On Point blog, page 73 of 133

Sentence Credit – Concurrent Sentences: Each Must Be Analyzed Separately for “Connection,” Though Imposed at the Same Time

State v. Elandis D. Johnson, 2009 WI 57, affirming 2008 WI App 34
For Johnson: Meredith J. Ross, UW Law School

Issue/Holding:

¶76      We conclude that Wis. Stat. § 973.155 imposes no requirement that credit applied toward one sentence also be applied toward a second sentence if the basis for applying the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same time.

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Restitution – Time Limit: No Explicit Deadline, Court May Consider After Sentencing

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue/Holding:

¶52      The State counters that there is no language in the statute that requires victim claims to be submitted before sentencing. The State also argues that where restitution was held open, there is no expectation of finality and thus no equitable grounds for denying the claims.

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Appellate procedure – Harmless Error: Public Trial – Violation as Structural Error

State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser

Issue/Holding:

¶43      If a defendant’s right to a public trial is determined to have been violated, the defendant need not show prejudice; the doctrine of harmless error does not apply to structural errors. [15]

 [15]  See Neder v.

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Defense of Self, § 939.48(1) – Violent Acts of Victim – Generally

State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt

Issue/Holding:

¶21      It is well established that a defendant seeking to support a self-defense claim may attempt to “prov[e] prior specific instances of violence within [the defendant’s] knowledge at the time of the incident.”  State v. Wenger, 225 Wis.

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Enhancer – Proof: Trial (on Guilt) – “Must be withheld from jury’s knowledge”

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding: Evidence related to a penalty enhancer (such as a prior conviction in support of habitual criminality) is relevant only to sentence and “must be withheld from the jury’s knowledge,” ¶19, quoting Mulkovich v. State, 73 Wis.  2d 464,

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Enhancer – § 939.62(2m)(d), Persistent Offender – “Prior” Strike

State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers

Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1st strike’s conviction date precede the 2nd strike’s violation date. Although Long’s two prior strikes occurred before the current felony,

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First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Regulation of Speech

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: First amendment analysis applies to an identity theft charge alleging that Baron sent emails from Fischer’s account without authorization and with intent to harm his reputation:

¶16      In order to determine if a First Amendment analysis is required, we must first consider whether conduct alone or speech,

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Search Warrants – Probable Cause – Statements of Unnamed, Unwitting Participant in Transaction

State v. Jaime Romero, 2009 WI 32, reversing unpublished opinion
For Romero: Thomas E. Hayes

Issue/Holding: Search warrant affidavit, based in part on incriminatory statements of “unwitting” informant (“Mr. X”), established probable cause:

¶29      In the instant case a confidential informant told a law enforcement officer what someone else had told him.  In such a case, the veracity of each person in the chain is relevant. 

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“Forfeiture” (Compared to “Waiver”) of Right to Public Trial

State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser

Issue/Holding: (Generally:)

¶29      Although cases sometimes use the words “forfeiture” and “waiver” interchangeably, the two words embody very different legal concepts. “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”

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Public Trial – Test for Closure, Generally and with Respect to Defendant’s Family

State v. Dhosi J. Ndina2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser

Issue/Holding1: Closure of the courtroom to numerous members of defendant’s family during witness testimony implicated the right to public trial:

¶51      Although the United States Supreme Court has stated that pursuant to the Sixth Amendment right to a public trial, “an accused is at the very least entitled to have his friends,

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