On Point blog, page 6 of 37
Unauthorized stay of sentence should be remedied by resentencing, not vacating of stay
State v. Caleb J. Hawley, 2018AP1601-CR, District 4, 3/28/19 (one-judge decision; ineligible for publication); case activity (including briefs)
The judge who sentenced Hawley after revocation of probation stayed the sentence and ordered it to start some 14 months down the road, when Hawley would finished serving the 18 months of conditional jail time ordered in a different case. That stay was illegal, and the remedy is resentencing—not, as Hawley argues, credit for the time he was in custody since the day of his sentencing after revocation.
SCOTUS tackles juvenile life-without-parole sentences again
Randall Mathena, Warden v. Lee Boyd Malvo, USSC No. 18-217, certiorari granted 3/18/19
Montgomery v. Alabama, 136 S. Ct. 718 (2016)), held that the new constitutional rule announced in Miller v. Alabama, 567 U.S. 460 (2012), applies retroactively to cases on collateral review. Did the the Fourth Circuit Court of Appeals err in concluding that Montgomery could be interpreted as modifying and substantively expanding the Miller rule itself, when the issue presented in Montgomery was only the retroactivity of that rule?
SCOTUS to decide whether states may abolish the insanity defense
Kahler v. Kansas, USSC No. 18-6135, certiorari granted 3/18/19
Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?
Defendant’s travelling to Wisconsin to commit crime was not improper sentencing factor
State v. Marshawn Terell Johnson, 2017AP2445-CR, District 3, 3/19/19 (not recommended for publication); case activity (including briefs)
In sentencing Johnson for possession of heroin with intent to delivery, the circuit court remarked that he’d traveled to Superior from Chicago to commit his crime. The sentencing court’s consideration of that fact did not violate the Privileges and Immunities Clause of the U. S. Constitution.
Sentencing challenges rejected
State v. Angela L. Staten, 2018AP1506-CR, District 1, 3/19/19 (not recommended for publication); case activity (including briefs)
Staten and her two co-defendants engaged in a course of tax fraud that netted them over $200,000 in tax refunds that didn’t belong to them. Staten, the first of the three sentenced, argues that her sentence was unduly harsh compared to her co-defendants’ sentences and that the sentencing court erroneously exercised its discretion in changing its mind at the very end and ordering prison rather than probation on two of the counts. The court of appeals rejects her challenges.
SCOTUS: The Eighth Amendment’s excessive fine clause applies to states
Timbs v. Indiana, USSC No. 17-1091, February 20, 2019, reversing State v. Timbs, 84 N.E.3d 1179 (Ind. 2017); Scotusblog page (including links to briefs and commentary)
“The question presented: Is the Eighth Amendment’s Excessive Fines Clause an ‘incorporated’ protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?” The answer: Yes.
Sentencing judge could conclude defendant made choice to kill despite stipulation to adequate provocation
State v. Ashlee A. Martinson, 2017AP1889-CR, District 3, 2/20/19 (not recommended for publication); case activity (including briefs)
Martinson was charged with two counts of first-degree intentional homicide for killing her mother and stepfather. She pled to second-degree intentional homicide based on her claim of adequate provocation, which is premised on a complete lack of self-control, § 939.44(1)(a). That mitigating defense didn’t preclude the sentencing court from basing its sentence on the conclusion the defendant “had a choice” whether to kill the victims.
Victim’s failure to wear seatbelt doesn’t diminish OWI defendant’s culpability
State v. Pierre Deshawn Johnson, 2018AP595-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs)
Johnson pled to operating a vehicle with a suspended license and injury by operating under the influence of a controlled substance. His lead issue–whether the victim’s failure to wear a seatbelt was a significant intervening factor that diminished his culpability and warranted a new sentence–failed based on State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163.
Sentence modification, cost collection claims rejected
State v. Shawn A. Hodgkins, 2017AP1799-CR, District 2, 12/12/18 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)
Hodgkins objected to DOC collecting costs from him while he was in prison because the circuit court ordered the costs to be collected while he was on a term of consecutive probation. He also sought a “new factor” sentence modification. Alas, it was all in vain.
Failure to object during sentencing hearing to court’s consideration of information means the issue is forfeited
State v. Carrie E. Counihan, 2017AP2265-CR, District 3, 11/6/2017 (one-judge decision; ineligible for publication), petition for review granted 5/14/19, modified and affirmed, 2020 WI 12, ; case activity (including briefs)
At Counihan’s sentencing, the circuit court announced it had researched the outcomes in other cases with similar charges and then used that information in sentencing Counihan to jail time. Counihan moved for resentencing, arguing the circuit court violated due process because she didn’t have notice it had collected information about other cases or the opportunity to address the information at sentencing. The court of appeals holds the claim is forfeited because trial counsel didn’t object at the sentencing hearing. It also holds trial counsel’s failure to object wasn’t prejudicial.