On Point: 36. Sentencing

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.

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.

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.”

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.

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,

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.

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,

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.

State v. Joel O. Peterson, 2001 WI App 220, PFR filed 9/21/01
For Peterson: William E. Schmaal

Issue: Whether the charge may be amended to include a repeater allegation, otherwise untimely under § 973.12(1), if accomplished as part of a plea bargain.

Holding:

¶24 … (A)llowing a defendant to agree to amend an information to add repeater allegations as part of an agreement to plead guilty or no contest is consistent with the goal of providing the defendant all the information about the potential punishment at the time he or she pleads guilty or no contest.

State v. Tronnie M. Dismuke, 2001 WI 75, 244 Wis. 2d 457, 628 N.W.2d 791, reversing and remanding, 2000 WI App 198, 238 Wis. 2d 577, 617 N.W.2d 862
For Dismuke: Richard D. Martin, William S. Coleman, SPD, Milwaukee Appellate<

Issue: Whether a defendant may have to bear costs of being produced from prison for court appearances.

Holding:

¶4 We reverse.