On Point

State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe

Issue: Whether a higher level of scrutiny applies to an equal protection challenge to a prison early release program which categorically withholds eligibility from certain types of crimes.

Holding:

¶13      The State, on the other hand, argues that we should employ the lower level of scrutiny,

State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe

Issue:  Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.

Holding:

¶18      Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis.

State v. Joseph J. Hammill, 2006 WI App 128. For Hammill: Patrick J. Stangl

Issue/Holding:

¶15      Hammill argues the circuit court erred by counting a Village of Cameron conviction. Hammill was arrested in that case for OWI-first on January 1, 1991. On January 28, Hammill was arrested for OWI in Eau Claire, which was also charged as a first offense. Hammill pled to both OWI-first cases on the same day,

State v. Joseph J. Hammill, 2006 WI App 128
For Hammill: Patrick J. Stangl

Issue/Holding:

¶6        A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. …

¶7        Hammill argues that he made a prima facie showing that he did not knowingly and voluntarily waive his right to counsel.

State v. Kevin J. Helsper, 2006 WI App 243
For Helsper: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding:

¶7        Constitutional limits on a state’s recoupment of attorney fees are grounded in both due process and equal protection principles. Bearden v. Georgia, 461 U.S. 660, 665 (1983). Recoupment statutes must be tailored to “impose an obligation only upon those with a foreseeable ability to meet it,

State v. Jonathan Owens, 2006 WI App 75, PFR filed 4/4/06
For Owens: Dianne M. Erickson

Issue: Whether the sentencing court’s initial denial of ERP eligibility, seemingly on the improper basis of the defendant’s age, was a proper exercise of discretion where on motion for reconsideration the court “stated that it had intended to refer to Owens’s age regarding his eligibility for the Challenge Incarceration Program only [and] then explained why it had denied Owens’s participation in the ERP and denied the motion for reconsideration.”

Holding:

¶9        Owens complains that even though the trial court set forth an explanation for its sentence,

State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe

Issue: Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.

Holding:

¶18      Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis.

State v. David S. Stenklyft, 2005 WI 71, on bypass
For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding: The prosecutorial veto written into the TIS sentence-adjustment provision, § 973.195, is unconstitutional:

¶83 … “[S]hall” is interpreted as directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under Wis.

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.

Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”

Holding:

¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder;

State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius

Issue: Whether “actual physical possession” of weapons is necessary to support forfeiture under § 968.20(1m)(b).

Holding:

¶9        Kueny argues that he effectively did not have possession of the firearms. He reminds us that he had had no contact with the weapons since putting them in storage years before,