On Point: 36. Sentencing

State v. Anthony M. Schmidt, 2021 WI 65, 6/18/21, on bypass from the court of appeals; case activity (including briefs)

“We also conclude that the child pornography surcharge applies to images of child pornography that form the basis of read-in charges of sexual exploitation of a child or possession of child pornography, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography.” (¶61). What does it mean for images to be “brought into relation with” an offense? What kind of inquiry is it? Factual? Legal? We don’t know, the partial dissent doesn’t know, and as it observes, the majority seems also not to know, as they refrain from addressing any facts but the ones before them. The most reliable SCOW imperative–upholding criminal sanctions–seems once again to have made the “law development” function an afterthought.

State v. Westley D. Whitaker, 2020AP29-CR, petition for review of a published decision of the court of appeals granted 6/16/21; case activity (including briefs)

Issues Presented (from the PFR and supreme court order granting review)

1. Does it violate the First and Fourteenth Amendments and Article I, Section 18 of the Wisconsin Constitution to consider a defendant’s religious identity and impose a sentence intended to deter crime solely within his religious community?
2. If a sentencing court may consider a defendant’s religious association to deter other members of a religious community, does the “reliable nexus” test of State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994), and State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991), require congruity between the offense and the activity protected by the First Amendment?
3. Does the sentencing factor/objective of “protection of the public” permit the sentencing court to increase the sentence imposed on the defendant to send a message to an identified set of third parties that they should alter their behavior in the future, apart from generally being deterred from committing offenses like those committed by the defendant? (Added by the supreme court.)

State v. Jordan Alexander Lickes, 2021 WI 60, affirming a published court of appeals opinion, 2019AP1272-CR, 6/15/21, case activity (including briefs)

In State v. Ozuna, SCOW held that a young offender’s violation of any court-imposed conditions of probation renders expungement unavailable. Here, Lickes argued that: (1) the same rule does not apply to conditions imposed by the DOC, and (2) the circuit court has the discretion to find that an offender has satisfied the DOC’s conditions even if he has violated one or more of them and especially when, as in this case, the DOC itself requests expungement. In a split decision, SCOW rejects both arguments, making expungement a pipe dream for most young offenders.

State v. Keandrae J. Reed, 2020AP1921-CR, District 1, 6/2/21 (one-judge decision; ineligible for publication); case activity (including briefs)

After being convicted of misdemeanor theft, Reed was placed on probation and given the chance for expungement. While he successfully discharged from probation, he isn’t entitled to expungement because he didn’t do enough to pay restitution to have “successfully completed” his sentence as required by § 973.015(1m)(b).

State v. Scott William Forrett, 2021 WI App 31, petition for review granted, 9/14/21, affirmed, 2022 WI 37; case activity (including briefs)

Wisconsin permits a driver’s prior refusal to submit to a warrantless blood test as a criminal penalty enhancer for a subsequent OWI. In an open and shut opinion that is recommended for publication, the court of appeals just declared that statutory scheme unconstitutional based on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120.

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.