On Point: 3. Extrinsic sources

On review of a court of appeals certification; affirmed 5/23/23; case activity (including briefs);

Issue:

Whether Wis. Stat. § 301.45(5)(b)1, which mandates lifetime sex-offender registration where a person has been convicted of a sex offense “on 2 or more separate occasions,” applies when a person’s only eligible convictions are entered on multiple guilty pleas in the same case.

State v. Eric Jean Overvig, 2019AP1786, 9/8/21, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Overvig was arrested for OWI-3rd and promptly put himself into intensive alcohol treatment. When it came time for sentencing, the trial court imposed probation with 20 days of conditional jail time. Ordinarily, under Wis. Stat. § 346.65(2)(am)3., the minimum for OWI-3rd would be 45 days, but there’s an exception in Wis. Stat. § 346.65(2)(cm) pertaining to certain probationers who undergo drug treatment: for them, the minimum is 15. The state appeals, arguing Overvig didn’t qualify for this exception, but the court of appeals holds that he did.

State v. Matthew C. Hinkle, 2018 WI App 67, petition for review granted 4/9/19; affirmed 11/12/19; case activity (including briefs)

Hinkle, a 16-year-old boy, was charged as a juvenile in two different counties for a car theft and police chase.  In Milwaukee County, the juvenile court waived him into adult court. So, did the Fond du Lac court have to treat him as an adult too?

State v. Ernesto E. Lazo Villamil, 2017 WI 74, 7/6/17, affirming a published court of appeals decision; case activity (including briefs)

A few years ago the legislature set out to create a graduated penalty scheme for operating after revocation offenses, but it bungled the job and ended up creating misdemeanor and felony penalties for the offense of causing death while knowingly operating after revocation. The supreme court rebuffs Villamil’s claims that under the rule of lenity only the misdemeanor penalty can be imposed or, in the alternative, that creating two very different penalties for the same crime violates due process and equal protection. The court agrees with his request for resentencing, however, because the circuit court failed to consider the statutorily mandated sentencing factors.

State v. Lazaro Ozuna, 2017 WI 64, 6/22/17, affirming an unpublished court of appeals opinion; case activity (including briefs)

Lazaro Ozuna, a teenager, pled to two misdemeanors and got probation. The court also ordered that the convictions be expunged on successful completion of probation under Wis. Stat. § 973.015. Ozuna got through probation and was discharged, but he picked up an underage drinking ticket along the way–a violation of the no-drink condition of his probation but obviously not a terribly serious one. So, did he “successfully complete” his probation so as to be entitled to expunction?

State v. David Hager, 2015AP330, and State v. Howard Carter, 2015AP1311, petitions for review granted 5/15/17, reversed 4/19/18; review of published court of appeals decisions (Hager) (Carter); case activity (Hager) (Carter) (including briefs)

We’ve posted on these cases a few times. The first time was when the court of appeals certified them (together) to the supreme court. The supreme court refused that certification, so the court of appeals decided them (separately), as we discussed here and here.

Review of a published court of appeals decision; case activity (including briefs)

Issues (from the petition for review and petition for cross-review)

 1.  Whether the offense under § 343.44(2)(ar)4. can be punished as either a misdemeanor or a felony in order to resolve ambiguity in the statutory language when the legislature’s intent was to create a penalty scheme with increasing penalties for additional elements; or whether, instead, the doctrine of implied repeal should be employed to correct the obvious drafting error that created the ambiguity as to whether the offense is a misdemeanor or a felony.

2.  Whether § 343.44(2)(ar)4., having been interpreted to give discretion to the prosecution to charge an offense as a misdemeanor or a felony, can be constitutionally applied.

3.  Whether the provision in § 343.44(2)(b) stating that the circuit court “shall” consider certain sentencing factors is mandatory or directory.

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..

State v. John Steven Duewell, 2015AP43-44-CR, 3/23/16, District 1 (not recommended for publication); case activity (including briefs)

In a decision that seems to conflict directly with State v. Torbeck, 2012 WI App 106, 344 Wis. 2d 299, 821 N.W.2d 414, see our post here, the court of appeals holds that carburetor cleaner is an intoxicant under Wisconsin’s OWI statute, Wis. Stat. §346.63(1)(a)(2011-2012).