On Point

State v. Roger S. Walker, 2006 WI 82, affirming as modified summary order
For Walker: James Rebholz

Issue/Holding: In order to obtain review, a defendant must file a postconviction motion to modify sentence, even if the event was a re-sentencing which came to the same result as originally imposed.

¶37      In the hope of clarifying appellate procedure, we conclude that when a defendant seeks modification of the sentence imposed at resentencing,

State v. Robert L. Kruse, 2006 WI App 179, PFR filed 9/11/06
For Kruse: Donald T. Lang, SPD, Madison Appellate

Issue/Holding1:

¶2 We agree with Kruse that at a probable cause hearing under Wis. Stat. §980.09(2)(a), the role of the circuit court is to determine whether there is plausible testimony or evidence that, if believed, would establish probable cause that the petitioner is no longer a sexually violent person.

State v. Christopher L. Combs, 2006 WI App 137, PFR filed, 7/20/06
For Combs: Steven D. Phillips, SPD, Madison Appellate

Issue: Whether, on a petition for discharge of an SVP commitment, § 980.09(2)(b), the trial court can refuse to hold a hearing where, although the court-appointed expert concludes that the person was not sufficiently predisposed to sexual violence to meet the definition of a sexually violent person,

 State v. Deryl B. Beyer, 2006 WI 2, on certification; prior history: 2001 WI App 167, cert. denied, Beyer v. Wisconsin, 537 U.S. 1210 (2003)
For Beyer: Donald T. Lang, SPD, Madison Appellate

Issue1: Whether due process was violated by delay of over 22 months between the time the first annual periodic examination report was provided to the circuit court under § 980.07 and the circuit court’s probable cause hearing under § 980.09(2)(a).

State v. Wayne Delaney, 2006 WI App 37
Pro se

Issue/Holding:

¶7        To have his sentence modified, Delaney must overcome two hurdles. First, he must demonstrate that a new factor exists. If so, he next must demonstrate that the new factor warrants sentence modification. State v. Franklin, 148 Wis.  2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor is a question of law this court decides without deference to the circuit court’s determination. 

State v. Wayne Delaney, 2006 WI App 37
Pro se

Issue/Holding: Governor Thompson’s 1994 letter to the DOC exhorting pursuit of all available remedies to block release of (pre-TIS) violent offenders reaching their mandatory release date is not a new factor:

¶9        The existence of a new factor must be shown by clear and convincing evidence. Franklin, 148 Wis.  2d at 8-9.

State v. Donald Odom, 2006 WI App 145
For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial

Issue/Holding: Trial court’s acknowledgement that Odom had been a productive citizen but that his numerous crimes “stood in stark contrast to that past” adequately accounted for Odom’s “positive attributes,” ¶24.

State v. Donald Odom, 2006 WI App 145
For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial

Issue/Holding: A trial court is not required to follow the sentencing guidelines, but only to explain a departure; the trial court’s explanation for departure (defendant’s lengthy record and reoffending upon release from confinement) was an adequate explanation, ¶26.

State v. Jack W. Klubertanz, 2006 WI App 71, PFR filed 4/14/06
For Klubertanz: Martha K. Askins, SPD, Madison Appellate

Issue: Whether attack on a sentence as harsh and excessive is limited to factors present at the time of sentencing, or may instead be based on post-sentencing events such that as in this instance a claim that the defendant had been sexually assaulted in prison after sentencing might support a harsh-and-excessive sentence reduction.

State v. Germaine M. Taylor, 2006 WI 22, affirming unpublished summary order
For Taylor: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: TIS sentence of 18 years (12 in, 6 out) for child sexual assault, consecutive to 5 year indeterminate sentence for similar offense, was not harsh and excessive, notwithstanding PSI recommendation of 12 years (6 in, 6 out), nonviolent nature of act, and closeness of victim to age of consent:

¶35 Although we recognize the accuracy of many of Taylor’s assertions,