On Point: H. Modification/Review

State v. Westley D. Whitaker, 2020AP29-CR, 2022WI 54, 7/5/22, affirming a publisher court of appeals opinion, 2021 WI App 17; case activity (including briefs)

As a teenager, Whitaker repeatedly sexually assaulted his sisters. Though aware of the assaults, neither his parents nor the Amish elders reported them to the authorities. Whitaker pleaded to one count of 1st-degree sexual assault of a child. On appeal, he argues that the circuit court improperly sentenced him by referencing his Amish faith and stating an intent to send a message to the Amish community. SCOW affirmed, but the majority and concurrences highlight concerns about how “improper sentencing factor” claims are evaluated.

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. Ricky Rodriguez, 2021AP2053-Cr, 6/14/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rodriguez was convicted of two misdemeanors and placed on probation in early 2017. a few months later, he committed two felonies and was sentenced to prison. His probation for the misdemeanors was revoked, and he was sentenced to 9 months in jail consecutive to any other sentence. In his pro se appeal, he argued that his sentence after revocation cannot, as a matter of law, run consecutive to the sentence for his felonies based on Drinkwater v. State, 69 Wis. 2d 60, 230 N.W.2d 126 (1975). The court of appeals says that it can.

State v. Jimmie L. Blount, 2021AP1943-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

At one sentencing hearing on two different cases, the circuit court imposed on one case a 4-year bifurcated prison sentence—2 years’ confinement and 2 years’ extended supervision—and on the other ordered 3 years of probation. The court said the probation would be concurrent to the ES on the first case, which would’ve added another year onto the “global” disposition of 5 years. Both lawyers pointed out the probation has to be either concurrent with or consecutive to the total bifurcated sentence, so the judge ordered the probation to be consecutive, thus increasing the “global” disposition to 7 years. The judge’s need to correct its initial error didn’t amount to a new factor justifying sentence modification.

State v. Rebecca Sue Ferraro, 2021AP1654-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Ferraro pled to and was sentenced for OWI, third offense, before the blood alcohol test result of her blood draw was available. At sentencing the preliminary breath test result was bandied about as one of the aggravating factors. A few days after sentencing, the BAC result arrived. Turns out it was lower than the PBT. That is not a new sentencing factor because it’s not highly relevant to the sentence imposed; and even if it was, the circuit court properly concluded it didn’t merit sentence modification.

State v. Justin M. Church, 2021AP751-CR, District 3, 6/1/22 (not recommended for publication); case activity (including briefs)

At a pretrial hearing the circuit court made what the court of appeals characterized as an “ill-advised and troubling” attempt at humor (¶26), but it didn’t demonstrate that the circuit court prejudged the sentence it was going to impose or otherwise demonstrate a serious risk of actual bias.

State v. Michael Lee Muehl, 2021AP1755-CR & 2021AP1758-CR, District 4, 3/31/21 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court sentenced Muehl to prison and made him eligible for the earned release programs. Turns out Muehl was ineligible for those programs, so he filed a motion to modify his sentence on the grounds that his ineligibility was a “new factor”—that is, a fact highly relevant to the imposition of sentence that was not known to the judge at the time of sentencing because it wasn’t in existence or was unknowingly overlooked. State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. (¶¶2-10). Although a defendant’s ineligibility for earned release programming   might be a new factor in some cases, it isn’t here because Muehl hasn’t established his ineligibility was “highly relevant” to the sentencing decision.

State v. Octavia W. Dodson, 2022 WI 5, 2018AP1476, 1/26/22, affirming an unpublished per curiam court of appeals decision; case activity (including briefs)

Dodson pleaded guilty to second-degree homicide. He’d shot and killed Freeman, who he (apparently erroneously) believed had earlier rear-ended his car. Dodson had pursued Freeman’s car and Freeman pulled over. Dodson said Freeman had run at him shouting racial epithets; that’s when Dodson shot him.

State v. T.A., 2020AP1350, 12/28/21, District 3 (1-judge opinion, ineligible for publication); case activity

Tanner (16) had sex with a girl (16) after she told him to “stop.” The circuit court adjudicated him delinquent and imposed but stayed a requirement that he register as a sex offender. Subsequently, the court lifted the stay and ordered Tanner to register as a sex offender for 15 years.  The court of appeals here reverses the “lift of stay” and orders a new hearing because the circuit court relied on an inaccurate interpretation of Tanner’s J-SOAP-II score at the original hearing.

State v. Dallas R. Christel, 2020AP1127-1128-Cr, 12/8/21, District 2 (not recommended for publication); case activity (including briefs)

Christel argued that §940.235, which criminalizes strangulation and suffocation, (1) violates substantive due process on its face and as applied to him, (2) is overbroad, and (3) is void for vagueness. He also argued for a new-factor-based sentence modification on his bail-jumping convictions. The court of appeals torpedoed every claim.