On Point: 36. Sentencing

State v. Teresa L. Clark, 2020AP1058-CR, bypass granted 4/27/21; case activity

Issue: (adapted from State’s COA brief):

When the State uses a prior OWI conviction to enhance the charge and sentence for a subsequent OWI offense, a defendant may collaterally attack the prior conviction. If the defendant proves that her right to counsel was violated in the prior case, the conviction may not be used to enhance the charge and sentence in the new case. Does the burden shift to the State when there is no transcript available to show that the circuit court violated the defendant’s right to counsel?

State v. C.G., 2018AP2205, review granted 4/27/21; case activity

Issues presented:

Does Wis. Stat. § 301.45, the statute governing juvenile sex offender registration, unconstitutionally infringe on Ella’s First Amendment right to freedom of speech by preventing her from legally changing her name to reflect her gender identity?

Does requiring Ella to register under Wis. Stat. § 301.45 amount to cruel and unusual punishment in violation of the Eighth Amendment?

Jones v. Mississippi, USSC No. 18-1259, 2021 WL 1566605, April 22, 2021; Scotusblog page (including links to briefs and commentary)

“In a case involving [sentencing] an individual who was under 18 when he or she committed a homicide [to life without parole], a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” (Slip op. at 5) (emphasis added).

County of Green Lake v. Lori Melchert, 2020AP473, District 2, 2/24/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Melchert’s challenge to a prior OWI that was improperly treated as a first offense comes way too late under City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, and City of Cedarburg v. Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463.

State v. Timothy D. Wright, 2020AP1578, 2/25/2021, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wright worked at Christmas Mountain. Over the course of a couple of months he allegedly directed several racist and threatening rants at colleagues, including threats to kill some of them. A supervisor eventually called the police, and Wright was fired and charged with four counts of disorderly conduct. He eventually pleaded to two with the other two read in. The circuit court ordered Wright to pay $14,755 in restitution to the corporation that owns Christmas Mountain at $100 per month. Wright argues this was improper for three reasons: because the corporation was not statutorily a “victim” of his conduct; because the claimed damages–the cost to hire armed guards after he was fired–were not “special damages … which could be recovered in a civil action”; and because the circuit court failed to consider his inability to pay.

State v. Michael A. Rakel, 2017AP2519, 2/17/21, District 1 (not recommended for publication); case activity (including briefs)

Michael Rakel was convicted of the 1st degree reckless homicide of Andre Taylor, who had a teenage daughter. Taylor was under a court order to pay child support to her. The court of appeals held that Rakel must now pay restitution in an amount equal to Taylor’s child support obligation.  However, the record was unclear about whether the mother of Taylor’s daughter was eligible to receive the restitution payment for the daughter. The court of appeals remanded the case for further proceedings on that issue.

State v. James A. Jones, 2021 WI App 15; case activity (including briefs)

Sometimes friends or relatives post bail so that a loved one charged with a crime can be released. This published decision holds that when charges are dismissed and read in at sentencing, and the court doesn’t order restitution on those charges, the bond money must be returned to the payors. This rule applies even to global plea deals where the defendant pleads “no contest” to and is ordered to pay restitution on some charges, but other charges are dismissed and read in without a restitution order.

State v. Alfonso C. Loayza, 2021 WI 11, 2/11/21, reversing a per curiam decision of the court of appeals; case activity (including briefs)

The supreme court unanimously holds that the state proved by a preponderance of the evidence that Loayza was convicted of OWI in California in 1990, making his current Wisconsin offense a eighth offense.

State v. Westley D. Whitaker, 2021 WI App 17, petition to review granted, 6/16/21, affirmed, 2022 WI 54; case activity (including briefs)

This appeal raises a hot-button issue likely to interest SCOW. Just last year an investigative journalist reported that Amish communities do not report sexual assaults of children to social workers or police. Parents and church elders strive to address the problem themselves. (NPR story). That’s what happened in Whitaker’s case. He repeatedly sexually assaulted his younger sisters then stopped when he was 14. His crimes went unreported until he was 25, well after he had left the Amish community. He pled to one count of 1st-degree child sexul assault and requested a “fines only” sentence. The circuit court found no risk that he would re-offend and no need for rehabilitation. Yet it imposed a prison sentence in order to “send a message” to the Amish community that this behavior is unacceptable and members need to report it.

State v. C.G., 2021 WI App 11; petition for review granted 4/27; case activity

Ella–a pseudonym–was adjudicated delinquent for a sexual assault committed when she was 15. Ella’s legal name is masculine in association; during her juvenile disposition she was transitioning to a female identity. In this appeal she challenges the circuit court’s refusal to stay sex offender registration under Cesar G., and also submits that the registry’s prohibition on changing her legal name violates her First Amendment right to express her identity. The court of appeals upholds the circuit court’s discretionary decision on the former claim; on the latter it offers three blithe paragraphs of discussion before casually announcing–in a decision that is set to be published, and thus binding–that requiring a transgender woman to use a man’s name implicates no First Amendment concerns whatsoever.