On Point blog, page 17 of 37
Does SCOTUS decision holding that sentencing a juvenile to life without parole is unconstitional apply retroactively?
The Sentencing Law and Policy blog (an affiliate of the law professor blogs network) tees up the issue nicely. Their post is pasted in below.
When and how will SCOTUS take up Miller retroactivity issues?
The question in the title of this post is promoted by this local piece reporting on reactions to the Pennsylvania Supreme Court’s decision last week (reported here) that its state teens given mandatory LWOP before the US Supreme Court’s Miller ruling should not get any retroactive benefit from that decision.
Freddie Lee Hall v. Florida, USSC No. 12-10882, cert. granted 10/21/13
Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.
Lower court opinion: Hall v. State, 109 So.3d 704 (Fla. 2012)
Atkins v. Virginia, 536 U.S. 304 (2002), held that it is unconstitutional under the Eighth Amendment to execute a person who is found to be mentally retarded.
Circuit court properly exercised discretion in denying “new factor” time cut request
State v. David J. Lawrence, 2013AP796, District 4, 10/10/13; court of appeals decision (1-judge, ineligible for publication); case activity
The circuit court knew of Lawrence’s mental health diagnoses at sentencing, but after sentencing Lawrence was hospitalized after a psychological breakdown. (¶¶3-4). He requested sentence modification, arguing the court was not aware of all his diagnoses or his medication regimen. (¶5). Assuming that information was a “new factor,” the circuit court gave a reasoned explanation for why it declined to modify the sentence,
Court’s deviation from the exact language of immigration warning in § 971.08(1)(c) doesn’t entitle defendant to plea withdrawal
State v. Ali Mursal, 2013 WI App 125; case activity
Before accepting a defendant’s guilty or no contest plea the court is required to advise the defendant there may be immigration consequences. Wis. Stat. § 971.08(1)(c). While that statute prescribes a text for the required warning—complete with quotation marks—the court of appeals holds in this case that a judge’s failure to repeat that language verbatim is not by itself grounds for plea withdrawal.
Ineffective assistance of counsel — failure to demand speedy trial, communicate with defendant, and impeach the victim. Sentencing — unduly harsh sentence.
State v. Jerry Lee Carson, 2012AP2616-CR, District 1, 9/17/13; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of trial counsel
Carson, convicted of second degree recklessly endangering safety, claimed his trial lawyer was ineffective on various grounds. The court of appeals holds counsel was not ineffective for failing to:
- Demand a speedy trial. Carson was not prejudiced by the delay beyond the statutory speedy trial deadlines.
Sentencing — exercise of discretion in denying eligibility for ERP
State v. Brandon M. Pokey, 2012AP2412-CR, District 2, 8/14/13; court of appeals decision (not recommended for publication); case activity
The sentencing court did not erroneously exercise its discretion when it made Pokey, who was convicted of armed robbery of a bank, ineligible for the Earned Release Program. At sentencing the court based its decision on all of the required sentencing factors, not just on the seriousness of the offense,
Judge’s invocations of religious deity were “ill-advised,” but do not show he imposed sentence based on religious considerations
State v. Robert J. Betters, 2013 WI App 85; case activity
When sentencing of Betters for child sexual assault, the judge stated that “every child is a gift from God,” and indicated Betters’s conduct toward the victims was “an abomination in the sight of God and in the sight of man, and … totally unacceptable.” ( ¶¶4, 15). The court of appeals rejects Betters’s claim that these references show the judge sentenced Betters based on religious considerations because the “offhand religious references”
Wisconsin Supreme Court: Sentencing based on inaccurate information is not structural error, but mistake about mandatory minimum penalty in this case was not harmless
State v. Lamont L. Travis, 2013 WI 38, affirming published court of appeals decision, 2012 WI App 46, 340 Wis. 2d 639, 813 N.W.2d 702; case activity
¶9 The question of law presented to this court is whether a circuit court’s imposition of a sentence using inaccurate information that the defendant was subject to a mandatory minimum five-year period of confinement is structural error or subject to the application of harmless error analysis….
Wisconsin Supreme Court holds counsel in merit appeal may refer to PSI without asking permission from any court
In the Matter of State v. Michael Buchanan: State ex rel. Office of State Public Defender v. Wis. Court of Appeals, District IV, 2013 WI 31, on review of petition for supervisory writ; case activity
In an important decision for all lawyers who handle criminal cases in the state appellate courts, the supreme court affirms that counsel for the defendant and the state do not need permission from a court to use,
Ineffective assistance of counsel; “new factor” based sentence modification
State v. Stephen Lehman, 2011AP2821-CR, District I (not recommended for publication). Case activity.
Lehman pled guilty to 2 counts of burglary of a dwelling. The trial court sentenced him to 5 years of initial confinement and 3 years of extended supervision for each count. The court ran the sentences consecutively, ordered Lehman to pay $1,700 in restitution, and declared him ineligible for the Challenge Incarceration and Earned Release programs.