On Point blog, page 86 of 96
Sentencing – Review – Excessiveness – Maximum Doesn’t “Shock Public Sentiment”
State v. Aaron O. Schreiber, 2002 WI App 75, PFR filed 3/12/02
For Schreiber: William J. Donarski
Issue/Holding: The sentencing court properly considered the three primary sentencing factors — gravity of offense, defendant’s character, need to protect public — and the weight assigned each is delegated primarily to the trial court. (Schreiber’s argument that the sentencing court shouldn’t have considered his gang affiliation, because he’d already been punished for that by having his probation revoked,
Sentencing – Review — Undue Harshness — Presumption of Correctness
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: A sentence well within the maximum (here, 44 years out of a possible 110) is presumptively not unduly harsh. ¶¶29-33.
Sentencing – Review — Inaccurate Information — Trial Court Disclaimer of Reliance not Controlling
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: Trial court disclaimer (via postconviction ruling) of reliance on information challenged as inaccurate isn’t binding: rather, appellate court “may independently review the record to determine the existence of any such reliance.” ¶¶27-28. Here, the record shows that this disclaimer “was, at least in part,
Review — Forfeiture — “Excessive Fines Clause”
State v. Kirk J. Bergquist, 2002 WI App 39
For Berhquist: Steven H. Gibbs
Issue: Whether the state’s refusal to return guns valued at between $5000 and $7,150, following conviction for disorderly conduct, violated the Eighth Amendment Excessive Fines Clause.
Holding:
¶8. Although the term “forfeiture” does not appear in this statute, our supreme court has recognized that the result of refusing to return a weapon to a person who committed a crime using the weapon is a forfeiture.
Harsh and Excessive – Post-Sentencing Reduction of Maximum Penalty
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265, 258 Wis. 2d 473, 654 N.W.2d 446
For Gallion: Randall E. Paulson, SPD, Milwaukee Appellate
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding: Subsequent legislative reclassification of offense, which substantially reduced maximum penalty, didn’t make Gallion’s sentence harsh and excessive. ¶¶73-74.
Sentencing – Review — Inaccurate Information — Procedure for Challenging
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:
¶22. A defendant who asks for resentencing because the court relied on inaccurate information must show both that the information was inaccurate and that the court relied on it. Id. The defendant carries the burden of proving both prongs-inaccuracy of the information and prejudicial reliance by the sentencing court-by clear and convincing evidence.
Sentencing Review – Factors – Minimum Custody
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶23. McCleary further recognized that “[t]he sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public,
Mandatory Penalty – Controlled Substances, Suspension/Revocation of Operating Privileges
State v. Jacob E. Herman, 2002 WI App 28, PFR filed 1/16/02
For Herman, Jack E. Schairer, Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶1 Jacob Herman appeals from the sentencing portion of a judgment convicting him of possession of THC contrary to WIS. STAT. § 961.41(3g)(e). The circuit court suspended Herman’s operating privilege for six months after concluding that it had no discretion to impose less than the minimum suspension mandated by WIS.
Expunction, § 973.015 — Application to Prosecutor and Law Enforcement Records
State v. Anthony J. Leitner, 2002 WI 77, affirming 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207
For Leitner: Jefren Olsen, SPD, Madison Appellate
Issue: Whether the expunction statute, § 973.015, requires prosecutors and law enforcement agencies to expunge their records documenting the facts underlying an expunged conviction.
Holding:
¶38. Although the Wisconsin legislature has not explicitly set forth the purpose of Wis.
Enhanced Penalties — Waiver of Objection to Sufficiency of Repeater Proof
State v. James O. Edwards, 2002 WI App 66, PFR filed 2/18/02
For Edwards: Glenn C. Cushing, SPD, Madison Appellate
Issue: Whether failure to object to exhibits (uncertified copy of judgment of conviction; DOC fax indicating prior periods of confinement) waived an argument that the state failed to prove Edwards’ repeater status.
Holding: Failure to object to documentation that facially establishes repeater status waives the issue of sufficiency of proof;