On Point blog, page 86 of 95
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;
Enhancer — Judgment on Prior Entered After Commission of Enhanced Offense
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding: A guilty plea suffices to establish a qualifying repeater-enhancement, even though the judgment of conviction on that plea isn’t entered until after commission of the offense being enhanced. ¶¶9-14.
Enhanced Penalties — Proof — Admission: More Required
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding:
¶5 An admission from a defendant stating, “I am a repeater,” without more, is insufficient to constitute an admission of a prior conviction under WIS. STAT. §973.12(1). As the circuit court indicated in its colloquy, “repeater” and “habitual offender” are legal, not factual terms, and a defendant may not be aware of what he or she is admitting.
Enhancer — § 973.01(2)(c), Bifurcated Sentence — Application to Extended Supervision — Remedy
State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App
Issue: Whether the extended supervision portion of truth-in-sentencing, § 973.01, supports repeater enhancement, § 939.62(1)(b).
Holding: Because specifies that “confinement” may be enhanced, applying the principle that specification works an exclusion of non-enumerated items, the extended supervision portion of a sentence is not subject to repeater enhancement.
Double Jeopardy – Sentence: Defendant’s Fraud — No Expectation of Finality
State v. Ary L. Jones, 2002 WI App 208
For Jones: Arthur B. Nathan
Issue/Holding:
¶14. The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void and double jeopardy will not bar subsequent resentencing to place the defendant in the position he or she would have been in if the fraud or corruption had been exposed at the time of the original sentence.
Enhancer – § 939.62(2m)(d), Persistent Offender — Comparable Crime, Foreign Conviction – Determination
State v. Leonard T. Collins, 2002 WI App 177
For Collins: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶2. We agree with Collins that Wis. Stat. § 939.62(2m)(d) requires circuit courts to determine independently whether an out-of-state crime is comparable to a Wisconsin “serious felony,” even if the defendant admits that he or she is a persistent repeater. However, because we can conclude as a matter of law that “second degree murder”