On Point: H. Modification/Review

State v. Kenneth Alexander Burks, 2018AP208-CR, 9/25/18, District 1, (not recommended for publication); case activity (including briefs)

The court of appeals held that an officer’s testimony that another witnesses’s testimony was “very believable” did not qualify as “vouching” when considered in context. It also held that the circuit court did not impermissibly rely on its own comments about the opioid epidemic, addiction, and the medical and pharmaceutical industries when it sentenced Burks. Thus, his lawyer was not ineffective when he failed to object to these alleged errors.

State v. Jevon Dion Jackson, 2017AP712, District 1, 8/28/18 (not recommended for publication); case activity (including briefs)

Citing the recent U.S. Supreme Court decisions holding that the Eighth Amendment limits the imposition of life sentences on juveniles, Jackson argues he is entitled to a new sentencing hearing or sentence modification. The court of appeals concludes Jackson’s sentence is constitutional.

State v. Darrick L. Bennett, 2016AP2209-CR, 9/18/18, District 1 (not recommended for publication); case activity (including briefs)

Bennett was charged with 1st degree intentional homicide, but pled guilty to 1st degree reckless homicide. In a decision turning on facts specific to this case, the court of appeals affirmed the trial court’s decision denying (a) plea withdrawal without a hearing, (b) sentence modification based on a new factors, and (c) postconviction discovery of evidence that might have affected his sentence.

State v. Marquis D. Walls, 2017AP1600-CR, District 1, 8/14/18 (not recommended for publication); case activity (including briefs)

The court of appeals rejects Walls’s argument that the circuit court violated his Fifth Amendment right against self-incrimination by pressuring him to admit guilt at sentencing and then used his failure to do so to impose a harsher sentence.

State v. Terrell Antwain Kelly, 2017AP1584, 7/31/18, District 1 (not recommended for publication); case activity (including briefs)

Kelly was charged with both a long-ago second-degree sexual assault of a child and several domestic violence counts (the victim was the same). The state offered him a choice between two plea deals: one in which he would plead to the sexual assault with the DV counts dismissed and read in, and one in which he would plead to the DV counts with the sexual assault dismissed and read in.

State v. Patrick H. Dalton, 2018 WI 85, 7/3/18, reversing in part and remanding an unpublished court of appeals decision; case activity (including briefs)

The supreme court holds there were exigent circumstances that allowed police to draw blood from Dalton without a warrant after he refused to consent to a blood draw. But a majority of the court also holds that the sentencing judge erred by explicitly imposing a harsher sentence on Dalton because he refused to consent to the blood draw.

State v. Dion Lashay Byrd, 2017AP1968, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Byrd was convicted of making a bomb threat to the Fox 6 TV station in Milwaukee. He claims the sentencing court relied on two improper factors in imposing the maximum sentence for this Class I felony. First, he says the court coerced him into making self-incriminating statements during his sentencing allocution–statements that could not be used against him at sentencing under the Fifth Amendment. Second, he contends the court should not have based its sentencing decision on its stated dissatisfaction with the statutory maximum.

Tyson Timbs v. Indiana, USSC 17-1091, certiorari granted 6/18/18

Question presented:

Whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.

State v. Anthony R. Pico, 2018 WI 66, 6/15/18, affirming a split, unpublished court of appeals opinion, 2015AP1799-Cr, case activity (including briefs)

This split decision clarifies important aspects of ineffective assistance of counsel law, sentencing law, and appellate procedure. In addition, Justice Abrahamson’s dissent includes a word of caution for lawyers representing clients who have experienced brain trauma that may affect their mental capacity.

State v. Robert P. Vesper, 2018 WI App 31; case activity (including briefs)

Vesper complains that when he was sentenced for his 7th OWI offense the judge didn’t give a separate explanation for why it was imposing a fine in addition to prison time. Over a dissent, the court of appeals concludes the judge said enough to satisfy the (not at all exacting) standard of review for exercise of sentencing discretion. The court also rejects Vesper’s claim that the judge didn’t assess his ability to pay the fine.