On Point: H. Modification/Review

State v. David A. Reeves, 2010AP1590-CR, District 4, 6/23/11

court of appeals decision (1-judge, not for publication); for Reeves: Anthony J. Jurek; case activity

Maximum sentence for obstructing (9 months) upheld against argument it was a) harsh and excessive; b) based on improper factors. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, reviewed and applied.

State v. Dustin M. Przybylski, 2011AP1-CR, District 2, 6/1/11

court of appeals decision (1-judge, not for publication); for Przybylski: Michael S. Holzman; case activity

OWI sentence consecutive to unrelated 15-year sentence upheld, despite joint recommendations of concurrent time, against argument it was fashioned mechanistically rather than as exercise of discretion, State v. Martin, 100 Wis. 2d 326, 302 N.W.2d 58 (Ct. App.

Brown v. Plata, USSC No. 09-1233, 5/23/11

Remedial injunction, issued by a federal court pursuant to the PLRA, ordering California to reduce its prison population on account of deficiencies in medical care caused by overcrowding, upheld.

Lengthy, 5-4 opinion (91 pp. pdf file) on something (“conditions of confinement”) outside the boundaries of SPD representation: why should you be interested? For one thing, as On Point readership surveys have demonstrated time and again over the years,

State v. Omer Ninham, 2011 WI 33, affirming, 2009 WI App 64; for Ninham: Frank M. Tuerkheimer, Bryan Stevenson; amici: Byron C. Lichstein, Robert R. Henak, G. Michael Halfenger, et al.; case activity

Sentencing – Life without Parole for Juveniles – Cruel and Unusual Punishment

Sentence of life without parole imposed on juvenile (Ninham was 14 when he committed the crime) upheld,

State v. Shantell T. Harbor, 2011 WI 28, affirming unpublished decision; for Harbor: Joseph E. Redding; case activity

Sentence Modification – New Factor

The “new factor” test for sentence modification has split into “two divergent lines of cases”: Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (fact(s) highly relevant to, but not brought out at, 

State v. Thomas J. Hoffman, 2010AP1327-CR, District 2, 3/30/11

court of appeals decision (1-judge, not for publication); for Hoffman: Kathleen A. Lindgren; case activity

Hoffman’s challenge to the length of his sentence became moot once he had fully served it.

¶6     At the outset, the State contends that Hoffman’s appeal is moot; he has served his entire seven-month sentence and this court’s review on his motion for sentence modification will have no practical effect. 

State v. Anthony M. Smith, 2009AP2867-CR, District 1/4, 3/3/11

court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity

Trial court’s limitations on cross-examination with respect to State witness’s “prior mental condition” or use of medications (prescribed for his Bipolar Disorder and Attention Deficit Disorder) upheld as proper exercise of discretion. The witness was taking his medication at the time of the alleged offense,

Pepper v. U.S., USSC No. 09-6822, 3/2/11

In light of the federal sentencing framework described above, we think it clear that when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.

The thrust of the opinion is statutory,

7th circuit decision, habeas review of summary order of Wisconsin court of appeals, No. 2004AP2242-CR

Habeas – Procedural Bar, Sentencing Objection

Pomotor’s failure to object to information (the number of beers he allegedly consumed) in his alternative presentence report, worked a procedural default to his susbequent challenge to the sentencing court’s reliance on that information

Promotor accurately argues that a procedural defaultdoes not bar consideration of a federal claim unless the procedure is a “firmly established and regularly followed state practice.”  Smith v.

State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Guilty Plea – Withdrawal – Presentence

The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.

The particular grounds asserted – no factual basis for plea;