On Point: H. Modification/Review

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..

State v. Patrick H. Dalton, 2016AP6-CR,7/20/16, Distrct 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

The court of appeals here holds that Dalton is entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing move to suppress the test results from a warrantless blood draw. The record contains no evidence that exigent circumstances existed a la Missouri v. McNeely, and the officer who ordered the draw gave no indication that he ever considered seeking a warrant.

State v. Eric L. Loomis, 2016 WI 68, 6/13/06, on certification from the court of appeals, case activity (including briefs)

The developer of COMPAS says that he didn’t design it to be used in sentencing, and he won’t disclose its “trade secret” algorithm. See Pro Publica interview here. But in a 7-0 decision (with 2 concurrences) SCOW holds that if used properly, observing certain “limitations and cautions,” a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. Slip op. ¶8.

State v. Leopoldo R. Salas Gayton, 2016 WI 58, 7/6/16, affirming an unpublished court of appeals opinion, 2014 WI App 120, 358 Wis. 2d 709, 856 N.W.2d 345; case activity (including briefs)

SCOW took this case to address “whether a sentencing court may rely on a defendant’s illegal immigrant status as a factor in fashioning a sentence.” See here. In a 6-0 decision, the answer, at least on the facts of this case, is that a Wisconsin court may sentence a defendant more harshly because he is an “illegal alien.” The concurrence by Justice A.W. Bradley provides guidance to lower courts and defense attorneys about how to handle immigration status at sentencing.

State v. Loomis, which SCOW will soon decide, is being closely watched around the country. The case challenges the sentencing court’s use of an algorithm to predict the defendant’s risk of reoffending. Today’s New York Times discusses Loomis and notes that algorithms also use predictive data to decide which streets to patrol, to compile lists of people most likely to shoot or be shot, and so forth.

State v. Antonio D. Barbeau, 2016 WI App 51; case activity (including briefs)

Barbeau killed his great-grandmother when he was 14 years old, and eventually pled no contest to first-degree intentional homicide, which carries an automatic life sentence. When imposing such a sentence, the court must make a decision as to extended supervision: it can either deny any possibility of ES, or it can set a date at which the person becomes eligible, though such date must occur after the person has served at least 20 years. Wis. Stat. § 973.014(1g).

State v. Anthony R. Owens, 2016 WI App 32; case activity (including briefs)

The circuit court properly admitted the victim’s statements about who shot him under the dying declaration exception to the hearsay rule, and the admission of the victim’s statements didn’t violate the Confrontation Clause.

City of Milwaukee v. D.S., 2015AP1634, 2/2/16, District 1 (one-judge opinion; ineligible for publication); case activity

D.S., a juvenile, was ordered to register as a sex offender for life. On appeal, he argued that the circuit court relied on two types of inaccurate information: (1) a report, prepared by Dr. Paul Hesse, regarding the recidivism rate for juvenile sex offenders at Lincoln Hills, and (2) misinformation about the meaning of D.S.’s JSOAP-II scores.  He lost on both counts.

Montgomery v. Louisiana, USSC No. 14-280, 2016 WL 280758 (January 25, 2016); reversing and remanding State v. Montgomery, 141 So.3d 264 (La. 2014); Scotusblog page (includes links to briefs and commentary)

In Miller v. Alabama, 132 S.Ct. 2455 (2012), the Court held that sentencing laws mandating life without parole violate the Eight Amendment’s prohibition on cruel and unusual punishments with respect to those under age 18 at the time of their crimes; here the Court holds that Miller announced a new substantive rule that is retroactive on state collateral review.

Kansas v. Carr, USSC Nos. 14-449, 14-450, 14-452, 2016 WL 228342 (January 20, 2016); reversing and remanding Kansas v. (Jonathan) Carr, 329 P.3d 1195 (Kan. 2014), Kansas v. (Reginald) Carr, 331 P.3d 544 (Kan. 2014), and Kansas v. Gleason, 329 P.3d 1102 (Kan. 2014); Scotusblog page (includes links to briefs and commentary)

The Eighth Amendment does not require courts to instruct the jury deciding whether to impose the death penalty that the defendant does not have to prove mitigating circumstances beyond a reasonable doubt.