On Point blog, page 8 of 8
Sentencing – Review — Harshness — Exceeding Life Expectancy
State v. Peter C. Ramuta, 2003 WI App 80, PFR filed 4/3/03
For Ramuta: Peter M. Koneazny, Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: Sentence of initial confinement of 35 years not excessive:
¶25. Although we recognize that trial courts should impose “‘the minimum amount of custody’” consistent with the appropriate sentencing facts, State v.
Sentencing – Review — Harshness
State v. Christopher Kaczynski, 2002 WI App 276, PFR filed 11/20/02
For Kaczynski: Eugene Kaluzny
Issue/Holding: Sentence of 10 years, where the conduct would have supported charges carrying 45 years, isn’t harsh. ¶13.
Sentencing – Review – Excessiveness – Maximum Doesn’t “Shock Public Sentiment”
State v. Aaron O. Schreiber, 2002 WI App 75, PFR filed 3/12/02
For Schreiber: William J. Donarski
Issue/Holding: The sentencing court properly considered the three primary sentencing factors — gravity of offense, defendant’s character, need to protect public — and the weight assigned each is delegated primarily to the trial court. (Schreiber’s argument that the sentencing court shouldn’t have considered his gang affiliation, because he’d already been punished for that by having his probation revoked,
Sentencing – Review — Undue Harshness — Presumption of Correctness
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: A sentence well within the maximum (here, 44 years out of a possible 110) is presumptively not unduly harsh. ¶¶29-33.
Review — Forfeiture — “Excessive Fines Clause”
State v. Kirk J. Bergquist, 2002 WI App 39
For Berhquist: Steven H. Gibbs
Issue: Whether the state’s refusal to return guns valued at between $5000 and $7,150, following conviction for disorderly conduct, violated the Eighth Amendment Excessive Fines Clause.
Holding:
¶8. Although the term “forfeiture” does not appear in this statute, our supreme court has recognized that the result of refusing to return a weapon to a person who committed a crime using the weapon is a forfeiture.
Harsh and Excessive – Post-Sentencing Reduction of Maximum Penalty
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265, 258 Wis. 2d 473, 654 N.W.2d 446
For Gallion: Randall E. Paulson, SPD, Milwaukee Appellate
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding: Subsequent legislative reclassification of offense, which substantially reduced maximum penalty, didn’t make Gallion’s sentence harsh and excessive. ¶¶73-74.
Sentencing – Review — Excessiveness – 30 years for 1st offense
State v. David J. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999)
For Gardner: Steven P. Weiss, SPD, Madison Appellate
Gardner’s 30-year sentence is upheld as a proper exercise of discretion.
Sentence Modification: Judicial Estoppel Bar — Agreement to Recommended Sentence
Scott A. Magnuson, 220 Wis. 2d 468, 583 N.W.2d 843 (Ct. App. 1998)
For Magnuson: T. Gregory Amann
Issue/Holding:
We conclude that Magnuson is judicially estopped from asserting that the two twelve-year concurrent sentences are excessive. Although Magnuson contends he did not agree to the recommended sentence, the record belies his claim. Magnuson’s probation officer set forth the recommendation in the presentence investigation report (PSI).