On Point blog, page 89 of 96
Sentence Modification — New Factor — Post-Sentencing Revocation — Linkage to Intended Drug Treatment
State v. Steve Norton, 2001 WI App 245
For Norton: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether an unanticipated, post-sentencing revocation amounted to a new factor justifying modification of sentence.
Holding:
¶10. Although we agree with the State that, in general, revocation of probation in another case does not ordinarily present a new factor, the specific facts involved in this case require an exception to the general rule.
Sentence Modification — New Factor — Lesser Culpability — Not “Unknowingly Overlooked”
State v. Andre D. Crockett, 2001 WI App 235, PFR filed
For Crockett: David D. Cook
Issue:Whether facts suggesting that the defendant might have been less culpable than his codefendants amounted to a new factor justifying modification of sentence.
Holding: A new factor may be relate to facts “unknowingly overlooked” at sentencing; here, although the asserted new factor may have been unknowingly overlooked by the sentencing court,
Sentence Modification — New Factor — Escalona-Naranjo Bar to Raising
State v. John Casteel, 2001 WI App 188, PFR filed
Issue: Whether Casteel’s failure to argue in a prior new-factor based attempt to modify sentence bars him from now arguing that the special action release program, § 304.02 — a statute extant at the time of the prior motion to modify — is a new factor.
Holding:
¶17. We note that the special action parole release statute was first adopted in 1989.
Sentence Modification — New Factor: Transfer to out-of-state Prison
State v. Anthony A. Parker, 2001 WI App 111
Issue: Whether transfer to an out-of-state prison was a new factor supporting sentence modification.
Holding:
¶11. Parker contends that his transfer out of state is a new factor that frustrates the purpose of his sentence because his placement no longer coincides with the judgment of conviction confining him to ‘Wisconsin state prisons.’ Parker’s reliance upon these words is excessively literal and finds no support in the case law.
Sentencing – Factors – Exercising Right to Trial/Evaluation of Defendant’s Testimony
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the sentencing court punished the defendant for going to trial and by stressing the perceived falsity of the theory of defense.
Holding:
¶66. We do not agree with Gribble’s claim that the trial court was punishing him for “defense counsel’s lawful efforts to support the defendant’s claim of innocence.”
Sentencing – Review – Factors — Use of Pretrial Psychiatric Evaluation
State v. Joshua Slagoski, 2001 WI App 112, PFR filed 4/27/01
For Slagoski: Christopher William Rose
Issue1: Whether the results of a competency examination, which suggested that defendant presented a homicide-suicide risk, amounted to materially inaccurate information used at sentencing.
Holding:
¶9 We conclude that it is entirely reasonable that a mental competency examination designed to address a defendant’s ability to understand the proceedings and assist counsel may also address issues of future dangerousness.
Sentencing – Review – Factors — Defense Right to Present — Limited by Relevancy
State v. Shomari L. Robinson, 2001 WI App 127, 629 N.W.2d 810, PFR filed 5/7/01
Robinson: Joseph L. Sommers
Issue: Whether the trial court impermissibly limited the defense presentation at sentencing.
Holding:
¶19 What remains is for us to consider whether the trial court erroneously exercised its discretion by prohibiting Robinson from presenting his “car evidence” at sentencing. As the trial court correctly noted,
Sentencing – Review — Sentence Exceeding Statutory Maximum — Consecutive Terms of Probation — Remedy
State v. Glenn F. Schwebke, 2001 WI App 99, 242 Wis. 2d 585, 627 N.W.2d 213, affirmed on other grds., 2002 WI 55
For Schwebke: Keith A. Findley, UW Law School
Issue/Holding: The remedy for this sentence which exceeded the permissible maximum — multiple counts of probation running consecutive to one another, ¶¶25-30 — is to commute the excess portion to the total allowable term of probation.
Review – Conflict between oral pronouncement written judgment
State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: “(W)here there is conflict between a trial court’s oral pronouncement and a written judgment, the oral pronouncement controls.” ¶27, citing State v. Perry, 136 Wis. 2d 92, 114, 401 N.W.2d 748 (1987). This rule is applicable even though “the trial court’s oral pronouncement came after, rather than before,
OWI – Unauthorized Sentence – Probation without Mandatory Minimum Confinement for OWI 6th – Resentencing as remedy
State v. William P. Eckola, 2001 WI App 295
For Eckola: Gregory A. Parker
Issue: Whether the trial court erroneously exercised discretion by placing Eckola on probation for OWI-6th without requiring confinement for at least the presumptive minimum mandated by § 346.65(2)(e).
Holding:
¶15. When the circuit court, in its discretion, determines that a defendant will be placed on probation, Wis. Stat. § 973.09(1)(d) requires that the person be confined for at least the mandatory minimum period.