On Point blog, page 72 of 104
Standards of Review: Administrative Decisions – Certiorari – Revocation of Probation – Right to Counsel
State ex rel. Peter D. Griffin v. Smith / State ex rel. Micah E. Glenn v. Litscher, 2004 WI 36, on certification
For Griffin and Glenn: Nathaniel Cade, Jr., State Bar Pro Bono Project
Issue/Holding: A new rule of equitable tolling for untimely certiorari petitions seeking review of revocation decisions is subject to the retroactivity analysis adopted by State ex. rel.
Presentence Report — Defense-Prepared — Confidential Character of Defendant’s Statements
State v. Thomas A. Greve, 2004 WI 69, on certification
For Greve: Jeffrey J. De La Rosa
Issue: Whether State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989), construing Wis. Stat. § 972.15 as limiting the use of a court-ordered presentence investigation report (PSI) to postconviction settings, also applies to a defendant’s sentencing memorandum.
Holding:
¶17.
Presentence Report — Enhanced Need for, under TIS
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶31. Likewise, we agree with the Criminal Penalties Study Committee that the judiciary must address the increased responsibility placed upon the sentencing court in light of truth-in-sentencing.
Sentence Modification — New Factor — TIS-I: Elimination of Parole
State v. James D. Crochiere, 2004 WI 78, affirming unpublished opinion
For Crochiere: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether post-sentencing events such as rehabilitation which would not be considered “new factors” supporting reduction of indeterminate sentence may be regarded as new factors under the determinate regime of TIS-I.
Holding:
¶9. Crochiere bases his argument for sentence reduction, in part, on this shift away from the executive branch’s participation due to the legislature’s elimination of parole.
Sentencing – Factors – Victim’s Good Character
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶63. Gallion’s next claim on appeal is that the circuit court erred in placing undue emphasis on the character of the victim. …¶64. Under Wisconsin law,
SVP – Trial: Evidence – Misconduct, § 904.04(2)
State v. Gregory J. Franklin, 2004 WI 38, affirming unpublished decision of court of appeals
For Franklin: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶16. In order to be admissible in a ch. 980 proceeding, all evidence must be relevant and that relevance must not be outweighed by the danger of unfair prejudice. Wis. Stat. § 904.01; Wis. Stat. § 904.03;
Sentencing Review – Factors – TIS
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶28. With the advent of truth-in-sentencing, we recognize a greater need to articulate on the record the reasons for the particular sentence imposed. Under the old,
Counsel – Ineffective Assistance – Deficient Performance: Failure to Investigate Confession to Crime by Defendant’s Brother
State v. Joseph J. Guerard, 2004 WI 85, reversing unpublished decision of court of appeals
For Guerard: Joseph L. Sommers
Issue/Holding: Failure to interview or subpoena an investigator to whom the defendant’s brother had confessed was deficient performance; the basis for this failure, that counsel “thought the confessions were hearsay and that York’s reports were the work product of the State Public Defender’s office,
Constitutional Defenses – Due Process and Strict Liability: Fraud-Induced Mistake-of-Age Defense to Sexual Assault of Minor
State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether due process supports an affirmative defense to sexual assault of a minor, § 948.02(2), based on the minor’s intentional misrepresentation of his or her age.
Holding:
¶36. Upon reading Wis. Stat. § 948.02(2), we conclude that the statute is clear and precise. The prohibited conduct is engaging in sexual intercourse with a child under the age of 16 years.
Enhancer — TIS-I – Calculation (Confinement vs. Supervision)
State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals
For Jackson: Joseph E. Schubert
Issue: Whether penalty enhancement of a TIS-I sentence, § 973.01(2) (1997-98), applies to the confinement portion alone, or to the total term of imprisonment (including extended supervision), of a bifurcated sentence.
Holding:
¶17. The key to understanding the applicability of penalty enhancers under TIS-I lies in Wis.