On Point: H. Modification/Review

Docket

Decision below (CTA8)

Questions Presented:

There is a conflict among the United States Courts of Appeals regarding a defendant’s post-sentencing rehabilitation and whether it can support a downward sentencing variance under 18 U.S.C. § 3553(a).

Whether a federal district judge can consider a defendant’s post-sentencing rehabilitation as a permissible factor supporting a sentencing variance under 18 U.S.C. § 3553(a) after Gall v.

court of appeals decision; pro se; Resp. Br.

Sentence Modification – DNA Surcharge

¶2        Singleton was sentenced on July 24, 2002, and the circuit court ordered, as a condition of his bifurcated sentence, that Singleton provide a DNA sample and pay the applicable surcharge.[1] Singleton’s sole challenge is made via a motion to modify his sentence under Wis. Stat. § 973.19 (2007-08), and is addressed only to the adequacy of the court’s explanation for imposition of the surcharge under Cherry,

Graham v. Florida, USSC No. 08-7412, 5/17/10

In sum, penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders. This determination; the limited culpability of juvenile nonhomicide offenders; and the severity of life without parole sentences all lead to the conclusion that the sentencing practice under consideration is cruel and unusual. This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.

court of appeals decision (3-judge; not recommended for publication)

Machner Hearing
Postconviction motion conclusory, didn’t require Machner hearing on effective assistance.

Recusal
Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias.

Sentencing
Sentence taking into account primary factors and much less than maximum penalty not erroneous exercise of discretion.

court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.

“Booking Exception” to Miranda
Questioning to determine Pugh’s “true identity” fell within “booking exception.”

Sentencing Discretion
Sentence upheld where “well within maximum” and addressed “the three primary factors.”

court of appeals decision; for Haywood: Robert E. Haney

Battery to Peace Officer, § 940.20(2), Elements
It is no defense to battery-to-officer that the officer refused to leave the premises when the resident withdrew consent to enter, because acting “lawfully” is not an element of the offense: “a law-enforcement officer need not be acting ‘lawfully’ for what he or she does to be done in the officer’s ‘official capacity.’

State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding: The initial sentence was “illegal” (because the court did not order sufficient time on extended supervision). The court granted defendant’s motion for resentencing (because of the illegality) and ordered an increase in supervision time (rather than reduction in confinement time, which would have accomplished the same purpose).

State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se

Issue/Holding: DOC determination that an inmate isn’t eligible for CIP doesn’t constitute a new factor, notwithstanding the sentencing court’s determination that he is eligible.

¶11      Here, the trial court determined that Schladweiler was eligible for the CIP. … The sentencing court expressly indicated that participation in the CIP is a possibility to be ultimately determined by the department,

State v. Anthony L. Prineas, 2009 WI App 28
For Prineas: Raymond M. Dall’Osto, Kathryn A. Keppel

Issue/Holding: Prineas was convicted on 2 counts of 2nd-degree sexual assault, and acquitted on another 4; the PSI recommended 6-8 years, but he was sentenced to 10 IC, 10 ES and a concurrent 30-year term of probation; though a first-time offender, the disposition is upheld against a claim of harsh and excessive sentence,

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: The sentencing court need not state separately why it chooses consecutive rather than concurrent terms; rather, this determination is made by considering the same factors as inform sentence length, ¶¶45-46.