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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
SVP Commitments – Proof of Overt Act of Dangerousness: Not Required as Matter of Equal Protection
State v. Steven C. Feldmann, 2007 WI App 35, PFR filed 3/23/07
For Feldmann: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The ch. 980 omission of required proof of a recent overt act of sexual violence does not violate equal protection, as compared with the ch. 51 mental health commitment requirement of proof of a recent overt act demonstrating dangerousness.
The supreme court refused to impose such requirement under ch.
Re-Sentencing – Generally
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶6 “When a resentencing is required for any reason, the initial sentence is a nullity; it ceases to exist.” Carter, 208 Wis. 2d at 154. In resentencing “the court imposes a new sentence after the initial sentence has been held invalid.” Id. at 147.
Re-Sentencing – Modification of Sentence, Distinguished
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶7 Counsel for Wood points out that published opinions have been somewhat imprecise in distinguishing between the requirements for, and effect of, sentence modification as opposed to resentencing. We acknowledge that language has, on occasion, been imprecise. …
…
¶9 Similarly, in State v.
Sentence – Modification – New Factor: Parole Policy
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding: The governor’s 1994 letter exhorting bureaucratic opposition to (pre-TIS) parole for certain crimes was not a new factor, even though the sentencing court expressly took into consideration DOC data purporting to show the likely chance of parole:
¶11 We held in Delaney that the Thompson 1994 letter was not a “new factor” in part because: (1) there was no showing that the 1994 letter had any impact on Delaney’s discretionary parole eligibility;
Sentencing – Review – Modification – “New Factor,” Generally
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶5 A new factor, as defined in Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), is
a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing,
Sentencing – Review – Excessiveness – Sexual Contact, Closeness in Age between Defendant and Minor Victim
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: Sentence of 13 years (3 IC; 10 ES) for sexual contact was not harsh and excessive, notwithstanding closeness in age between defendant and underage victim:
¶12 As to excessiveness, Thexton notes that he was close in age to the victim. The sexual contact between the two began when he was seventeen and she fourteen and ended when he was eighteen and she fifteen.
Confrontation – “Testimonial” Statement – Letter Addressed to / Voicemails Recorded by Police
State v. Mark D. Jensen, 2007 WI 26, on bypass
For Jensen: Craig W. Albee
Issue/Holding:
¶27 In light of the standard set out above, we conclude that under the circumstances, a reasonable person in Julie’s position would anticipate a letter addressed to the police and accusing another of murder would be available for use at a later trial. The content and the circumstances surrounding the letter make it very clear that Julie intended the letter to be used to further investigate or aid in prosecution in the event of her death.
Confrontation – “Non-Testimonial” Statement – Statements to Acquaintances
State v. Mark D. Jensen, 2007 WI 26, on bypassFor Jensen: Craig W. Albee
Issue/Holding:
¶31 Finally, we consider the statements Julie made to Wojt and DeFazio. Jensen argues that if the circumstances reveal that the declarant believed her statements to nongovernmental actors would be passed on to law enforcement officials, those statements are testimonial. While we reiterate that governmental involvement is not a necessary condition for testimonial statements,
Sentencing Review – Exercise of Discretion: Adequacy of Linkage of Objectives to Length
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: The sentencing court satisfied Gallion’s required linkage:
¶11 … Here, the court explained that it did not consider Thexton’s conduct so serious that it required Thexton to be incarcerated for the length of time that might be appropriate for other sex offenders,
Counsel – Ineffective Assistance – Deficient Performance: Law Must Be Clear – Juror Dissent After Guilty Verdict Accepted and Phase II (NGI) Deliberations Begun
State v. Jennifer Wery, 2007 WI App 169
For Wery: Elizabeth Ewald-Herrick
Issue/Holding:
¶17 Wery’s counsel’s failure to object did not constitute deficient performance. Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994).
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.