On Point

State v. Steve Norton, 2001 WI App 245
For Norton: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether an unanticipated, post-sentencing revocation amounted to a new factor justifying modification of sentence.

Holding:

¶10. Although we agree with the State that, in general, revocation of probation in another case does not ordinarily present a new factor, the specific facts involved in this case require an exception to the general rule.

State v. Andre D. Crockett, 2001 WI App 235, PFR filed
For Crockett: David D. Cook

Issue:Whether facts suggesting that the defendant might have been less culpable than his codefendants amounted to a new factor justifying modification of sentence.

Holding: A new factor may be relate to facts “unknowingly overlooked” at sentencing; here, although the asserted new factor may have been unknowingly overlooked by the sentencing court,

State v. John Casteel, 2001 WI App 188, PFR filed

Issue: Whether Casteel’s failure to argue in a prior new-factor based attempt to modify sentence bars him from now arguing that the special action release program, § 304.02 — a statute extant at the time of the prior motion to modify — is a new factor.

Holding:

¶17. We note that the special action parole release statute was first adopted in 1989.

State v. Anthony A. Parker, 2001 WI App 111

Issue: Whether transfer to an out-of-state prison was a new factor supporting sentence modification.

Holding:

¶11. Parker contends that his transfer out of state is a new factor that frustrates the purpose of his sentence because his placement no longer coincides with the judgment of conviction confining him to ‘Wisconsin state prisons.’ Parker’s reliance upon these words is excessively literal and finds no support in the case law.

State v. David J. Wolfe, 2001 WI App 136, 246 Wis.2d 233, 631 N.W.2d 240, PFR filed 5/18/01
For Wolfe: Ann T. Bowe

Issue: Whether evidence of the respondent’s arson adjudication, and institutional violations and misconduct while at an adolescent treatment center were admissible under § 904.04.

Holding:

¶37 Diagnoses of a mental disorder and dangerousness are directly foretold through past conduct.

State v. Kerby G. Denman, 2001 WI App 96, 243 Wis. 2d 14, 626 N.W.2d 29.
For Denman: Glenn L. Cushing, SPD, Madison Appellate

Issue: Whether a Ch. 980 respondent’s jury waiver requires advice of the right to a unanimous verdict.

Holding: The court “look(s) to WIS. STAT. § 980.05(2), rather than the case law governing the waiver of a the constitutional right to a jury trial in criminal cases,

State v. Dennis R. Thiel (III), 2001 WI App 32, 241 Wis. 2d 465, 626 N.W.2d 26
For Thiel: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the trial court properly exercised discretion in refusing the indigent’s request for an independent expert on a § 980.07(1) (1997-98) reexamination.

Holding:

¶25 The first use of the word ‘may’ in WIS. STAT. § 980.07(1) (‘the person who has been committed may retain ….’) affords Thiel the option of requesting a second expert.

State v. Deryl B. Beyer, 2001 WI App 167, PFR filed
For Beyer: Jack E. Schairer, SPD, Madison Appellate

Issue1: Whether the trial court lost competence because the 72-hour time limit for a probable cause hearing, imposed by § 980.04(2), had passed.

Holding: Although the statutory time limit uses the term “shall,” it is directory rather than mandatory. “¶11. Under Wis. Stat. § 980.02(2), the State has only one ninety-day window of opportunity to petition for commitment.

State v. Aaron K. Gibbs, 2001 WI App 83, 242 Wis. 2d 640, 625 N.W.2d 666
For Gibbs: Donna L. Hintze, SPD, Madison Appellate

Issue: Whether a delinquency adjudication under former Wis. Stat. Ch. 48 (1993-94) supports a Ch. 980 petition.

Holding:

¶7 The question is whether in 1997 the circuit court had the authority under the 1997-98 version of WIS.

State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith

Issue: Whether the trial court improperly assigned the burden of persuasion to the inmate at the § 980.09(2)(a) probable cause hearing.

Holding: The burden of persuasion is assigned to neither party at a § 908.09(2)(a) hearing, the purpose of which is simply to conduct a paper review to determine whether a full evidentiary hearing is necessary.