On Point

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate

Issue/Holding:

¶13      Second, before a trial court may order restitution “there must be a showing that the defendant’s criminal activity was a substantial factor in causing” pecuniary injury to the victim in a “but for” sense. Longmire, 272 Wis. 2d 759, ¶13; State v.

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen, SPD, Madison Appellate

Issue/Holding:

¶12      First, restitution is limited to “special damages … which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.” Wis. Stat. § 973.20(5)(a). The term “special damages” as used in the criminal restitution context means any readily ascertainable pecuniary expenditure paid out because of the crime. 

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate

Issue/Holding1: Lost profits are “special damages,” and therefore subject to a restitution order, because the underlying causal criminal conduct could give rise to a civil action based on the torts of conversion and interference with prospective contractual relationships, ¶¶16-17.

Issue/Holding2: Because at least a minimal amount of speculation inheres to such a claim,

State v. Harry L. Seymer, 2005 WI App 93
For Seymer: Andrea T. Cornwall, SPD, Milwaukee Appellate

Issue/Holding: Improper termination of defendant’s cross-examination of the sexual assault complainant was not harmless error, where abbreviated though it was, cross had already “raise(d) serious questions concerning A.S.’s credibility and the veracity of her account …. Thus, it is within the realm of reasonable possibility that the completed cross-examination would have produced evidence that seriously undermined the credibility and recollections of the victim,

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.