On Point: 3. Harsh and excessive

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.

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. C.G., 2022 WI 60, 7/7/22, affirming a published court of appeals decision, 2018AP2205; case activity

C.G. has the masculine legal name her parents gave her when she was born. When she was 15 years old she committed a sexual assault. At the time she was identifying as a male, but during and after the pendency of her juvenile case she began to transition to female. She wants to change her legal name to reflect her gender. But in Wisconsin, those on the registry are forbidden to change their names. C.G.–who is primarily identified by the pseudonym “Ella” in this confidential juvenile case–argued that forcing her to retain a masculine legal name violates her First Amendment right to free speech, and her Eighth Amendment right to be free from cruel and unusual punishment. Four justices disagree.

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).

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.

Rico Sanders v. Scott Eckstein, 7th Circuit Court of Appeals No. 19-2596 (Nov. 30, 2020)

Sanders was give a 140-year sentence for sexual assaults he committed when he was 15 years old. He’ll be eligible for parole in 2030, when he’s 51. He argues he’s entitled to habeas relief because the Wisconsin Court of Appeals unreasonably rejected his claim that his sentence violates the Eighth Amendment under recent U.S. Supreme Court decisions dealing with life sentences for juveniles. The Seventh Circuit rejects his claim.

State v. Paris Markese Chambers, 2019AP17-18-CR, 5/12/20, District 1 (not recommended for publication); case activity (including briefs)

The State charged 17 year old Chambers with 8 crimes involving car theft, damage to property, and bail jumping across two cases. His maximum sentence exposure was 29.5 years and a $75,000 fine. The trial court imposed a global sentence of 8.5 years of initial confinement and 13.5 years extended supervision. On appeal Chambers argued that his global sentence was harsh and unconscionable.

Jones v. Mississippi, USSC No.  18-1259, certiorari granted 3/9/20.

Question presented:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

On February 26th, SCOTUS dismissed Randall Mathena, Warden v. Lee Boyd Malvo, USSC No. 18-217, which raised the same issue. Jones is a replacement case for Malvo. 

Holguin-Hernandez v. United States, USSC No. 18-7739, cert granted 5/30/19

Question presented:

Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.