On Point

State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller

Issue/Holding: Although failure to instruct the jury on an element is subject to harmless error analysis per State v. Harvey, 2002 WI 93, ¶¶44, 49, 254 Wis. 2d 442, 647 N.W.2d 189, in this instance the error was not harmless because the omission related to “a key dispute between the parties,” and “contestability of an element goes to whether the instructional error was harmless,” ¶17.

State v. Brandon E. Jones, 2005 WI App 259
For Jones: Amelia L. Bizarro

Issue: Whether the sentencing court provided sufficient reasons for Jones’s reconfinement following revocation of extended supervision.

Holding:

¶9        ….  The key is for the circuit court to provide sufficient information about its reasoning so as to allow for meaningful review. The “need for meaningful appellate review of a trial court’s decision to take away a person’s liberty must be our polestar.” Swiams,

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding:

¶14    Montroy also argues a new PSI is necessary because the inaccurate information will continue to prejudice him in the future. He cites Wis. Admin. Code § DOC 328.27 (Nov. 2002) for examples of the various uses for a PSI beyond sentencing. However, Wis. Stat. § 973.08(2) requires that the transcript of Montroy’s sentencing hearing be part of his record. 

State v. Jennifer F. Francis, 2005 WI App 161
For Francis: Hans P. Koesser

Issue: Whether the trial court must engage the defendant in a personal colloquy before allowing an NGI plea, § 971.06(1)(d), to be abandoned.

Holding: Because an NGI plea is not a constitutional or otherwise fundamental right, a personal colloquy with the defendant isn’t a precondition to withdrawal of the plea, ¶¶15-22.

State v. Shermell G. Tabor, / State v. Ronald Irvin Ryan, 2005 WI App 107
For Tabor / Ryan: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: Legislative modification of the definition of SVP “dangerousness” (2003 Wis Act 187, §§ 2, 2m, amending §§ 980.01(7) and 980.02(2)(c); reducing the necessary showing from “substantial probability” to mere likelihood of sexual violence) has an effective date of April 22,

State v. Jose A. Trujillo, 2005 WI 45, affirming summary order of court of appeals
For Trujillo: Suzanne L. Hagopian, SPD, Madison Appellate

Issue: Whether the TIS-II reduction of penalty, such that this TIS-I defendant was sentenced to confinement exceeding what would have been the TIS-II maximum, is a “new factor” supporting modification of sentence.
Holding:

¶21 We are not persuaded by Trujillo’s attempt to convince us to distinguish Hegwood and overrule Torres.

State v. John Doe, 2005 WI App 68
For John Doe: Amelia L. Bizzaro (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”)

Issue/Holding: “(A) defendant’s substantial and important assistance to law enforcement after sentencing may constitute a new factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted,” ¶1.

¶8.

State v. Robert M. Fowler, 2005 WI App 41, PFR filed 3/9/05For Fowler: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding:

¶30 Dr. Harasymiw’s report concludes that Fowler still is a sexually violent person. This was sufficient to support the trial court’s conclusion that it was substantially probable that Fowler would engage in acts of sexual violence. …¶31 … Although Dr. Maskel disagreed with certain conclusions,

State v. Frederick W. Prager, 2005 WI App 95
For Prager: Daniel P. Fay

Issue: Whether, six days after original sentencing and imposition of probation, the State’s proffered new factor (that defendant had quitclaimed the jointly owned farm to his wife) supported a modification to an active prison term.

Holding: Although the term of probation was premised in part on the economic hardship that defendant’s wife would suffer if he were sentenced to prison (¶¶4,

State v. John Doe, 2005 WI App 68
For John Doe: Amelia L. Bizzaro (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”)

Issue/Holding:

¶6. Thus, sentence modification on the basis of a new factor is a two-step process. Id. First, the defendant must demonstrate, by clear and convincing evidence, that there is a new factor justifying a motion for sentence modification.