: Time spent by a bank’s salaried employees investigating the crime (forgery) is subject to restitution because,

while the bank’s employees were investigating Rouse’s forgeries, they were prevented from doing other work for the bank, and thus the bank lost all value of their services during that time.

State v. Timothy J. Helm, 2002 WI App 154, PFR filed 6/11/02

Issue: Whether resentencing, to correct an illegal sentence, violated double jeopardy because it resulted in an increase in the original sentence.

Holding: On sentence after revocation, the trial court reimposed probation on one of the counts; this was an unauthorized disposition which the trial court properly corrected by subsequently resentencing to an active term of imprisonment on that count.  

State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: ¶39 n. 1:

Groth was sentenced on all three counts at the same hearing and, therefore, the court’s determination of his sentence on any of the counts may well have affected its determination and structuring of his sentences on all three.

State v. Dawn M. Champion, 2002 WI App 267, PFR filed 12/2/02
For Champion: Patricia L. Arreazola

Issue: Whether the defendant’s early completion of all available rehabilitation programs is a new factor justifying reduction of the confinement portion of her sentence.

Holding:

¶13. Our review of the legislative history of 1997 Wis. Act 283 demonstrates that the legislature intended something inconsistent with Champion’s proposal.

State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky

Issue/Holding: Defendant’s new-found realization that his behavior was caused by childhood sexual exploitation isn’t a new factor justifying sentence reduction: “¶25 … Just as a new expert opinion based on previously known or knowable facts is nothing more than the newly discovered importance of existing evidence … not newly discovered evidence for purposes of plea withdrawal,

State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook

Issue/Holding: Reversal of defendant’s conviction in another case is new factor (where remaining, valid sentence was concurrent to vacated sentence) upon which trial court may, but is not required, to reduce sentence.

State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky

Issue/Holding: The trial court erred in granting a motion to modify sentence without either seeking the state’s response or holding a hearing. Procedure on motion to modify sentence is similar to that for a post-conviction motion under § 974.06(3) — if the motion is obviously non-meritorious, the trial court should deny it outright;

State v. Robert L. Noll, 2002 WI App 273

Issue: Whether a new-factor based motion to modify sentence may be rejected as untimely under § 973.19.

Holding: The motion invoked the trial court’s inherent authority to modify, and therefore § 973.19 and its 90-day deadline was inapplicable. ¶5. The two procedures are distinct. Under § 973.19 a defendant may within 90 days of sentence “assert[] an erroneous exercise of discretion based on excessiveness,

State v. Aaron O. Schreiber, 2002 WI App 75, PFR filed 3/12/02
For Schreiber: William J. Donarski

Issue/Holding: “A sentencing court may consider writings and statements otherwise protected so long as there is a sufficient nexus to the defendant’s conduct and where the writings are relevant to the issues involved.” ¶16, citing Dawson v. Delaware, 503 U.S. 159, 164 (1992).