On Point: 36. Sentencing

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).

State v. Christopher Kaczynski, 2002 WI App 276, PFR filed 11/20/02
For Kaczynski: Eugene Kaluzny

Issue/Holding: Sentence of 10 years, where the conduct would have supported charges carrying 45 years, isn’t harsh. ¶13.

State v. Christopher Kaczynski, 2002 WI App 276, PFR filed 11/20/02
For Kaczynski: Eugene Kaluzny

Issue/Holding:

¶9. It has long been the law in Wisconsin that, unless a defendant’s rights against self-incrimination are implicated (and Kaczynski makes no claim that they are), it is “entirely proper” for a trial court “to consider on sentencing, the defendant’s cooperativeness as manifested by his refusal to name his accomplices.” 

State v. Eric S. Fenz, 2002 WI App 244
For Fenz: Jacob W. Gobel

Issue: Whether the sentencing court may take into account the amount of jail credit to be awarded, in the narrow instance where the court wants to assure a term of imprisonment sufficiently lengthy to allow exposure to a treatment program.

Holding:

¶10. Fenz argues that Klimas and Struzik established a “bright line”

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,

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.