On Point

State v. Paul A. Wilinski, 2008 WI App 170
For Wilinski: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶11      Wisconsin courts have not yet articulated the standard for reviewing a circuit court’s order for commitment under Wis. Stat. § 971.17(3)(a). The State proposes that courts should review such orders under a sufficiency of the evidence standard. Wilinski seems to concede this is the appropriate standard of review.

State v. Paul A. Wilinski, 2008 WI App 170
For Wilinski: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: NGI commitment to institutional care supported by the evidence, in that

• The nature of the offense itself (violent assault coupled with threat to kill) supported a finding of significant risk of harm if Wilinski were released (¶13);
• Wilinski failed to comply with conditional release under prior NGI commitment,

State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky

Issue: Whether § 980.09 (2005-06) grants the circuit court a greater “gatekeeper role” than the prior statute in ordering an evidentiary hearing on a discharge petition.

Holding: 

¶22      The State’s premise that the new statute grants the circuit court a greater role than it played in a probable cause determination runs contrary to the development of the law.

State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky

Issue/Holding:

¶14      Unlike the previous statutory provision, the current Wis. Stat. § 980.09 does not distinguish between petitions made with or without the approval of the DHFS secretary. Furthermore, a discharge petition no longer automatically triggers a probable cause hearing. Rather, the circuit court may review the petition without a hearing,

State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky

Issue/Holding:

¶24      In his petition, Arends alleged that his condition had changed such that he no longer met the definition of a sexually violent person because (1) “the passage of time demonstrated that anti-social behavior expected under an earlier diagnosis did not occur,” (2) a lower PCL -R score showed a change in Arends’ condition,

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding: A parolee’s statement made under grant of immunity (per State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)), was compelled (therefore involuntary) and inadmissible at a ch.

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue: Whether threats made to the victims, while the prosecution was pending, to try to dissuade them from testifying were relevant to sentence despite absence of evidence linking threats to the defendant himself.

Holding:

¶41      The court process is a predictable consequence of conduct which results in a criminal charge.

State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau

Issue/Holding: The sentencing court’s observations to the effect that the defendant was “a sick man” didn’t amount to “unsupported findings about his mental health:

¶14      At Sherman’s postconviction hearing, the court indicated that its comments did not reflect medical diagnoses, but were instead common sense observations based upon facts in the record.

State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau

Issue/Holding:

¶15      Sherman claims the only evidence about his mental health came from his expert, Dr. Gerald Wellens. Sherman claims the court failed to consider his expert’s opinion. However, at sentencing, the court expressly considered Wellens’ opinion. The court noted that Wellens only examined Sherman for a short period of time and that his perceptions of Sherman were plainly outweighed by contradictory testimony of people who were more familiar with Sherman. 

State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau

Issue/Holding: Sentencing failure to consider applicable guidelines, § 973.017(2)(a), was harmless error, at least where the controlling sentence was untainted by the error:

¶9        We conclude that the circuit court’s failure to consider the sentencing guidelines for the two Wis. Stat. § 948.02(2) counts was harmless error.