On Point: H. Modification/Review

State v. Thatcher R. Sehrbrock, 2022AP2153-CR, 8/8/24, District IV (authored); case activity

Sehrbrock, convicted of robbery with use of force as PTAC, appeals the judgment of conviction and order denying his postconviction motion in which he challenged a condition of probation requiring that an ignition interlock device be installed on any motor vehicle that he owns or operates. He argued that the IID condition was unreasonable and its term was harsh and excessive. The COA affirms in a 2-1 decision.

Jared L. Spencer v. Michael Meisner, 21-cv-0326 (E.D. Wis. 4/26/24).

In an intriguing habeas win, the district court swats away the usual arguments about “reliance” and “harmlessness” in order to find that Spencer’s constitutional right to be sentenced on the basis of accurate information was violated.

State v. Tracy Laver Hailes, 2021AP1339-CR, 5/9/23, District 1, (recommended for publication); case activity (including briefs)

In a decision recommended for publication, the court of appeals holds that under §973.01(2)(c) a circuit court may apply either §939.62(1) (governing habitual criminality) or §961.48 (governing second or subsequent offenses) to enhance a penalty, but it may not apply both. While the circuit court erroneously applied both enhancers in this case, the court of appeals nevertheless denied Hailes’s claims for plea withdrawal, sentence modification, and resentencing.

State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR

The fact that some of Socha’s prior OWI offenses have been lawfully vacated since he was sentenced may constitute a new factor justifying sentence modification, so the circuit courts erred in denying Socha’s motions for sentence modification without a hearing.

State v. Isaac M. Gabler, 2022AP995-CR, District 2, 04/19/23 (one-judge opinion, ineligible for publication); case activity

Gabler pled no contest to violating a temporary restraining order (TRO). The circuit court placed him on probation and denied his request to be eligible for expungement after determining that the public should be able to see that Gabler violated a TRO. Thereafter, the circuit court granted Gabler’s § 806.07 motion to vacate the underlying harassment injunction in part because the TRO upon which it was based was invalid. Nevertheless, the court affirms the circuit court’s denial of Gabler’s postconviction motion to reopen his sentencing hearing on the issue of expungement because “there was a temporary restraining order in place and that order had been violated.” (Opinion, ¶17).

State v. Amber C. Debree, 2022AP1311-CR, 02/08/23, District II (1-judge opinion, ineligible for publication); case activity (including briefs)

Debree’s disorderly conduct conviction stemmed from a physical altercation she had with her husband immediately after Debree learned he had impregnated her adult daughter. The sentencing court placed Debree on probation for two years after it questioned whether Debree was “truly accepting responsibility for her actions” and expressed concern about her criminal record. In response to the concerns about her criminal record, Debree moved the court to modify her sentence based on her history of being abused by her husband, which provided additional context to her actions in this case and some explanation for her criminal record. Ultimately, the court of appeals affirms the circuit court’s denial of her new factor claim because Debree could not show that her claimed new factor was “unknowingly overlooked by all of the parties.” (Opinion, ¶8).

State v. Dreama F. Harvey, 2022 WI App 60; case activity (including briefs)

A jury convicted Harvey of reckless homicide by the delivery of heroin. On appeal, she notes that the jury instructions would have permitted conviction on the theory that she either aided and abetted another supplier or was part of the chain of distribution–that is, that she supplied the person who actually sold the heroin to the decedent. But there was no evidence she’d done any of those things: if she’d committed the crime, all the evidence showed that it was by selling the heroin directly to the buyer, who ingested it and died. The verdict forms were general: the jury was asked only to determine guilt or innocence, not whether Harvey was the principal, an aider, or a higher-up in the chain. So, Harvey says, we can’t know whether the jury convicted her based on one of the other two theories for which there was no evidence, and her conviction must be reversed.

State v. Leroy Rice, Jr., 2022AP244-CR, 9/14/22, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rice sought resentencing based on an inadequate waiver of his right to be physically present at his sentencing per §971.04(1)(g) and based on a new factor: the circuit court overlooked his substance abuse needs at the time of sentencing and thus failed to make him eligible for substance abuse programming (SAP). Successful completion of SAP would entitle him to early release.  The court of appeals rejected both arguments.

State v. Jonathan L. Liebzeit, 2021AP9-CR, District 3, 8/30/22 (not recommended for publication); case activity (including briefs)

In 1997, a circuit judge sentenced Liebzeit to life without the possibility of parole for a homicide he committed at the age of 19. In 2019, after hearing a presentation at a judicial education seminar about juvenile brain development and shortly thereafter sentencing an 18-year-old for a crime, the judge decided to to contact Liebzeit’s lawyer to suggest a sentence modification may be appropriate based on the new factor of the brain development research. After defense counsel filed a sentence modification motion the court modified Liebzeit’s sentence to make him eligible for paroled after 25 years based on two new factors: 1) new scientific understanding of brain maturity in adolescents; and 2) Liebzeit’s brain damage from his inhalant use. (¶¶4-22). The court of appeals holds the circuit court erred because Liebzeit didn’t prove either new factor.

State v. Singh, 2021AP1111-CR, 8/18/22, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Singh challenges his 2005 conviction for OWI, first offense. He first asks for a writ of coram nobis vacating the conviction. Alternatively, he asks that his conviction be vacated or amended under State v. Forrett, 2022 WI 37, 401 Wis. 2d 678, 974 N.W.2d 422, which held that an OWI penalty cannot be increased because of a prior revocation stemming from a refusal to submit a warrantless blood draw.