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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.

Sentencing – Review — Harsh & Excessive, Generally

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler

Issue/Holding:

¶21. Finally, Stenzel asserts that the court erroneously exercised its discretion because the sentence is unduly harsh and unconscionable. When a defendant argues that his or her sentence is unduly harsh or excessive, we will hold that the sentencing court erroneously exercised its discretion “only where the sentence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.” 

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SVP – Postdisposition: Supervised Release – Reconsideration – Procedure

State v. William L. Morford, 2004 WI 5, on review of unpublished decision
For Morford: Lynn E. Hackbarth

Issue/Holding:

¶41 The State urges us to hold that Wis. Stat. § 980.08(6m), not § 806.07(1)(h), applies and the State seeks relief from a chapter 980 committee’s status of supervised release when the committee has not yet been released on supervised release. The State asks this court to hold that the Department of Health and Family Services may petition for revocation of supervised release under Wis.

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Competency: Discharge / Reevaluation

State v. Keith M. Carey , 2004 WI App 83, PFR filed 4/22/04
For Carey: Paul LaZotte, SPD, Madison Appellate

Issue/Holding:

¶10. Pursuant to Wis. Stat. § 971.14(5)(a), if the court finds that a defendant is not competent, but is likely to become competent, it may commit the defendant to the custody of the department of health and family services for a period of time not to exceed twelve months or the maximum sentence for the most serious offense with which the defendant is charged,

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Appellate Procedure – Standard of Review: Testify, Defendant’s Right to

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:

¶11. A defendant’s right to testify is a fundamental constitutional right. State v. Simpson, 185 Wis. 2d 772, 778, 519 N.W.2d 662, 663 (Ct. App. 1994). A defendant may, however, waive the right to testify. State v. Wilson, 179 Wis. 2d 660,

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Writs – Certiorari – Availability

State ex rel. David C. Myers v. Swenson, 2004 WI App 224, PFR filed 11/24/04
For Myers: Christopher T. Sundberg; Bruce D. Huibregtse

Issue/Holding:

¶8. Myers appears to argue that the Wisconsin courts retain the ability to conduct certiorari review of a Wisconsin inmate’s due process or equal protection challenge to a disciplinary action, even if the challenge involves conduct and a disciplinary proceeding that took place while the inmate was housed out of state.

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Writs – Certiorari – Judicial Act – Review Limited to Determining Tribunal’s Jurisdiction

State v. Christopher Swiams, 2004 WI App 217
For Swiams: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶8. … The State contends, however, that reconfinement orders may only be reviewed via common-law certiorari and not under Wis. Stat. Rule 809.30. It relies on State v. Bridges, 195 Wis. 2d 254, 536 N.W.2d 153 (Ct. App. 1995) (per curiam).…

¶10.

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Writs – Supervisory – General

State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58
For Kalal: Waring R. Fincke

Issue/Holding:

¶17 A “writ of supervision is not a substitute for an appeal.” State ex rel. Dressler v. Circuit Court for Racine County, 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991). The decision whether to issue a supervisory writ “is controlled by equitable principles and,

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Sentencing Review – Factors – TIS, Generally

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler

Issue/Holding:

¶6. In State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the Wisconsin Supreme Court revisited the seminal case in sentencing jurisprudence, McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971) …¶7. The appellate standard of review is limited to determining if the sentencing court erroneously exercised its sentencing discretion.

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Sentencing Review – Factors – Proof: Prior Acquittal

 State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz

Issue/Holding:

¶54. It is “‘well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.’” United States v. Watts, 519 U.S. 148, 152 (1997) (per curiam) (quoted source omitted,

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Sentencing Review – Factors – Articulation of Reasons for Sentence – Truth-in-Sentencing

State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School

Issue/Holding: (The singular importance of this case requires this very lengthy excerpt, albeit without the footnotes which don’t seem to add substantive content.)

¶38. In light of the increased responsibility placed upon the sentencing court,

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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.