On Point blog, page 23 of 37
After Sentence Has Been Set Aside, Resentencing Court May Consider Defendant’s Postsentencing Rehabilitation
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,
Rogelio Promotor v. Pollard, 7th Cir No. 09-2292, 12/14/10
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.
Guilty Plea – Withdrawal – Presentence, Undisclosed Exculpatory Evidence, Waiver Rule; Ineffective Assistance of Counsel; Sentencing
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court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply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;
Sentencing – Burden to Show Inaccurate Information
State v. Jason C. Walker, 2010AP83-CR, District 3, 11/2/10
court of appeals decision (recommended for publication); for Walker: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply
¶1 Jason Walker was sentenced after revocation of his probation. The sentencing court considered probation violations that Walker denied committing. Because of his denial, Walker argues the court could not consider the violations unless the State proved he committed them.
Jury Instructions; Ineffective Assistance; Record on Appeal; Self-Defense
State v. Morris L. Harris, 2009AP2833-CR, District 1, 10/13/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Lesser-Included Instruction – Battery
Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,
State v. Shantell T. Harbor, 2009AP1252-CR, Wis SCt rev granted 9/22/10
decision below: unpublished; for Harbor: Joseph E. Redding; court of appeals briefs: BiC; Resp.; Reply
Issues (from Table of Pending Cases):
Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).
Whether a defendant demonstrated ineffective assistance of counsel under Strickland v.
Probation Search
State v. Seneca Joseph Boykin, 2009AP2499-CR, District 2, 9/22/10
court of appeals decision (3-judge, not recommended for publication); for Boykin: Mark A. Schoenfeldt; BiC; Resp.
A probation agent may not evade the warrant requirement by acting as a “stalking horse” for the police in conducting a warrantless search of a probationer’s residence, ¶10. In this instance, probation officer Navis, acting on reliable information that Boykin was using and selling cocaine,
Sentence – Factors – Exercise of Constitutional Right; Sentence – Effective Assistance of Counsel
State v. Sabian L. Yunck, 2009AP3020-CR, District 1, 8/17/10
court of appeals decision (1-judge, not for publication); for Yunck: Byron C. Lichstein; BiC; Resp.; Reply
Sentence – Factors – Exercise of Constitutional Right
Convicted of violating a domestic abuse order forbidding contact with the mother of his child, Yunck argues that sentence was impermissibly based on his exercise of a constitutional right,
Sentencing – Factors
State v. William Webber, 2010AP9-CR, District 3, 8/17/10
court of appeals decision (1-judge, not for publication); for Webber: Chris A. Gramstrup; BiC; Resp.
On charges of 4th degree sexual assault and obstructing, the sentencing court properly considered, as both aggravating and mitigating, Webber’s 30-year history as a law enforcement officer, as well as his nonconsensual videotaping of his ex-wife.
Judicial Bias – Sentencing after Revocation
State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10
court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.