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| Allocution (Also see discussion here) |
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| Incarceration Release Programs ("Boot Camp"; "ERP") |
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| Consecutive Sentences -- Authority to Impose |
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| Costs |
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DNA Collection, § 973.047, and Surcharge, § 973.046 (For fourth amendment issues, go here) |
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Enhancers
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| Expunction |
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| Fines |
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| Mandatory Penalty |
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Modification/Review
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| Presentence Report |
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Restitution
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Sentence Credit
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| Probation: Go to Probation, PLRA |
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| Allocution, Victim’s – Prohibiting Defendant from Looking at Victim |
| State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08 |
| For Payette: Robert R. Henak; Amelia L. Bizzaro |
Issue/Holding:
¶51 The trial court, having just heard a lengthy description of Payette’s violent and abusive conduct toward RS, directed that Payette not look at his victim during her statement to the court, because, the trial court said, “I just don’t want him intimidating her. We just asked him to turn around.” Payette claims that this order deprived him of his statutory (Wis. Stat. § 971.04 [15]) and due process right to be present at his sentencing, and he is, therefore, entitled to resentencing.<Allocution -- Generally |
| State v. James C. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996) |
| For Lindsey: Park M. Drescher |
Issue/Holding: It is undisputed that the trial court at the sentencing hearing erred when it did not afford Lindsey the right of allocution provided by § 972.14(2), Stats. ...Also see discussion here. |
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| Allocution -- Timing of Exercise of Right |
| State v. Quantae T. Hines, 2007 WI App 39 |
| For Hines: Richard D. Martin, SPD, Milwaukee Appellate |
| Issue/Holding: A defendant has a right to allocute during a reconfinement proceeding, the remedy for violation of which is resentencing, ¶¶18-20. |
The decision to publish is somewhat
puzzling. The outcome is largely controlled by
State
v. John C. Brown, 2006 WI 131, which held that reconfinement is
essentially a sentencing proceeding. True,
Brown didn’t discuss allocution, so this
is a slight— very slight—extension
of that holding. That said, the result is much more interesting when the facts
are taken into account. After the
reconfinement sentence was announced, Hines spoke up and made a pitch for
leniency, ¶9. The trial judge was unmoved; as she later said, on postconviction
motion, ¶10:… Even assuming arguendo that the defendant had a due process right to allocution … he was clearly afforded that right…. The court considered the defendant’s statement but was not persuaded to alter its reconfinement decision. Any failure … to ask the defendant before ordering reconfinement whether he had anything to say was harmless….And so, the question is really one of harmless error. The defendant was afforded an opportunity to speak, it’s just that this was immediately after rather than before pronouncement of sentence. The court of appeals might have said that such a violation was a mere trifle, but that’s decidedly not what it said. Instead, the result is comprehensible only as a bright-line rule, which the court barely hints at, in a passing remark, ¶18: “Part of the court’s consideration at a sentencing includes the defendant’s right to allocute before the court pronounces its decision. See Wis. Stat. § 972.14(2); Greve, 272 Wis. 2d 444, ¶35.” Thus, “before” means exactly that, and not a moment later. |
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| Allocution -- Shackled Deaf Defendant: Must Show Actual Interference with Ability to Sign Effectively |
| State v. Jeremy D. Russ, 2006 WI App 9 |
| For Russ: Martha K. Askins, SPD, Madison Appellate |
Issue/Holding: A deaf defendant
who had been shackled when he entered a guilty plea and was sentenced must show
actual inability to communicate effectively in order to meet his burden of
showing a violation of rights. Thus, even though the defendant adduced expert
proof at the postconviction hearing “that communication would be limited and
difficult if a deaf person who used sign language were handcuffed,” he did not
meet his burden of proof:
¶10 As the trial court observed, the expert’s testimony—the only evidence presented at the postconviction hearing—was purely theoretical. It established that Russ could have had a very difficult time communicating information to others in the courtroom. Russ, however, must prove that he was actually prevented from effectively communicating. Russ presented no evidence that the shackles hindered him from imparting any particular piece of information or from directing questions to anybody in the courtroom. Neither his trial counsel nor the interpreters took the stand to attest to their inability at any point during sentencing to understand Russ; nor did Russ give any testimony of his own. Moreover, despite the court’s invitation to let it know if the restraints prevented Russ from communicating adequately, Russ never notified the court of any such difficulty either personally or through counsel.Deck v. Missouri, 125 S. Ct. 2005 (2005) distinguished, ¶11: that decision “was primarily concerned with the prejudicial effect of shackles” on a jury; Court’s observation that shackles could interfere with right to communicate with counsel deemed mere “observation” in nature of dicta, ¶11. A one-judge concurrence (¶¶18-23) makes some useful points about what factors ought to inform the discretionary determination of shackling, something the concurrence says should be “saved only for extraordinary cases.” For a succinct recent analysis of Deck, see Lakin v. Stine, 6th Cir No. 05-1388, 12/19/05. |
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(See Wisconsin Defender and training articles on Earned Release [2003: overview at inception; 2005: follow-up (1), and (2), 2005]; and Challenge Incarceration [2003: inception; 2005: follow-up (1) and (2)] Programs) |
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| Boot Camp (CIP), Generally |
| State v. Jeremy D. Schladweiler, 2009 WI App 177 |
| Pro se |
Issue/Holding:
¶9 Commonly referred to as “boot camp,” the CIP is governed by Wis. Stat. § 302.045, which provides that “the [DOC] shall provide a challenge incarceration program for inmates selected to participate” after meeting the eligibility requirements for the program. Sec. 302.045(1). … |
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| Earned Release Program – Petition for Eligibility under Pre-Effective Date (7/26/03) Sentence: DOC Approval Required but Refusal to Take Position = Approval |
| State v. Kathy J. Johnson, 2007 WI App 41 |
| For Johnson: Jeremy Perri, SPD, Milwaukee Appellate |
| Issue: Whether DOC policy, for inmates under sentence commencing prior to July 26, 2003, to take no position on an ERP petition constitutes approval of the petition under Wis. Stat. § 302.05(3)(e). |
Holding:
¶8 Wisconsin Stat. § 302.05(3)(e) governs inmate petitions for the determination of eligibility for the ERP for inmates sentenced prior to the effective date of § 302.05, i.e., July 26, 2003. Section 302.05(3)(e) provides the procedure to be followed and states, in relevant part:Thus, DOC refusal to act on a petition is tantamount to approval to bring the petition, ¶17. This holding, however, is limited to the current DOC practice of blanket refusal to act; if DOC were to exercise individuated discretion, then the outcome would be different, ¶18. The court also, in passing, indicates that an inmate’s previous participation in ERP may be factored against current eligibility, ¶16 n. 8.If an inmate is serving the term of confinement portion of a bifurcated sentence imposed under s. 973.01, the sentence was imposed before July 26, 2003, and the inmate satisfies the criteria under par. (a) 1., the inmate may, with the department’s approval, petition the sentencing court to determine whether he or she is eligible or ineligible to participate in the earned release program under this subsection….(Emphasis added.) |
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| Earned Release Program – Statutory Ineligibility Due to Type of Crime – Equal Protection (and Substantive Due Process) |
| 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. Stat. ch. 940 to participate in the earned release program. While one purpose of the earned release program is undoubtedly to encourage inmates to participate in treatment for substance abuse, it is also significant that the result of successful participation is a reduction in the time a convicted person must serve in confinement. [6] In effect, participation in the program is an opportunity to have a lesser punishment than that originally imposed. Excluding persons who have committed more serious crimes from this opportunity for reduced confinement is rationally related to the legitimate purpose of punishing more serious crimes more severely. A classification that treats persons differently, for purposes of participation in this program, based on whether their conduct has caused death or great bodily harm, is rationally related to the legitimate purpose of punishing more severely those persons who commit more serious crimes. It is rational to treat conduct that causes death or great bodily harm differently from conduct that does not have that result and to punish the former more severely.Substantive due process challenge rejected for same reason, given that the tests are indistinct, ¶21. |
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| Challenge Incarceration Program ("Boot Camp") -- §§ 973.01(3m), 302.045 – Authority to Impose Waiting Period for Entry |
| State v. David A. Lehman, 2004 WI App 59, PFR filed 3/4/04 |
| For Lehman: Leonard D. Kachinsky |
Issue/Holding:
Sentencing court may impose 4-year waiting period for entry into Challenge
Incarceration Program (“boot camp”), §§ 302.045, 973.01(3m):¶17. The intent of the legislature is therefore advanced by an interpretation of Wis. Stat. § 973.01(3m) that allows a sentencing court to determine not only whether a defendant is eligible for the CIP, but also to set a date of eligibility within the term of confinement in prison. We agree with the State that "[a]llowing a sentencing court to use its discretion in determining when the defendant would be eligible for the CIP comports with the intent of the legislature." |
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| Challenge Incarceration Program ("Boot Camp") -- §§ 973.01(3m), 302.045 |
| State v. Ashley B. Steele, 2001 WI App 160, PFR filed 6/25/01 |
| Steele: Christopher William Rose |
| Issue: Whether sentencing
eligibility for "boot camp" is determined by bright-line statutory guidelines, or by exercise of
trial court discretion. Holding: ¶12. While an offender must meet the eligibility requirements of Wis. Stat. § 302.045(2) to participate in the challenge incarceration program, pursuant to Wis. Stat. § 973.01(3m), the trial court must also determine if the offender is eligible for the program, in the exercise of its sentencing discretion. Here, the trial court determined that despite Steele's qualifications under § 302.045(2), the seriousness of his offenses precluded his participation in the program. We cannot say that this constituted a misuse of the trial court's broad sentencing discretion. We therefore affirm the order of the trial court. |
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| Earned Release Program ("ERP") -- Exercise of Discretion to Determine Eligibility |
| 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, it failed to separately explain its rationale for denying his ERP participation request. However, Wis. Stat. § 973.01(3g) explicitly states an ERP eligibility decision is part of the court’s exercise of sentencing discretion. [3] Thus, while the trial court must state whether the defendant is eligible or ineligible for the program, we do not read the statute to require completely separate findings on the reasons for the eligibility decision, so long as the overall sentencing rationale also justifies the ERP determination.The sentencing court initially indicated that “Owens was ‘not eligible by age’ for either” ERP or Challenge Incarceration (CIP), ¶3. The latter program is age-restricted, ERP isn’t. Odds are, the judge simply got this eligibility requirement wrong. It happens, and there’s nothing unusual or worthy of condemnation about that. In theory, that’s the purpose of postconviction motions, to let the judge correct errors brought to his or her attention. But in practice, and this is a decent illustration, the judge instead “explains,” or “clarifies” that indeed there was no error because after all something else was meant other than the plain implication of the words actually spoken. We’re left, then, with the idae that what the judge really meant was an unarticulated rationale: ERP was denied not on account of the illicit factor of age but on the proper ones of character of the defendant and need for community protection. That’s what she meant, she just never quite around to saying it out loud. These primary sentencing factors are appropriate bases on which to deny ERP, see State v. James L. Montroy, 2005 WI App 230, but that still begs the question of proper exercise of discretion, doesn’t it? For one thing, State v. Gallion, 2004 WI 42 was supposed to usher in a new era of close appellate review of sentencing discretion; in particular (¶38), “What has previously been satisfied with implied rationale must now be set forth on the record.” And isn’t that exactly what occurred in Owens’s instance? To that criticism, the court of appeals apparently would respond that under § 973.01(3g) ERP merely is “part of the court’s exercise of sentencing discretion,” ¶9 n. 3. The suggestion is that the ERP decision is merely embedded in the overall exercise, that it need not support a style="separate statement of reasons. And, indeed, the overall thrust of this decision is that the trial court’s exercise of discretion on ERP need rest only on an “implied rationale.” Not only is this contrary to Gallion (though not to the persistent undermining of that case by the court of appeals virtually from the day it was released) but also to the court of appeals’ own declarations with respect to the procedurally identical CIP: State v. Ashley B. Steele, 2001 WI App 160, ¶ (sentencing judge must first determine preliminary CIP eligibility and then “must determine, exercising its own sentencing discretion, whether” eligibility will be granted); State v. David A. Lehman, 2004 WI App 59, ¶¶15-16 (TIS scheme places responsibility on judges for more carefully fashioned sentencings, CIP included: “Clearly, the legislature intended to provide greater judicial discretion for judges imposing bifurcated sentences and considering CIP eligibility.”). Nor does § 973.01(3g) quite lend itself to the court of appeals’ spin: “the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible” for ERP. The court of appeals reads the text as if it supports an implied rationale on eligibility, but it says nothing of the kind. To the contrary, by making ERP “part” of sentencing discretion, it makes the ERP decision no less important than any other exercise of sentencing discretion; places it within the orbit of Gallion. (Of course, if Gallion is only to be scoffed at then its gravitational pull is going to be weak anyway.) And the purpose of ERP? “Gov. Jim Doyle proposed the program and the Legislature included it in the biennial budget bill as a way to reduce prison populations and give judges another sentencing tool.” (http://www.wicourts.gov/news/thirdbranch/docs/fall03.pdf) Is that purpose fulfilled by the cavalier treatment given not just by the trial judge but also by the court of appeals? Then there is the purported exercise of discretion on its own terms. Granted, an attack on an actual exercise of discretion based on proper factor is almost necessarily doomed by definition. But consider the first reason inferred (!) by the court of appeals, that “from his past apathy and failure to seek help, … Owens was neither sincere about wanting substance abuse treatment nor likely to succeed in the treatment program,” ¶10. Ponder that for a moment. Failure to obtain treatment is a basis to deny it? Anyone with a drug problem carries a lot of baggage, and by definition it’s going to boil down to failed opportunities. Owens hadn’t successfully resolved his drug problem. No kidding. That’s why he should have been considered for treatment, not arbitrarily barred. If he’d been treated successfully he wouldn’t have had a drug problem and ERP would have been irrelevant. Or, rather, the court of appeals has made ERP generally irrelevant, by ratifying the trial judge’s make-weight rationale. |
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| Earned Release Program ("ERP") -- Exercise of Discretion to Determine Eligibility |
| State v. James L. Montroy, 2005 WI App 230 |
| For Montroy: Jay E. Heit; Stephanie L. Finn |
Issue/Holding: The sentencing court properly exercised
discretion in denying eligibility for Earned Release, § 302.05(3), despite
misperceiving at one point that defendant was statutorily ineligible:¶17 … [A]t the December 6, 2004, [postconviction] hearing … [t]he court stated:In the event the background’s not clear enough: at sentencing, the court premised denial of eligibility on Montroy’s “many drug convictions,” ¶4. You might think that persistent drug involvement is a reason for not against eligibility in a program that is, after all, supposed to treat inmates with drug problems. But the idea makes more sense if seen as support for the judge’s conclusion that the individual simply isn’t amenable to treatment – which is probably the best way to construe the remark. Montroy’s claim is that the court’s determination was based on the inaccurate assumption that he was statutorily ineligible – yet, Montroy himself seemingly contributed to this problem, by inducing a ruling on that false assumption (¶5). The court of appeals has imposed an estoppel bar for less. No matter. Montroy eventually brought this to a head with a postconviction motion, and the trial court ruled as quoted above. The long and short of it is that a defendant’s “long criminal record,” showing that “(h)e is incorrigible,” is a proper basis on which to deny ERP eligibility. And though the court of appeals doesn’t provide any embellishment, it’s pretty clear that these postconviction remarks do indeed support the implication of the sentencing remarks that Montroy simply would not benefit from the program. Seen in that light, this is a narrow holding.Well, of course, the Court is very familiar with Mr. Montroy. He’s had a long criminal record since he’s been here in this state. And those are the primary considerations that the Court took into consideration.The State argues that the court’s statements here demonstrate that it exercised its discretion to deem Montroy ineligible. |
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| Earned Release Program ("ERP"), § 973.01(3) -- Trial Court's Authority to Determine When as Well as Whether Defendant Is Eligible -- Identity of "CIP" Purpose |
| State v. Miyosha White, 2004 WI App 237, PFR filed 12/1/04 |
| For White: Leonard Kachinsky |
| Issue/Holding: A sentencing court exercising discretion on eligibility for the earned release program, § 973.01(3g), has authority to determine not only whether but also when the defendant is eligible for the program. The language and purpose of the earned release statute is “almost identical” to the “boot camp” statute, § 973.01(3m), which the court previously held supported the assignment of a waiting period by the sentencing court. State v. Lehman, 2004 WI App 59, 270 Wis. 2d 695, 677 N.W.2d 644. That prior decision thus controls this issue. ¶¶8-10. |
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| Consecutive Sentences -- No Authority to Impose, Relative to Jail Time as Condition of Probation in Another Case -- Remedy of Resentencing |
| State v. Daron E. Maron, 214 Wis. 2d 384, 571 N.W.2d 454 (Ct. App. 1997) |
| For Maron: Susan E. Alesia, SPD, Madison Appellate |
Issue/Holding1:... We conclude that § 973.15(2), Stats., does not give the trial court authority to order that the sentence be served consecutive to jail time already being served as a condition of probation. ...Issue/Holding2: As a general rule, resentencing is the proper method to correct a sentence which is not in accord with the law. State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841, 844 (Ct. App. 1996). Maron argues, however, that because he has completed serving the jail time that was a condition of probation in the first case, a remand for resentencing would permit the trial court to do what § 973.15(2), Stats., does not authorize—impose a sentence consecutive to the prior probation. ... A sentencing proceeding is not a game, and when a trial court mistakenly imposes a criminal disposition that is not authorized by law, the result should not be a windfall to the defendant. State v. Upchurch, 101 Wis.2d 329, 336, 305 N.W.2d 57, 61 (1981). We conclude that a remand for resentencing is the proper method to correct the sentence. |
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| Consecutive Sentences -- Authority to Stay Sentence Until Release or Discharge on Ch. 980 Commitment. |
| State v. David Carneal White, 2000 WI App 147, 237 Wis.2d 699, 615 N.W.2d 667 |
| For White: Jeffrey A. Kingsley |
| Issue: Whether a court has authority to stay a sentence until the defendant is released or discharged from an otherwise unrelated Ch. 980 commitment. |
Holding: The purposes of
§ 971.17
NGI and Ch. 980 SVP commitments being similar (¶¶8-9),
the reasoning of
State v.
Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 660 (1998) applies, ¶11: Accordingly, we conclude that a circuit court has authority to stay a sentence for "legal cause" during the period of a defendant's commitment under WIS. STAT. ch. 980. We also conclude that a circuit court, in deciding whether to stay a sentence during the period of a ch. 980 commitment, must exercise discretion on a case-by-case basis in order to balance and give effect to the goals of both mental health treatment and incarceration. Just as the supreme court concluded, with respect to WIS. STAT. §§ 973.15(1), (8)(a) and 971.17, we conclude, with respect to § 973.15(1), (8)(a) and ch. 980, that a sentencing court must "make a reasoned determination about imposing or staying a prison sentence on the basis of the facts of each case." Szulczewski, 216 Wis. 2d at 505.Analysis: The holding is self-explanatory. More interestingly, the court's explicit linkage of 980 and 971.17 commitments illustrates the incremental tendency to "criminalize" the putatatively civil commitment procedure of Ch. 980. The holding in this case might not be problematic if 980 and 971.17 procedures were comparable; but they're not: "insanity acquittees constitute a special class that should be treated differently from other candidates for treatment," Jones v. United States, 463 U.S. 354, 370 (1983). Our supreme court has also recognized that insanity and civil commitment subjects aren't really similar. E.g., State v. Gebarski, 90 Wis. 2d 754, 771-72, 280 N.W.2d 672 (1979); State v. Field, 118 Wis. 2d 269, 347 N.W.2d 365 (1984). |
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| Consecutive Sentences - Sentence Consecutive to Future Revocation |
| State v. James E. Cole, 2000 WI App 52, 233 Wis. 2d 577, 608 N.W.2d 432 |
| Issue: Whether a sentence can be ordered to run "consecutive to revocation" when the defendant's parole has not yet been revoked. |
| Holding: A court has authority, under Wis. Stat. § 973.15(2)(a), to make the current sentence consecutive to a revocation of parole, even though the revocation has not yet occurred. (To account for the possibility that the defendant won't be revoked, trial courts are "urge(d) [to] direct that in the event that the parole or probation is not revoked, the instant sentence should commence forthwith," ¶11 n. 2.) |
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Same result as to probation revocation:
State v. David Thompson, 208 Wis. 2d 253, 559 N.W.2d 917 (Ct. App. 1997),
and essentially followed in this case. On a different point: if your client faces federal sentencing while state charges are pending, be aware that "the circuits are split as to whether a federal court has the authority to order that the sentence it is imposing run concurrently with a state sentence that has not yet been imposed," Abdul-Malik v. Hawk-Sawyer, 2nd Cir. No. 04-3877-pr, 4/5/05, and cites. To make matters worse, a state court's specification that its term run concurrent with a federal one isn't bdingin on federal authorities. "Thus in some circuits, when a defendant is sentenced first in federal court and then on an unrelated offense in state court, neither judge can effect concurrent sentencing even if that is the intention of both Id. |
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| Costs - allocated per count, § 814.60(1) |
| State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999) |
| For Carter: Paul G. LaZotte |
| Issue/Holding: The $20 fee for the clerk of court under § 814.60(1) is allocated on a per-count, rather than per-case, basis. |
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| Costs -- Attorney Fees – Constitutional Limits, Recoupment: Indigency Determination |
| 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, and to enforce that obligation only against those who actually become able to meet it without hardship.” Fuller v. Oregon, 417 U.S. 40, 54 (1974).As a result, these requirements are read into § 973.07: ¶16 We fill in this legislative silence with the minimum requirements in Fuller. We hold that, at least where no prior determination of ability to pay exists, the court must consider whether the defendant had the ability to pay the fine when it exercises its discretion under Wis. Stat. § 973.07. The court’s consideration of this issue must be based on a finding of ability to pay made at a hearing where the defendant is given notice and an opportunity to be heard. [4] Here, no such finding was made at sentencing, at the time Helsper’s fees were set, or at the time the commitment order was issued. |
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| Costs -- Bail, as Satisfaction |
| State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05 |
| For Baker: William E. Schmaal, SPD, Madison Appellate |
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Issue/Holding: The plain text of § 969.02(6) mandates that bail money be used to satisfy court costs, with no room for discretionary return to the depositor rather than payment of costs. ¶¶7-9.
This is a misdemeanor, but the relevant felony statute, § 969.03(4), is indistinguishable and the holding would undoubtedly apply. Note, too, that the latter statute has been upheld against due process / notice attack, State v. Iglesia, 185 Wis. 2d 117, 517 N.W.2d 175 (1994). It may be worth recalling that restitution is treated distinctly and is not subject to these bail-satisfaction provisions, State v. Cetnarowski, 166 Wis. 2d 700, 713, 480 N.W.2d 790 (Ct. App. 1992). Baker, it should be mentioned, also argued that the trial court may – and in this instance at least implicitly did – waive court costs, thus freeing the way for return of all the cash bail. The court of appeals, however, declines to reach the issue, leaving it open for further litigation, ¶10: “In general, § 814.29(1) protects the constitutional right of access to the courts for all. Whether § 814.29(1) provides a basis to waive court costs ordered at judgment in a criminal proceeding is not an issue that is properly before us today. The circuit court did not waive Baker's costs-it ordered them satisfied through credit for jail incarceration time.” In other words, because the issue of waiver of costs is explicitly left open, this holding does not inhibit you from asking the court to waive costs, thus freeing up posted bail for return to the depositor. |
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| Costs - jail assessment - § 302.46(1) - fine or forfeiture required. |
| State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999). |
| For Carter: Paul G. LaZotte. |
| Issue/Holding: The jail assessment in §§ 302.46(1) & 814.60(2)(ag) is contingent on imposition of a fine or forfeiture. |
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| Costs -- Order to Produce |
| State v. Tronnie M. Dismuke, 2001 WI 75, 244 Wis. 2d 457, 628 N.W.2d 791, reversing and remanding, 2000 WI App 198, 238 Wis. 2d 577, 617 N.W.2d 862 |
| For Dismuke: Richard D. Martin, William S. Coleman, SPD, Milwaukee Appellate |
| Issue: Whether a defendant may have to bear costs of being produced from prison for court appearances. |
Holding: ¶4 We reverse. Our decision in State v. Ferguson, 202 Wis. 2d 233, 549 N.W.2d 718 (1996) interpreted the term 'fees' in a related subsection of the criminal costs statute, Wis. Stat. § 973.06, to include only those sums 'ordinarily charged to and payable by another,' not internal operating expenses of a governmental unit. The record in this case contains conflicting information and no evidence about whether the expenses associated with executing orders to produce are generally 'charged to and payable by another,' or are merely internal operating expenses of the Milwaukee County Sheriff's Department. The record is similarly underdeveloped and murky on the specific amounts assessed in this case, and there is no record at all on the constitutional issues. Accordingly, we reverse the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion....Go to Brief |
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| Costs - payment for sexual assault examination. |
| State v. Daniel E. Rohe, 230 Wis.2d 294, 602 N.W.2d 125 (Ct. App. 1999). |
| For Rohe: Charles B. Vetzner, SPD, Madison Appellate. |
| Issue: Whether costs for a sexual assault examination were properly taxable, where the examination neither produced any results nor was used at trial. |
| Holding: Because the examination was part of the state's investigation and prosecution; and because the examiners were on the state's witness list, their "development of evidence was used in the prosecution" and their fees were taxable under the expert witness provision of § 973.06(1)(c). |
| Go To Brief |
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| Costs for Standby Counsel |
| State v. John W. Campbell, 2006 WI 99, on certification |
| For Campbell: Charles B. Vetzner, SPD, Madison Appellate |
Issue/Holding:
¶72 Wisconsin Stat. § 973.06 permits the court to impose a lengthy list of costs upon an unsuccessful defendant. At sentencing, the court may require a probationer to reimburse the county or the state, as applicable, "for any costs for legal representation . . . for the defense of the case." Wis. Stat. §§ 973.09(1g) and 977.07(2m). We think the term "defense attorney" in § 973.06 is broad enough to cover standby counsel in certain situations.Because the circuit court ordered counsel fees without regard to ability to pay, Campbell is entitled on remand to an indigency hearing, ¶¶79-80. |
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| Costs -- Travel Expense of State's Witness |
| State v. Gary L. Gordon, 2002 WI App 53, reversed on other grounds, 2003 WI 69 |
| For Gordon: Steven P. Weiss, SPD, Madison Appellate |
| Issue/Holding: The trial court erroneously exercised discretion in imposing costs for the travel expense of an officer, in that this expense was necessitated by a change in trial date attributable primarily to the prosecution, not the defendant. ¶¶49-51 |
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| DNA Surcharge – Generally |
| State v. Ray Shawn Cherry, 2008 WI App 80 |
| For Cherry: John T. Wasielewski |
Issue/Holding:
¶5 The statutes governing this issue are clear. If a trial court sentences a defendant to a felony involving a sex crime contrary to Wis. Stat. §§ 940.225, 948.02(1) or (2) 948.025, or 948.085, the trial court must order the defendant to pay the $250 surcharge for the DNA sample. Wis. Stat. § 973.046(1r). When the felony does not involve a sex crime under one of those statutes, however, the trial court may order the defendant to pay the $250 DNA surcharge. Sec. 973.046(1g). Thus, in the latter situation, the trial court has the discretion to decide whether or not to impose the DNA surcharge. |
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| (Permissive) DNA Surcharge – Exercise of Discretion |
| State v. Ray Shawn Cherry, 2008 WI App 80 |
| For Cherry: John T. Wasielewski |
| Issue: Whether the sentencing court properly exercised discretion in imposing a DNA surcharge, where it misconstrued such action as mandatory rather than permissive and ignored the defendant’s prior such assessment. |
Holding:
¶9 We hold that in assessing whether to impose the DNA surcharge, the trial court should consider any and all factors pertinent to the case before it, and that it should set forth in the record the factors it considered and the rationale underlying its decision for imposing the DNA surcharge in that case. Such is the exercise of discretion contemplated both by the statute and our supreme court’s pronouncement in State v. Gallion, 2004 WI 42, ¶19, 270 Wis. 2d 535, 678 N.W.2d 197 (The exercise of discretion contemplates a process of reasoning: “‘This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standard.’”) (citation omitted).The court of appeals has long held that a sentencing court erroneously exercises discretion when it treats as mandatory a disposition that in fact is discretionary. E.g., State v. Martin, 100 Wis. 2d 326, 302 N.W.2d 58 (Ct. App. 1981) (sentence overturned where court stated it would never grant probation on drug offense). Cherry fits precisely within that paradigm, at least as a pragmatic matter, in that the sentencing court also treated as mandatory something that is discretionary. The court of appeals, then, could have simply cited Martin and then gone on to other business. But it didn’t, relying instead on Gallion, which makes the impact broader. In brief, the court seems more than willing to apply Gallion to aspects of sentence other than imprisonment—not just this costs case but also, and recently, fines, State v. Ahern Ramel, 2007 WI App 271, ¶14 (“under Gallion some explanation of why the court imposes a fine is required”). The factors will differ depending on the context, of course, but that there must be some articulation of relevant factors may not be doubted. Now, if the court were only willing to put some teeth into Gallion as it relates to the prison portion of the sentence … |
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| DNA Collection, § 973.047, and Surcharge, § 973.046 -- Prior Collection |
| State v. Franciollo L. Jones, 2004 WI App 212, PFR filed 11/11/04 |
| For Jones: Syovata Edari; Ellen Henak (on PFR), SPD, Milwaukee Appellate |
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Issue: Whether the trial court properly ordered Jones to pay a DNA surcharge even though he had already provided a DNA sample in an earlier case.
Holding: ¶5 WISCONSIN STAT. § 973.047 obligates the trial court to require anyone convicted of a felony to provide a DNA specimen. … As the statute advises, the purpose behind this requirement is to create a DNA databank. The statute makes no exception for persons who have already submitted DNA samples, although the trial court in this case found that the State Crime Laboratory could not use more than one sample per person.This is a chronic problem, in Milwaukee anyway; the surcharge ($250) is not inconsiderable and this result a real shame – not least because the decision doesn’t quite resolve some underlying problems. As the block quotes suggest, the legislature places DNA collection and surcharge in two distinct statutes. For certain specified felonies the sentencing court must impose a $250 surcharge; for all other felonies, the surcharge is discretionary. § 973.046. And as to all felony convictions, the sentencing court must order the defendant to provide a DNA sample, under § 973.047. (As mentioned below, the administrative code mandates a surcharge whenever a sample is ordered, which means that a surcharge is really non-discretionary in felonies.) In Jones’ instance, the court ordered that he provide a sample under § 973.047 – but as it turned out this was unnecessary, because the state already had his sample, and no attempt was ever made to implement the collection order. But a surcharge was also ordered (as noted, the scheme made it mandatory); when Jones pointed out on postconviction motion that the state didn’t need his sample, the judge said that the surcharge was a discretionary matter and would be forgiven as a matter of discretion if Jones could show he’d paid the surcharge on the earlier collection. The court of appeals' affirmance pays scant attention to significant underlying problems.
A survey of fourth amendment aspects of collecting DNA from prisoners may be found here. Long and short of it is that DNA collection is upheld under either of two rationales, “special-needs” and “reasonableness-balancing”; in theory, at least, neither theory should allow multiple collections from the same person. Once the state already has the person’s sample, there can be no need to collect another. In other words, the order that Jones provide an additional sample violated his fourth amendment rights. The court of appeals more or less finesses this problem by assuming that the trial court rescinded this order. ¶1.True enough, once the order to provide a sample is taken off the table, it probably doesn’t matter why. But then the question becomes why the court ordered the surcharge in the first place. If the court of appeals can’t be faulted for ignoring the threshold fourth amendment dimension of the issue, its treatment of the trial court’s discretion is seriously problematic.
Start with this premise: because a surcharge is in effect a fine, and because a fine is reviewed same as a sentence, State v. Kuechler, 2003 WI App 245, ¶¶7-12, a surcharge must also be reviewed as an act of sentencing discretion. And that means triggering the close review recently mandated by State v. Gallion, 2004 WI 42. You won’t find any sort of close scrutiny of Jones’ surcharge. Indeed, you’ll be hard pressed to find any scrutiny. About all the court of appeals says is that because the trial court could exercise discretion in favor of a surcharge, its exercise was proper. ¶11. In theory, that is, a reviewing court needs to know exactly why this surcharge advanced any sentencing goal -- something not explained in this opinion. One thing is clear though: the judge linked the surcharge to the sample ordered in a prior, unrelated case. This is at least seemingly improper under State v. Oakley, 2000 WI 37 (court can’t make payment of prior, unpaid fine condition of probation in new case). How is Jones’ situation meaningfully distinguishable? The court of appeals doesn’t say, indeed doesn’t even cite Oakley. That said, an alternative theory is being litigated: a DNA surcharge is not in the nature of a fine, but, rather, is a “service or fee” that may be forgiven on account of indigency under § 814.29(1)(a); this argument is raised argument in a pending court of appeals case, State v. Ryan E. Baker, Nos. 04-0590 / 0591-CR, Dist. IV. But that’s not quite all.
In at least some instances, the judge orders the DNA sample without mentioning the surcharge and then the clerk imposes the surcharge in the judgment of conviction as a ministerial act. Nothing wrong with that, because where the court does order a sample, then the court must (i.e., “shall”) “impose a DNA analysis surcharge of $250[.]” Admin. Code Jus § 9.08(1). (Not clear from the facts if this was what happened to Jones.) Then, as in Jones’ instance, the defendant goes back on postconviction motion and says the order to provide a sample should be vacated, and the trial court then exercises “discretion” under § 973.046. There’s at least an argument that such an act violates an expectation of finality in sentence, and therefore violates double jeopardy. See, generally, State v. Willett, 2000 WI App 212, for overarching principles. The decision may leave these issues begging, but may well be treated as if it had indeed resolved them. If all else fails, you’re entitled to an indigency hearing, Kuechler, 2003 WI App 145, ¶14. |
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DNA Collection Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis 1996) Issue/Holding: Compulsory collection of DNA from imprisoned sex offenders (now ordered at sentencing under § 973.047 for anyone convicted of any felony, as implemented by Admin Code § JUS 9.04(3)) satisfies the fourth amendment: "Although the state's DNA testing of inmates is ultimately for a law enforcement goal, it seems to fit within the special needs analysis the Court has developed for drug testing and searches of probationers' homes, since it is not undertaken for the investigation of a specific crime." (Shelton has been explictly ratified by Green v. Berge, 7th Cir. 01-4080, 1/9/04. For discussion of that case, and of the fourth amendment issues involved in DNA collection form prisoners, see here) |
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| No Biological Specimen Ordered, No DNA surcharge Permitted |
| State v. Suzette M. Ward, 228 Wis.2d 301, 596 N.W.2d 887 (Ct. App. 1999). |
| For Ward: Patricia L. Arreazola. |
| Issue/Holding: Where the defendant is neither convicted of an automatically qualifying offense (§§
940.225,
948.02(1)&(2)) nor ordered to provide a biological specimen, the
§ 973.046 DNA surcharge may not be imposed. (Update: The statute has since been substantially changed; the current § 973.047 requires specimens and DNA analysis for all felons. The current § 973.046 permits imposition of the $250 DNA surcharge for any felony conviction, except that the surcharge is required for conviction under §§ 940.225, 948.02(1) or 948.025. See also entry on collecting DNA under §. 973.047.) |
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| Enhancer -- Allocation |
| State v. Kent Kleven, 2005 WI App 66 |
| For Kleven: Roberta A. Heckes |
Issue/Holding:
¶14. We conclude that, provided the sentence imposed exceeds the maximum term of imprisonment established for the base offense, a court's remarks attributing a portion of the sentence to an applicable enhancer does not constitute grounds to vacate that portion of the sentence. As the supreme court explained in State v. Upchurch, 101 Wis. 2d 329, 336, 305 N.W.2d 57 (1981), a sentencing proceeding is "not a game," in which "a misstatement by the trial judge would result in a windfall to the defendant." |
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Enhancers -- Applicability -- Underlying Crime Required --
Violation of Harassment Injunction (§ 813.125(4)) Subject to Enhancement State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02 For Sveum: Ian A.J. Pitz |
| Issue/Holding: A repeater enhancement applies only to a crime, which is an offense prohibited by state law and punishable by fine and/or imprisonment. Violation of harassment injunction fits this definition and therefore supports repeater enhancement. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct. App. 1993) (contempt doesn't support repeater enhancement), distinguished. ¶¶7-17. |
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| Enhancer – Collateral Attack – Transcript Missing from Enhancer Case, & Defendant’s Prima Facie Burden |
| 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. … |
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| Enhancer – Collateral Attack – Challenge to OWI-1st |
| 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, with the Eau Claire conviction occurring first. Hammill asserts that the Village of Cameron charge was an OWI-second and that a municipal court does not have subject matter jurisdiction over a second or subsequent OWI charge, citing County of Walworth v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982). Hammill then contends that, because the court lacked subject matter jurisdiction, the conviction is a nullity and cannot be counted for penalty enhancement purposes in this case.Could Hammill have brought an independent challenge to his Village conviction under § 806.07(1)(d)? That might depend on 1) whether the judgment was “void” and if so 2) whether the § 806.07(2) “reasonable time” limitation for bringing the motion allows you to wait 12 years before challenging a void judgment. The answer to the latter question seems settled, see e.g., Neylan v. Vorwald, 124 Wis.2d 85, 100, 368 N.W.2d 648 (1985) (“Section 806.07(2), Stats., requiring motions to vacate orders or judgments to be brought in a "reasonable time" does not apply to void judgments.”). Let me quickly add the equivalent of a strongly worded consumer act warning: I haven’t shepardized the case or otherwise researched the point, so you will definitely want to do your own follow-up; sound advice any way, under any circumstances. The 1st question thus seems to be the decisive one—on the merits, someone with expertise in this area will have to weigh in; as a procedural matter, though, and assuming Neylan applies, it’s safe to say that if a challenge is to be made, it would have to be as an independent § 806.07 attack in the OWI-1st proceeding. Separate, tangential point: it might be worth recalling that the Hahn rule has similarly been applied to challenges to a prior refusal used as an enhancer, State v. Keith S. Krause, 2006 WI App 43, ¶12 (no right to counsel in refusal proceeding, therefore Hahn precludes collateral attack within enhanced proceeding). |
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| Enhancement – Collateral Attack: Prior Refusal, as OWI Enhancer |
| State v. Keith S. Krause, 2006 WI App 43 |
| For Krause: Roger G. Merry |
Issue/Holding:
Because collateral attack on a prior
conviction used as a sentencing enhancer is limited to denial of counsel, and
because the right to counsel does not attach to a civil proceeding, a refusal
revocation is not subject to collateral attack on its use as an OWI enhancer:
¶12 In an enhanced-penalty situation, a collateral attack on a prior conviction used for enhancement must be founded on a claim of actual or constructive denial of the constitutional right to counsel. See Hahn, 238 Wis. 2d 889, ¶17. However, because a refusal hearing is a civil proceeding, no constitutional right to counsel attaches. See Shoepp, 204 Wis. 2d at 272; Stroe, 256 F.3d at 500. Accordingly, Krause did not have a constitutional right to counsel upon which to base his collateral attack. We affirm the judgment of conviction and the order denying postconviction relief.The fact that a refusal is a civil proceeding might support lines of attack not available to the typical enhancer. Independent collateral attack is supported by § 806.07(1)(a), which in some ways is a more flexible remedy than § 974.06. You don’t for example have to be in custody, nor does your argument have to raise a constitutional or jurisdictional defect. On the other hand, there is a one year (or “reasonable time”) limitation. Krause did file a § 806.07 motion but came up against the time bar, ¶4. He then filed a § 974.06 motion which was denied on the basis that he hadn’t been denied counsel, ¶5. The motion could just as easily have been barred on the basis that Krause wasn’t in custody under the refusal revocation, though the court doesn’t say as much. For that matter, it ought to be recalled as a general proposition that if the attack involves denial of counsel the challenge can be made through the enhancement proceeding itself, where procedural bars arguably fall away. State v. David M. Hahn, 2000 WI 118, ¶28. But as Krause clarifies, there’s no merit to such an argument regardless of the forum, if the enhancer is a refusal. Still, if there’s some other basis for attack, § 806.07 would seem to be the vehicle. One other potential sticking point. OWI enhancement is based on the “prior conviction” rule; see, e.g., State v. Brandon J. Matke, 2005 WI App 4, ¶16 for explanation. But that rule is based on the idea that there was a prior conviction—which is to say, a finding of guilt at a proceeding at which the defendant had the rights to jury trial and proof beyond reasonable doubt. |
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| Enhancement – OWI Prior, Collateral Attack – Procedure |
| State v. Alan J. Ernst, 2005 WI 107, on certification |
| For Ernst: Jeffrey W. Jensen |
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Issue1:
Whether violation of the standards mandated
by
State v. Klessig, 211
Wis.
2d 194 ¶24, 564 N.W.2d 716 (1997) for valid waiver of
counsel supports a collateral attack on a prior conviction.
Holding1: ¶25 … For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she "did not know or understand the information which should have been provided" in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel. See Hampton, 274 Wis. 2d 379, ¶46 (citing Bangert, 131 Wis. 2d at 274-75). Any claim of a violation on a collateral attack that does not detail such facts will fail.Issue/Holding2: If the defendant does make a prima facie showing, then the procedures authorized by State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) apply: the burden shifts to the State to prove by clear and convincing evidence that waiver of counsel was knowing, intelligent and voluntary, ¶27; the defendant may be questioned at the ensuing evidentiary hearing, ¶¶30-31; any 5th amendment claim of privilege against testifying at such a hearing is waived by putting the matter of knowledge of rights at issue, ¶33; if the defendant refuses to testify, the trial court may draw an adverse inference, ¶35. |
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As a casual aside, the court asserts, ¶33: “To
make a prima facie showing a defendant is required to point to facts that
demonstrate that he or she did not knowingly, intelligently, and voluntarily
waive his or her constitutional right to counsel. An affidavit from the
defendant setting forth such facts would be necessary, in order to
establish a prima facie case.” Assuming that this is not a slip (and it
would be very unwise to make such an assumption), this requirement of an affidavit from defendant
substantially deviates from current pleading practice:
contrast this explicit requirement of an
affidavit,
with past indications that the
defendant need “merely allege he or she did not know or understand the
information that should have been provided at the plea hearing,”
State v. John A. Jipson, 2003 WI App 222, 2003 WI App 222,
¶7, 267 Wis. 2d 467, 671 N.W.2d 18, citing Bangert, 131 Wis. 2d at 268-69; and to like
effect, see generally, State v. Corey J.
Hampton, 2004 WI 107. The court currently has on its
calendar a Bangert
sufficiency-of-pleading case, 2003AP2662-CR, State v. James E. Brown, rev. gr. 6/1/05
– perhaps that case will provide some clarification. In the meantime,
though, you ignore ¶33 at your peril.
One additional point worth mentioning: can the State, under the guise of wide-open cross rule, examine the defendant on a range of incriminatory matters and then use that material at the ensuing trial? The court’s broadly stated waiver language is certainly worrisome if taken at face value. Fortunately, you don't have to take the language at face value, because § 901.04(4) explicitly limits the wide-open cross rule when the defendnat is testifying as to a "preliminary matter," as this surely is. And though it is therefore not necessary to go further, note as well the court’s express analogy to State ex rel. Goodchild v. Burke, 27 Wis. 244, 133 N.W.2d 753 (1965), and its recognition that “the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances” of the matter in controversy, ¶31 n. 10. Stress, of course, on “limited purpose,” which ought to be something of a counter-weight against the wide-open cross rule. |
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| Enhancers -- Collateral Attack on, at Sentencing -– Breach by Defendant of Plea Bargain Underlying Enhancer-Conviction |
| State v. Robert C. Deilke, 2004 WI 104, reversing 2003 WI App 151, 266 Wis. 2d 274, 667 N.W.2d 867 |
| For Deilke: Kelly J. McKnight> |
| Issue: Whether a defendant’s successful challenge to a prior plea-bargain based conviction that is being used as an enhancer in a current proceeding amounts to a breach of that prior plea bargain so as to allow reinstatement of charges dismissed under it. |
Holding1:
Substantial and material breach: ¶16 The State asserts that due to Deilke's breach, it did not receive the full benefit of the plea bargains because his successful attack eliminated a portion of the punishment for each conviction——the effect of the convictions on the statutory penalties available for subsequent OMVWI convictions. Deilke makes three arguments to counter the State's argument and to support the court of appeals decision: …Two points. First, the effect of a collateral attack on a repeater allegation is to vacate the prior conviction – something that was at least arguable but now is explicit. (“We conclude that the result of Deilke's successful collateral attack on the convictions was to invalidate the convictions.”) Second, it isn’t entirely clear whether this notion of defendant’s breach for attacking the prior conviction is limited to OWIs. Though the majority’s language is broad in some respects, it does focus narrowly on the peculiar characteristics of OWI, e.g., ¶20 (“part of Deilke's punishment was the effect of the statutory scheme regarding drunken driving penalties under Wis. Stat. § 346.65, which envisions progressive punishment as a central component of convictions”) and ¶21 (“In addition, the prosecutor is without the authority or power to bargain away the penalty-enhancing character of an OMVWI or PAC conviction”). With those comments in mind, it’s possible to see the organizing principle of the case in this light: a successful attack on an OWI / PAC plea-bargained repeater is a substantial and material breach of that plea as a matter of law. What about other contexts? It’s hard to imagine that this issue will come up much if at all outside the traffic context: attack on a repeater allegation is limited to denial of right to counsel, State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, ¶4, clarified on reconsideration, 2001 WI 6, and as a practical matter that’s something unlikely to be at issue outside of criminal traffic cases such as OWI and OAR. But that doesn’t mean you can’t have a sort of spill over effect – when, for example, OWI and non-OWI(s) are the subject of a common plea bargain, and then you raise a successful postconviction challenge to a plea-bargained OWI repeater; have you, in such an instance, breached that plea bargain as well as the prior one? That is probably a fact-specific question. Dielke does, as suggested, support the idea that the attack breaches the prior agreement, but it doesn’t suggest that the present agreement would necessarily be breached. All you can do is keep in mind the overarching principle: “¶14 A material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the non-breaching party.” |
Holding2:
Remedy for breach¶26 In this case, the State requested reinstatement of the PAC charges against Deilke. The circuit court granted the motion and Deilke, with advice of counsel, pled to the PAC counts. The State did not request any additional jail time, fines or term of license revocation for these convictions, other than that which had been imposed at the time of the OMVWI convictions. However, the PAC convictions then served as the basis for the OMVWI-5th and PAC-5th charges that occurred in 2001. We conclude that the circuit court appropriately exercised its discretion when it rescinded the plea agreements and returned the parties to the positions they occupied at the time they believed they had entered into valid plea agreements.Deilke does not, under the circumstances, have a statute of limitations defense to the reinstated charges, because “Deilke’s pleas induced the State to refrain from prosecuting the PAC charges when they were originally filed,” ¶30. This seems to be an estoppel type of analysis, though the court doesn’t use that term. Instead, the court simply suggests that the SoL was tolled by Deilke’s plea agreement. |
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| Enhancers -- Collateral Attack on, at Sentencing State v. Thomas A. Drexler, 2003 WI App 169, PFR filed 8/1/03 For Drexler: Ralph A. Kalal Issue/Holding: In support of a collateral attack on a prior OWI conviction used to enhance a current OWI prosecution, Drexler submitted an affidavit asserting that the trial court had not advised him of his right to counsel: although this was enough to establish a prima facie case of denial of right to counsel, the state met it burden of knowing and intelligent waiver of counsel by producing a transcript of the prior proceeding which showed that the court did advise Drexler of his right to counsel. ¶¶7-11. (Note: The court expresses concern that the SCRs relating to record-retention create “a problem of statewide concern that should properly be addressed by the supreme court,” because “the State is placed in an untenable position under Baker if a defendant collaterally attacking a prior conviction can meet his or her burden of proof by simply filing an affidavit recounting his or her version of what occurred five, ten, twenty or twenty-five years earlier.” ¶11 n. 6.) |
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Enhancers -- Collateral Attack, as Part of Sentencing Proceeding -- "En Masse" Reading of Rights State v. Thomas M. Stockland, 2003 WI App 177 For Stockland: Ralph A. Kalal Issue/Holding1: The transcript of the prior proceeding did not itself show that defendant’s waiver of right to counsel was accompanied by explicit advice as to the dangers of self-representation. But it did show that rights were delivered “en masse” and this was sufficient to overcome the presumption of non-waiver: ¶14. The validity of Stockland's waiver of counsel must be examined under the law prevailing at the time which was explained by the supreme court in Pickens v. State, 96 Wis. 2d 549, 563-64, 292 N.W.2d 601 (1980), overruled by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997) ….Issue/Holding2: By referring to its rendition of rights earlier and having the defendant acknowledge that he understood those rights, the trial court established an adequate record of waiver: ¶22. Today, we take the logical step of adapting the Moederndorfer language to situations such as Stockland's where the court delivers rights to the defendant en masse. This reasoning flows from what we explicitly approved in Moederndorfer: Those colloquys that "specifically refer to some portion of the record or communication between defense counsel and defendant which affirmatively exhibits defendant's knowledge of the constitutional rights he will be waiving." Id. at 827 (emphasis and citation omitted).(Note: This is a bit too pat. In Moederndorfer, the rights were spelled out in a written form; at least everyone knew how they’d been expressed. Indeed, the court later made clear that it had simply approved a form, the colloquy being something else altogether. State v. Hansen, 168 Wis.2d 749, 755-56, 485 N.W.2d 74 (Ct. App. 1992): While our approval of the Moederndorfer form certainly lessened the extent and degree of the colloquy otherwise required between the trial court and the defendant, it was not intended to eliminate the need for the court to make a record demonstrating the defendant's understanding that the plea results in the waiver of the applicable constitutional rights. The record made in Moederndorfer is demonstrative. Although the personal colloquy there was also brief, it nonetheless established the defendant's understanding that, by entering the plea, he was giving up the rights detailed in the form. Moederndorfer, 141 Wis.2d at 828-29 n.1, 416 N.W.2d at 630. This is a subtle, but important, requirement.A subtle but important requirement apparently now forgotten. There was no form for Stockland, only a very generalized nod to unspecified “rights.” We know exactly what rights were spelled out and that Moederndorfer said he understood; we literally have no idea what rights were read “en masse” prior to Stockland’s plea, and we therefore have no idea what he did or didn’t understand. (Maybe there was something in this record that indicated the contents of the “en masse” rights, but the court of appeals doesn’t say as much.) Would that be sufficient for a “Moederndorfer form”? No, of course not – so why is Moederndorfer controlling? ) |
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| Enhancers -- Collateral Attack on, as Part of Sentencing Proceeding |
| State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, clarified on reconsideration, 2001 WI 6, on certification. |
| For Hahn: Steven G. Bauer |
| Issue: "(W)hether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing, intelligent, and voluntary." ¶3. Holding: ¶4. We conclude that an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. We further conclude, as a matter of judicial administration, that an offender may not use the enhanced sentence proceeding predicated on a prior conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. Because the defendant in the present case does not allege that a violation of his constitutional right to a lawyer occurred in the prior conviction, he may not challenge his 1994 conviction during this 1997 persistent repeater proceeding.Analysis: The court previously held that a prior conviction alleged as a sentencing enhancer could be challenged during the sentencing proceeding, as based on an unknowing, involuntary guilty plea; challenged, that is, without much restriction as to the nature of the asserted constitutional infirmity of the enhancer. State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992). The court now limits Baker, on the strength of Custis v. United States, 511 U.S. 485 (1994), to claims that the prior conviction was obtained through denial of the right to assistance of counsel (not, it should be stressed, denial of effective assistance, but denial of counsel altogether), ¶17: Accordingly, we conclude that Baker should be limited to adhere to Custis: In an enhanced sentence proceeding predicated on a prior conviction, the U.S. Constitution requires a trial court to consider an offender's allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer.This new limitation may substantially alter present sentencing procedure by eliminating almost all attacks on enhancement, though the decision is carefully limited to attacks in the present sentencing proceeding (as clarified on reconsideration): ¶28 these administrative considerations may weigh differently in different cases, we conclude that considerations of judicial administration favor a bright-line rule that applies to all cases. We therefore hold that a circuit court may not determine the validity of a prior conviction during an enhanced sentence proceeding predicated on the prior conviction unless the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior conviction. Instead, the offender may use whatever means available under state law to challenge the validity of a prior conviction on other grounds in a forum other than the enhanced sentence proceeding. If successful, the offender may seek to reopen the enhanced sentence. If the offender has no means available under state law to challenge the prior conviction on the merits, because, for example, the courts never reached the merits of this challenge under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), or the offender is no longer in custody on the prior conviction, the offender may nevertheless seek to reopen the enhanced sentence. We do not address the appropriate disposition of any such application.The U.S. Supreme Court subsequently held that habeas can't be sued to support attack on an expired prior even if used to enhance the current sentence. Daniels v. U.S.; Lackawanna Co. D.A. v. Coss. Though the reconsideration clarification supports a more generous view of the right to proceed with a collateral attack under Wisconsin versus federal law, a somewhat casual explanatory aside in a more recent case also suggests otherwise. State v. Lawrence P. Peters, 2001 WI 74 ¶16, 244 Wis. 2d 470, 628 N.W.2d 797: "That is, a defendant may directly rather than collaterally challenge a prior conviction used to enhance a subsequent sentence, and if successful, apply to the court to have the enhanced sentence adjusted." |
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| Enhancers -- Collateral Attack on |
| State v. Charles J. Burroughs, 2002 WI App 18 |
| For Burroughs: William F. Mross |
| Issue: Whether the record sufficiently supports Burroughs' guilty plea on a prior offense supporting his persistent offender status. |
| Holding: Because Burroughs doesn't contest the fact that he was represented by counsel when he entered the plea to the prior offense, his right to challenge the plea is barred under State v. Hahn, 2001 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528. ¶¶29-30. |
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| Enhancers -- Collateral Attack on, at Sentencing |
| State v. Lawrence P. Peters, 2001 WI 74, 244 Wis. 2d 470, 628 N.W.2d 797, reversing, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655 |
| For Peters: Jane K. Smith |
| Issue: Whether Peters may, at his OAR-5th sentencing, collaterally attack his OAR-2d conviction, on the ground of denial of counsel. |
Holding: ¶4 We view this case as falling within the right-to-counsel exception to the general rule against collateral attacks on prior convictions. We hold that Peters may, in the context of this prosecution for fifth offense OAR, collaterally challenge his second OAR conviction, because the no contest plea upon which it was based was entered without counsel. We do not address the defendant's challenge to the constitutionality of closed-circuit television guilty or no contest pleas. We reverse and remand for consideration of whether Peters knowingly and voluntarily waived his right to counsel before pleading no contest to second offense OAR.Enhancers - Jail as Condition of Probation Tolling Time Limit for Repeater |
| State v. Todd E. Crider, 2000 WI App 84, 234 Wis. 2d 195, 610 N.W.2d 198 |
| For Crider: Suzanne L. Hagopian, SPD, Madison Appellate |
| Issue: Whether jail time spent as a condition of probation qualifies as "actual confinement serving a criminal sentence," so as to extend the § 939.62(2) 5-year period within which a prior conviction must fall to support a repeater enhancement. |
| Holding: Though time served as a condition of probation is generally not a "sentence," the relationship between the two is ambiguous and, given the purpose of the repeater act, along with a defendant's entitlement to sentence credit for time spent in jail as condition of probation, it would be anomalous not to regard probation-confinement as tolling the repeater act time limit. |
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| Enhancer – Construction - Prior Conviction Presumptively Elemental |
| State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42 |
| For Warbelton: Paul G. LaZotte, SPD, Madison Appellate |
Issue/Holding:
¶21 …. The legislature has the authority to designate a prior conviction as a penalty enhancer rather than an element of the offense. Almendarez-Torres, 523 U.S. at 246. Although the legislature is permitted to designate a prior conviction as a penalty enhancer, it does not follow that the legislature is forbidden from designating a prior conviction as an element. [9] Unless otherwise designated by the legislature, a fact relevant to conviction is presumed to be an essential element of a crime. [10]In short: “Determining whether a fact is an element or a penalty enhancer is an exercise in statutory interpretation,” ¶22. Of course, this potentially means review of extrinsic sources as well as the statutory text, but in view of the presumption the court has just announced, you’d think that there must be expressly declared intent to make the “fact” an enhancer, else by default it’s an element. While the outcome is adverse to the immediate litigant, Warbelton, to some extent it is simply a response to Apprendi-related caselaw developments, which the court usefully generalizes as: “a fact must be submitted to a jury and proven beyond a reasonable doubt if it increases the potential penalty for a crime beyond the penalty which could otherwise be imposed,” ¶20. Presuming that a penalty-increasing “fact” is an “element” greatly reduces the chances of Apprendi-type error, because it greatly increases the odds that the fact will indeed be submitted to the jury. That said, when it gets around to scrutinizing the statute, the court hardly relies on the presumption (indeed, doesn’t so much as mention it), but instead undertakes detailed analysis of both legislative history as well as text of the stalking legislation, ¶¶26-40. Interesting discussion, in U.S. v. O'Brien, 1st Cir No. 07-2312, 9/23/08, on "this new algorithm," noting as a comlplicating feature: "Congress in enacting complex criminal statutes rarely considers explicitly whether some designated fact should be deemed an element or a sentencing factor--a distinction, after all, primarily of concern to courts in administering the statutes." And doesn't that distinction reinforce the Warbelton presumption? |
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| Enhancers -- Multiple Enhancers -- §§ 346.65(2), 939.62 |
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State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision For Delaney: Joseph R. Cincotta Issue/Holding: ¶1 … Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62(1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney's penalty twice for count one of his judgment of conviction. We answer in the affirmative, and conclude that a defendant convicted of the crime of second-or subsequent-offense OWI, as Delaney has been, is subject to the penalty enhancements provided for in both §§ 346.65(2) and 939.62, so long as the application of each enhancer is based on a separate and distinct prior conviction or convictions.(§ 939.62(3) specifically excludes from the definition of “felony” and “misdemeanor” all “motor vehicle offenses under chs. 341 to 349.” The court construes this to plainly mean that OWI – a motor vehicle offense -- is plainly a crime subject to § 939.62, while at the same time prior OWIs (or other traffic offenses) may not themselves serve as enhancers. ¶20. Bottom line: OWI may be enhanced, but can’t be a § 939.62 enhancer. Who knew? And, State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992) limited to its facts, namely: no multiple enhancement only where “the predicate offense is for the same conviction.” ¶¶30-34.) |
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| Enhancers -- Multiple Enhancers -- §§ 939.62(1)(b), 961.48(2) |
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State v. Paul R. Maxey, 2003
WI App 94 ¶14. In summary, the law of Wis. Stat. § 939.62 as explained in Delaney is as follows. A defendant is eligible for an enhanced sentence as a habitual criminal if: (1) the present conviction is for any crime allowing for imprisonment except escape or a failure to report; and (2) the prior conviction is for any felony or misdemeanor except motor vehicle offenses and offenses prosecuted in the juvenile court.
¶15. The allegations of the information in this case clearly qualify Maxey as eligible for penalty enhancement under this law. The information alleges that Maxey possessed a controlled substance and the statute provides for imprisonment as a possible penalty, thus satisfying the "any crime" and "imprisonment" requirements of Wis. Stat. § 939.62(1). In addition, Maxey's prior convictions are adult drug related offenses, not motor vehicle or juvenile offenses, thus satisfying the prior conviction requirements of § 939.62(1)(b) and (3)(a). Indeed, we do not read Maxey to dispute that he facially qualifies for an enhanced penalty under § 939.62. (State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992) again limited to its facts, namely a single prior drug-related conviction. ¶¶19-20. Where there are two priors, one may be used to support the general repeater, and the other the drug enhancement. ¶21. Note that § 961.48(2) (1999-2000) was repealed as part of the Truth-in-Sentencing overhaul, see ¶ 2 n. 3.) |
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| Enhancers -- Multiple Enhancers -- Computation of Maximum |
| State v. Paul Delao Quiroz, 2002 WI App 52 |
| For Quiroz: Chad G. Kerkman |
| Issue: Whether the maximum penalty for first-degree reckless endangerment of safety, enhanced by while armed and gang-related provisions, was 13 or 14 years. |
Holding: ¶13 ... [State v. Pernell, 165 Wis. 2d 651, 656, 478 N.W.2d 297 (Ct. App. 1991)] establishes that when two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer.(Note: OK, but how do you determine which is the “first” enhancer? The court simply doesn’t say. And Pernell is less than helpful on this point. Apparently, by “first” the court simply means whatever order of computation generates the greater maximum. Moreover, this is all dicta, because the court goes on to say that the exact maximum had no impact on the real issue, which is plea-withdrawal due to asserted incorrect advice about the maximum. ¶¶16-17.) |
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| Sentencing Enhancers – § 346.65(2), OWI – Out-of-State Administrative Non-Refusal (“Zero Tolerance”) Suspension Doesn’t Qualify |
| State v. Gerard W. Carter, 2009 WI App 156, (AG’s) PFR filed 10/30/09 |
| For Carter: Craig M. Kuhary |
| Issue/Holding: Illinois “zero tolerance” suspensions don’t count as § 343.307 prior convictions and therefore can’t support sentencing enhancement under § 346.65(2). |
The court
reviews
Illinois caselaw and
concludes that a “zero tolerance” suspension is purely administrative. Analysis
is therefore “guided” by the
State
v. Daniel J. Machgan, 2007 WI App 263 holding that an
out-of-state administrative suspension which is not the result of a refusal
isn’t counted as a “conviction” for purposes of OWI enhancement. If the foreign
suspension is based on a “refusal” then it would qualify for enhancement under §
343.307(1)(e)—the State argues that the court should “infer” that the
suspensions indeed were for refusals, but the court (despite acknowledging that
the “suspension seem to fall more in line with a refusal,” ¶13
n. 5), refuses to do so:
¶12 … The document attached to the amended criminal complaint, identified as a “teletype” from the “T.I.M.E. interpolice agency reporting system” does not identify the reason for the suspension, indicating only “zero tolerance suspension.” Nor do the suspension lengths comport with the Illinois refusal penalties. [5] The document simply does not provide sufficient information to conclude that the suspension was the result of a refusal, especially given that Carter disputes this assertion. |
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| Enhancers - § 346.65(2), OWI - Proof (and Apprendi) |
| State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05 |
| For Matke: James B. Connell |
Issue/Holding:
¶16. Matke also contends that the trial court's interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to convince a jury beyond a reasonable doubt that he had five prior OMVWI convictions. Matke claims that the U.S. Supreme Court so held in Apprendi v. New Jersey, 530 U.S. 466 (2000). Matke is again mistaken. The Court specifically excluded sentence enhancements for prior convictions from its holding in Apprendi: " Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490 (italic emphasis added).7Apprendi fever: Catch it (here)! |
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| Enhancer – Apprendi Right to Jury Trial & 5-Year Limitation Period |
| State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116 |
| For LaCount: T. Christopher Kelly |
| Issue: Whether, on a § 939.62(2) “prior-conviction” penalty enhancer, the defendant is entitled to jury resolution that the conviction was in fact within 5 years of commission of the present offense. |
Holding:
¶52 ... (W)hen Shepard and Apprendi are read together, a trial court judge, rather than a jury, is allowed to determine the applicability of a defendant's prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record.Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) says: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The rationale it offers for this "prior-conviction exception" is: “Both the certainty that procedural safeguards attached to any ‘fact’ of prior conviction … mitigate[] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” That's fine, but § 939.62 requires that the qualifying conviction have occurred “during the 5-year period immediately preceding the commission of the [current] crime”; as for LaCount, his prior was from 11/12/93, and the current offense was around March or April of 1999. He might qualify as an habitual criminal, but only under the tolling provision of § 939.62(2) (“time which the actor spent in actual confinement serving a criminal sentence shall be excluded”). Why isn't that tolling precisely the sort of factual question that exists outside the procedural niceties attending the conviction itself; and, therefore, outside the rationale for the prior-conviction exception? The court doesn't quite say, not convincingly in any event. Nonetheless, it certainly appears that the prior-conviction exception is now thoroughly entrenched. For whatever it's worth the court of appeals' discussion is no more convincing: ¶29 Apprendi requires any fact other than the fact of a conviction which enhances a penalty beyond the prescribed statutory maximum to be submitted to the jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. However, the Supreme Court in Shepard v. United States, 544 U.S. 13 (2005), appears to have relaxed Apprendi’s holding. In Shepard, the Supreme Court held:This analysis, too, involves a certain amount of question-begging. All the certified copy of the JOC established was when and for how long LaCount was sentenced. What happened after that is a “known unknown.” Did LaCount obtain sentence commutation or reduction, or some sort of early or emergency release? The odds against any such possibility are quite daunting, to be sure, but that’s not the point: the court document reflects only what happened to point of filing, not afterward; it’s what happened afterward that determined sentencing exposure.[T]o determine whether a [prior] plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense [to be used for sentence enhancement] is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.Id. at 26. We agree with the State that when read together, Shepard and Apprendi suggest that a court, rather than a jury, may determine the applicability of a prior conviction for sentence enhancement where the applicability of the prior conviction is readily determined on the existing judicial record. Id. As to the prior-conviction exception itself, see James v. U.S., 05-9264, 4/18/07: Finally, James argues that construing attempted burglary as a violent felony raises Sixth Amendment issues under Apprendi v. New Jersey, 530 U. S. 466 (2000), and its progeny because it is based on “judicial fact finding” about the risk presented by “the acts that underlie ‘most’ convictions for attempted burglary.” Brief for Petitioner 34, 35. This argument is without merit. |
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| Enhancer -- § 939.63, Dangerous Weapon Enhancer -- Nexus to Predicate Offense |
| State v. John W. Page, 2000 WI App 267, 240 Wis.2d 276, 622 N.W.2d 285 |
| For Page: William E. Schmaal, SPD, Madison Appellate |
| Issue: Whether possession of dangerous weapon enhancer, § 939.63, requires actual use or threat to use the weapon while committing the enhanced offense. |
Holding: Under the correct reading of [State v.] Peete [,185 Wis. 2d 4, 517 N.W.2d 149 (1994)], if the evidence is such that a reasonable jury may find beyond a reasonable doubt that the defendant possessed a dangerous weapon in order to use it or threaten to use it should that become necessary, the evidence is sufficient under § 939.63 even if the defendant did not actually use or threaten to use the weapon in the commission of the crime.See U.S. v. Stallings, 11th Cir. No. 03-11905, 9/7/06: Although “‘[e]xperience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade,’” United States v. Alvarez, 755 F.2d 830, 849 (11th Cir. 1985) (citing United States v. Perez, 648 F.2d 219, 224 (5th Cir. Unit B 1981)), the mere fact that a drug offender possesses a firearm does not necessarily give rise to the firearms enhancement. The government must show some nexus beyond mere possession between the firearms and the drug crime. See, e.g., Timmons, 283 F.3d at 1251 (noting that the “‘in relation to’ language ‘allay[s] explicitly the concern that a person could be’ punished under § 924(c)(1) for committing a drug trafficking offense ‘while in possession of a firearm’ even though the firearm’s presence is coincidental or entirely ‘unrelated’ to the crime” (citing Smith v. United States, 508 U.S. 223, 238 (1993))); United States v. Siebe, 58 F.3d 161, 162–63 (5th Cir. 1995) (concluding that a firearms enhancement was not justified because, although police found ninety firearms in the defendant’s home, they found no evidence there of drug paraphernalia or drug trafficking activities); United States v. Salery, 119 F. Supp. 2d 1268, 1275 (M.D. Ala. 2000) (synthesizing cases and concluding that the government must prove that the weapon was found in the same location as the drugs or that the weapon was part of conduct involved in a drug transaction).Go To Brief |
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| Enhancers -- § 939.632, School Zone -- Constitutionality |
| State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29 |
| For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner |
Issue/Holding: ¶81 We conclude that the school zone penalty enhancer is not unconstitutional as applied to Quintana. The legislature has sought to increase the penalty for those who commit violent crimes within 1,000 feet of "school premises." Under Wis. Stat. § 939.632, the crime of mayhem is specifically included in the definition of "Violent Crime." Violent crime also includes a number of other crimes, such as homicide, battery, sexual assault, kidnapping, arson, intimidation of a witness, robbery by use of a dangerous weapon, child enticement, sexual exploitation of a child, and soliciting a child for prostitution.Don't forget, the State must still bear a burden of proof, however minimal -- see, e.g., State v. Conklin, Or App No. A127226, 7/11/07. |
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| Enhancer -- § 940.03, Felony-Murder (1999-2000) |
| State v. Brandon L. Mason, 2004 WI App 176 |
| For Dawson: Ellen Henak, SPD, Milwaukee Appellate |
Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter that defines substantive offenses; and it incorporates the elements of offenses located elsewhere), ¶16, hence is ambiguous. Legislative history shows intent to create a stand-alone crime:
¶20 Therefore, we are persuaded that the legislature believed it was addressing a stand-alone crime, not a penalty enhancer. To summarize, the legislature at one time designated felony murder as a Class B felony, thus eliminating the primary reason the State now contends felony murder is a penalty enhancer: its add-on penalty structure. Further, in fixing unrelated problems, the legislature considered retaining the designated felony approach by making felony murder a Class A felony. We think it apparent that if the legislature thought it was dealing with a penalty enhancer, some part of the debate would reflect the need to return to an add-on penalty structure so as to restore the statute to penalty-enhancer status. However, we find no indication that this was part of the debate. Rather, the legislature returned to the old penalty language for reasons unrelated to whether the statute was thought to be a penalty enhancer.As the court explains, ¶¶6-10, this makes a difference because of interaction between the enhancer rule and the “75%” rule for computing confinement time. The long and short of it is that, as a stand-alone unclassified crime, § 940.03 (1999-2000) carries a maximum initial confinement term of 37 years 6 months, but if deemed a penalty enhancer this term would be 40 years. And, as the court also points out, ¶10 n. 2, the penalty has since been changed so that the current IC max is 26 years 3 months. |
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| Sentencing Enhancers – Particular Statutes: Crimes: Stalking, Having Prior Conviction for Violence, §§ 940.32(2) & (2m)(a) -- Prior Conviction Is Element, not Penalty Enhancer |
| State v. Jeffrey A. Warbelton, 2008 WI App 42, PFR filed 3/20/08 |
| For Warbelton: Paul G. Lazotte, SPD, Madison Appellate |
Issue/Holding:
Prior conviction
for a violent crime is element, not penalty enhancer, of stalking, §§ 940.32(2)
& (2m)(a):
¶15 First, we reject Warbelton’s argument that his prior conviction is not an element of the stalking offense of which he was convicted, i.e., the Class H felony set out in Wis. Stat. § 940.32(2m)(a). We are not persuaded by Warbelton’s claim that his prior conviction “is akin to the penalty enhancers for being a ‘repeater’ or ‘persistent repeater’ under Wis. Stat. § 939.62.” [3] He likens § 940.32(2m)(a) to § 939.62, which addresses increased penalties for habitual criminality, and asserts that the otherwise-available maximum sentence for the underlying substantive crime in both statutes is increased due to the perpetrator’s prior record, rather than any action that is part of the new criminal activity, such as using a dangerous weapon within the meaning of Wis. Stat. § 939.63 [4] or § 940.32(3)(c). …The court goes on (¶¶20-24) to suggest the holding is ordained by State v. Calvin E. Gibson, 2000 WI App 207 (“§ 941.29(2m) (1997-98), the ‘second offense felon in possession’ statute, creates its own separate offense. [I]t is a separate crime and not a penalty enhancer[.]”). Oddly, at least at first blush, the court fails to discuss the OWI scheme, which it has gone to great lengths to say makes prior convictions enhancers not elements – e.g., State v. Brandon J. Matke, 2005 WI App 4. Why there and not here? In the court's view, apparently, the decision is purely a legislative one ("determining the elements of an offense are not a matter of constitutional law, but rather a matter of legislative mandate," ¶18); the court's answer, then, is probably that if the legislature wants to arbitrarily structure these crimes that's its call, not the judiciary's. What, though, are the guideposts for determining such legislative intent? As the block quote above suggests, the court seems to suggest that if the aggravating fact relates purely to a "status-type" factor then it is likely an enhancer. Same if the aggravating factor affords mere discretion to increase the penalty. |
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| Enhancer -- § 941.29(2m), 2nd-Offense Felon in Possession, Supports Repeater |
| State v. Calvin E. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248 |
| For Gibson: Margaret A. Maroney, SPD, Madison Appellate |
Issue/Holding: ¶1. The question presented is whether the habitual criminality enhancer may be applied to a conviction for a second offense felony of firearm possession. Calvin E. Gibson, who was convicted of being a felon in possession of a firearm, second offense, with a repeater enhancer, argues that the application of both the criminal and repeater statutes is "double enhancement," which this court prohibited in State v. Ray, 166 Wis. 2d 855, 873, 481 N.W.2d 288 (Ct. App. 1992). We hold that Wis. Stat. § 941.29(2m) (1997-98), the "second offense felon in possession" statute, creates its own separate offense. Because it is a separate crime and not a penalty enhancer, it will support the application of the habitual criminality statute. We affirm.Analysis: Ray says you can't apply multiple repeater enhancers to the same substantive offense (at least where “the predicate offense is for the same conviction,” see discussion above). The question, then, is whether 2d-offense felon-in-possession is in the nature of a repeater for felon-in-possession (so as to preclude application of habitual criminality), or whether it's a substantive offense in its own right. The wording of the section -- "whoever violates ... is guilty of a Class D felony" may seem to support the latter construction, but even so, a prior conviction raises a prototypical sentence-enhancement issue, as suggested by Apprendi v. N.J., 147 L.Ed.2d 443 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Gibson, by saying that the traditional sort of enhancer (prior conviction) may be regarded as an element, not a mere enhancer, seems to invert Apprendi. The wording of the statute ("is guilty of") might support the holding, but a contrary result on similar language was reached in State v. Morris, 108 Wis.2d 282, 322 N.W.2d 264 (1982), which isn't discussed. The line between element and enhancer remains fuzzy, though Apprendi provides some guidance. |
| Go To Brief |
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| Enhancer -- § 161.48(2) (1993-94), Drug Offender -- Second or Subsequent Offense |
| State v. Frank Miles, 221 Wis. 2d 56, 584 N.W.2d 703 (Ct. App. 1998) |
| For Miles: Craig W. Albee |
Issue/Holding: Prior drug conviction is not element of crime of second or subsequent drug offense, § 161.48(2) (1993-94), which elevates what would otherwise be misdemeanor to felony possession: Miles fails to recognize the distinction between the two types of penalty enhancers. The first type of penalty enhancer concerns facts or circumstances related to the underlying crime which alter the substantive nature of the charged offense. ...(Nor, the court goes on to hold, does the due process clause require such proof.) |
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| Enhancer -- § 961.48(3), Drug Offender -- Prior for Paraphernalia |
| State v. Dawn C. Moline, 229 Wis. 2d 38, 598 N.W.2d 929 (Ct. App. 1999) |
| For Moline: Patrick M. Donnelly, SPD, Madison Appellate. |
Issue/Holding:By this decision, we hold that a prior conviction for possessing drug paraphernalia pursuant to § 961.573, STATS., qualifies as a prior offense under the repeat drug offender statute, § 961.48(3), STATS. ... The statute is meant to include all prior convictions, either under ch. 948, STATS., the federal statutes or any other state statute that are 'related to' controlled substances and the like. A drug paraphernalia offense is an offense 'related to' controlled substances. ... |
| Go To Brief |
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| Enhancers -- § 961.49, Youth Center |
| Debra L. Van Riper, 222 Wis. 2d 197, 586 N.W.2d 198 (Ct. App. 1998) |
| For Van Riper: Megan L. DeVore |
Issue/Holding: Because day care centers provide recreational and social services activities for children, they are a subset of "youth centers" and come within the definition of places listed in § 961.49(2), Stats. The protection of children, who congregate at day care centers, and are very vulnerable to the dangers associated with drug trafficking, is furthered by the plain meaning of the statute, thereby confirming our construction of the language chosen by the legislature. |
| Enhancers, § 939.62(2m)(b)2 – Not Cruel and Unusual Punishment |
| State v. Michael D. Lewis, 2004 WI App 211 |
| For Lewis: Timothy A. Provis |
| Issue/Holding: Sentence of life imprisonment without possibility of parole, as persistent repeater due to prior conviction for sexual assault of a child, on a current conviction for child enticement isn’t cruel / unusual punishment under the 8th amendment. ¶¶16-18. |
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Enhancer -- § 939.62(2m)(a), Persistent Repeater -- Validity – Due Process State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146 For Radke: William E. Schmaal, SPD, Madison Appellate Issue/Holding: ¶5. The precise question raised, therefore, is whether the "two strikes" law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense....Note that the court rejects on the merits Radke’s argument, not his methodology. The court, that is, cites with approval State v. Asfoor, 74 Wis. 2d 411, 249 N.W.2d 529 (1977) as “addressing a constitutional challenge to a statute based on its relationship to another statute.” ¶5 n. 5. The court does reject the broad “proposition that it is always irrational to make a non-fatal crime of a certain type of culpable conduct punishable by a more serious penalty than a crime of the same type of culpable conduct that results in death.” ¶33. But that shouldn’t detract from higher principle that sentencing-scheme disparities are subject to analytical scrutiny. Asfoor, interestingly, involved an equal protection challenge; it’s now in effect been extended to substantive due process. The court goes on to engage in a lengthy analysis that acknowledges the “first blush” strength of Radke’s position; “further analysis” shows that the asymmetry between 1st- and 2nd- strike enhancers is rational. ¶19. In other words, the holding may be relatively limited, as suggested in the concluding paragraph: ¶36. For the reasons set forth above, we conclude that the legislature’s interest in protecting the public from child sexual assault offenders, a particular subset of offenders with a perceived high rate of recidivism who victimize an especially vulnerable segment of the population, makes it rational for the legislature to impose a greater penalty on an offender convicted of a second Class B non-fatal child sexual assault than on an offender convicted of a second Class A felony homicide offense. We therefore hold that the defendant’s constitutional challenge to the “two strikes” law fails.The court's analysis also effectively rejects an equal protection argument, albeit under the rubric of substantive due process. And, for whatever it’s worth, this is a pre-TIS case. Life without parole under three-strikes provision, § 939.62(2m)(b) (1993-94), upheld against cruel-and-unusual, due process, and equal protection arguments, in State v. James C. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996). |
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| Enhancer - § 939.62(2m)(d), Persistent Offender - "Prior" Strike |
| State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion |
| For Long: Joseph L. Sommers |
| Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1st strike’s conviction date precede the 2nd strike’s violation date. Although Long’s two prior strikes occurred before the current felony, neither of these convictions occurred prior to the other’s violation date and his sentence as a persistent repeater must be vacated. The remedy is resentencing, ¶¶33-45. |
On remand,
the circuit court may allow the
State to amend the complaint and substitute other prior convictions as the basis
for persistent repeater enhancement, ¶¶46-54. The supreme court apparently
leaves this to trial court discretion under the 2-part test of
State
v. Jamale A. Bonds, 2006 WI 83 (defendant must have notice
charged with enhancer, and must not be “prejudiced in making an intelligent plea
as a result of the” post hoc amendment). This is what we like to call a test
without any teeth. Notice is a given, and good luck showing prejudice. But then
the fun really begins: just how does the judge determine whether a prior
conviction, especially if foreign, qualifies as strike? Not really a problem
where the priors are Wisconsin-based, as enumerated in § 939.62(2m)(a)1m.a., but
foreign convictions, as in Long’s instance, must be “comparable”: how can you
tell? In several glancing paragraphs the court recognizes this to be a
potentially daunting, constitutional fraught, exercise, ¶¶56-59, and cites
Shepard v. United
States, 544 U.S. 13, 26
(2005) and Taylor v.
United States, 495 U.S. 575, 601
(1990), for the idea
that a judge's inquiry into the nature of a previous offense “is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”Shepard, it should be noted, is an “opaque work” whose implications are quite unclear. Convicted of federal felon-in-possession, 18 USC § 922(g)(1), and coming under the Armed Career Criminal Act enhancement provision, 18 USC § 924(e) (enhanced sentence if 3 priors for violent felonies or drug offenses), Shepard disputed whether one of his felony priors was “violent,” within the meaning of the Act. The issue therefore became how the nature of the prior conviction might be satisfied. (Caveat: the prior was not necessarily “violent” as defined by the ACCA, given the elements of the offense; if it had been, you’d have a different situation.) The Court previously held that where the prior conviction was obtained after jury trial you can look to “statutory elements, charging documents, and jury instructions” to see if the enhancement requirement is satisfied. But for a plea-based prior such as Shepard’s, the sentencing court may not look at extrajudicial documents such as “police reports or complaint applications,” and instead “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Although the Court was engaged in what it termed “an issue of statutory interpretation” of a federal scheme, the Court’s construction was explicitly devised “to avoid serious risks of unconstitutionality,” which is to say Apprendi’s general guarantee of jury resolution of disputed facts enhancing the sentence beyond the statutory maximum. More particularly, the Court perceived that, “While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that [the prior-conviction exception] clearly authorizes a judge to resolve the dispute. … [and] therefore counsels us to limit the scope of judicial factfinding on the dispute[.]” (By “prior conviction exception” is simply meant that repeater-type enhancement may be decided by the judge without jury involvement.) You can see from this just why the decision is “opaque”: either there is or there isn’t a jury trial right to resolve the dispute; limiting the search to truffles doesn’t really solve the problem of who’s on the hunt, does it? With that in mind, Wisconsin caselaw does not appear, at least under the facts, inconsistent with Shepard – State v. Leonard T. Collins, 2002 WI App 177, ¶¶23-24 (may look to facts in charging document); State v. Charles J. Burroughs, 2002 WI App 18, ¶¶25-27 (look to elements, as interpreted by caselaw of that jurisdiction). And now Long, which for better or worse simply recognizes the difficulty of the enterprise without really adding to our understanding of it. The point is that Shepard inhibits a sentencing court from going much if at all beyond such efforts to determine the nature of the foreign prior. |
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Enhancer -
§ 939.62(2m)(d), Persistent Offender --
Comparable Crime, Foreign Conviction - Determination State v. Leonard T. Collins, 2002 WI App 177 For Collins: Paul G. LaZotte, SPD, Madison Appellate Issue/Holding: ¶2. We agree with Collins that Wis. Stat. § 939.62(2m)(d) requires circuit courts to determine independently whether an out-of-state crime is comparable to a Wisconsin "serious felony," even if the defendant admits that he or she is a persistent repeater. However, because we can conclude as a matter of law that "second degree murder" in Illinois would be a "serious felony" if committed in Wisconsin, we affirm.Note: Collins, during a no contest plea, admitted that he'd been convicted of "second degree murder" in Illinois. Because this was an out-of-state conviction, his admission is not sufficient to establish persistent repeater status, because the court must still make a "comparability" determination: ¶13. Even if a defendant "admits" that his or her violation is "comparable," this does not relieve the circuit court of its obligation to make an independent determination. Whether a crime in another state would be a "serious felony" if committed in Wisconsin is a legal, not a factual question. See State v. Burroughs, 2002 WI App 18, ¶¶ 23-27, 250 Wis. 2d 180, 640 N.W.2d 190 (treating the circuit court's conclusion regarding "comparability" of Alabama conviction for "assault with attempt to murder" to Wisconsin's crime against attempted first-degree intentional homicide as a question of law). Courts are generally not bound by a party's concession on issues of law. State v. Kruzycki, 192 Wis. 2d 509, 517, 531 N.W.2d 429 (Ct. App. 1995) (stating that a question of law "cannot be bargained away"). Rather, Wis. Stat. § 939.62(2m)(d) expressly requires a court to independently determine if an out-of-state conviction qualifies as a "serious felony." This provision does not permit courts to assume that a crime committed in another state would be a "serious felony" if committed in Wisconsin.This doesn't turn out to be much of a hurdle. The court of appeals determines that it has the authority to make the comparability determination, stressing both that Collins admitted the conviction, and also that comparability to a Wisconsin serious felony is a question of law. Though the court doesn't go into it, it's not hard to imagine instances where the inquiry is fact-bound; because the court of appeals doesn't have constitutional authority to resolve disputed questions of fact, it shouldn't in such cases be able to undertake this sort of inquiry. The court does, though, exhort sentencing courts to carefully explore the underlying facts of a foreign conviction. ¶¶23-24. |
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The subsequently decided Shepard v. U.S., 03-9168, 3/7/05 (re: parallel federal legislation, Armed Criminal Career Act), should be consulted where there is a dispute as to nature of prior conviction(s), for its suggestion that at least in some instances the prior-conviction exception does not apply, and the defendant is entitled to jury resolution of the dispute. See, e.g., U.S. v. Ngo, 7th Cir No. 04-2662, 5/3/05 ("This
language suggests that the recidivism exception exempts
only those findings traceable to a prior judicial record of
'conclusive significance.' Otherwise, Sixth Amendment concerns
arise."). However, see the post-Shepard, ACCA decision in U.S. v. Moore, 10th Cir No. 04-8078, 3/23/05, to the effect that,
"It is a question of law whether a felony meets the statutory definition of a "violent felony," and such a question does not trigger the Sixth Amendment concerns addressed in Booker"; People v. McGee, Cal SCt No. S123474, 5/22/06 (to same effect -- albeit over strong dissent).
For an example of a rigorous comparability analysis, see People v. McGee,
Cal SCt No. S126233, 8/10/06.
On a different point, other states may treat a diversion program based on a guilty plea in a foreign state as a "conviction" for strike purposes, notwithstanding the lack of formal judgment of conviction. E.g., People v. Laino, Cal. S. Ct. No. S103324, 4/8/04 (full-faith-and-credit clause doesn't require that Calfornia give full effect to Arizona judgment of dismissal; California instead may treat guilty plea as prior "conviction" for purpose of three strikes law). |
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| Enhancers -- § 939.62(2m), Persistent Offender -- Comparable Crime, Foreign Conviction |
| State v. Charles J. Burroughs, 2002 WI App 18 |
| For Burroughs: William F. Mross |
| Issue/Holding: Burroughs' prior conviction in Alabama for assault with intent to murder is sufficiently comparable to attempted first degree intentional homicide so as to support exposure to persistent offender sentencing, § 939.62(2m)(c). ¶¶23-27. |
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| Enhancers -- Persistent Offender -- §§ 939.62(2m)(a)1m, (b)2 and (c) -- Comparable Prior, Since-Repealed Statute: Child Sexual Assault, § 940.225(1)(d) (1977-78)
State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03 For Wield: Donald T. Lang, SPD, Madison Appellate Issue/Holding: In determining whether a prior conviction under a since-repealed statute is a serious child sex offense comparable to § 948.02(1) so as to invoke the persistent repeater law, the “elements only” test of Blockburger v. United States, 284 U.S. 299 (1932) doesn't apply: “Thus, we are entitled to consider whether Wield's conduct which produced the prior convictions would be a ‘serious child sex offense’ if performed under the current statute. If Wield's conduct would have been a serious child sex offense under the current statute, ‘then the court need not even consider the elements of the crime’ under the former statute governing the prior conviction.” ¶18. Analysis for foreign convictions, State v. Collins, 2002 WI App 177, ¶23, 256 Wis. 2d 697, 649 N.W.2d 325 adopted. Conviction for child sexual assault, § 940.225(1)(d) (1977-78), satisfies the test: ¶19. Looking to the facts of Wield's prior convictions, it is readily apparent that the conduct underlying those convictions would constitute a "serious child sex offense" under the current statute. The 1977 offense was based on a complaint that Wield had "fondled and squeezed the testicles and penis of the male juvenile through his underwear." The 1978 offense was based on a complaint that Wield had "sucked on and fondled" the genitals of an eight-year-old boy. Pursuant to Wis. Stat. § 939.62(2m)(d), the trial court expressly found beyond a reasonable doubt that, if committed today, Wield's prior conduct in 1978 would fall under the current definition of "sexual contact" in Wis. Stat. § 948.01(5)(a) ("Intentional touching by the ... defendant, either directly or through clothing by the use of any body part ... of the complainant's ... intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant."). The correctness of the trial court's holding is beyond dispute, and it follows that the two statutes in question are comparable as required by § 939.62(2m)(a)1m.b. As such, the trial court properly applied the "persistent repeater" provision pursuant to § 939.62(2m)(c). |
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| Enhancer --
§ 939.62(2m), Persistent Repeater -- Validity -- Due Process State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03 For Wield: Donald T. Lang, SPD, Madison Appellate Issue/Holding: The persistent repeater law, § 939.62(2m) is constitutional; State v. Radke, 2003 WI 7, 259 Wis. 2d 13, 657 N.W.2d 66, controls. ¶¶20-21. |
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| Enhancer -- § 939.62(2m)(d), Persistent Offender -- Life Without Parole -- Cruel and Unusual Punishment |
| State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, on certification. |
| For Hahn: Steven G. Bauer |
| Issue: "(W)hether the persistent repeater penalty enhancer as applied to the defendant violates the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment." ¶5. |
| Holding: Imposing a life sentence without possibility of parole, after three or more convictions for serious felonies, is not grossly disproportionate punishment, and therefore doesn't violate the 8th amendment. |
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| Enhancer -- Persistent Repeater, § 939.62(2m)(b) -- Equal Protection Challenge |
| State v. Damone J. Block, 222 Wis. 2d 586, 587 N.W.2d 914 (Ct. App. 1998) |
| For Block: James M. Weber |
| Issue/Holding: The persistent repeater scheme survives equal protection challenge. |
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| Enhancer -- TIS-I |
| State v. Kent Kleven, 2005 WI App 66 |
| For Kleven: Roberta A. Heckes |
| Issue/Holding: Where sentencing includes multiple enhancers, the court may identify the amount of confinement attributable to each enhancer, without violating the rule that an enhancer doesn’t support a separate sentence. ¶¶16-18. (The court adds, however, ¶18 n. 4, that the “better practice” is to avoid “allocating any portions of the confinement imposed among the base offense and enhancers.”) |
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| Enhancer -- TIS-I |
| State v. Kent Kleven, 2005 WI App 66 |
| For Kleven: Roberta A. Heckes |
| Issue/Holding: Maximum confinement for TIS-I attempt to commit a classified felony is one-half the maximum confinement for the completed crime, ¶21, and the sentencing court’s error in exceeding the permissible maximum requires resentencing (given, at least, the availability of the same result), ¶¶28-31. (That is, with the enhancers at the court’s disposal, the court could properly impose the same amount of confinement time as it did originally.) |
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| Enhancer -- TIS-I |
| State v. Kent Kleven, 2005 WI App 66 |
| For Kleven: Roberta A. Heckes |
|
Issue: How is sentencing
structure determined for an unclassified, enhanced TIS-I
felony? Holding: In order to reconcile various conflicting possibilities, the maximum sentence on an enhanced, unclassified TIS-I felony is limited by the rule that the maximum amount of ES is 25% of the base offense. ¶¶26-27. Best to plug in the numbers to illustrate. Kleven faced five years on attempt, which meant a max confinement of 2.5 years, ¶21. He also faced a total of 10 more years on enhancers, which are allocated only to confinement, not supervision, ¶24. That makes a theoretical total of 12.5 years confinement on an overall max of 15. However, confinement can’t exceed 75% of overall max, so that would be 15 x 75% == 11.25 years confinement max (¶23). So far, so good, but now another rule kicks in: ES must be at least 25% of confinement, § 973.01(2)(d), and that rule couldn’t be satisfied in this instance for any confinement over 10 years, ¶26. (Because, of course, after that point ES would necessarily be less than 25% of confinement, given that this ES max is 2.5.) Something’s got to give, and apparently reducing the overall max is the path of least resistance: add up the potential confinement time (here, as noted, 11.25); and then add to that the base offense ES max (2.5)—voila: “We thus conclude that the maximum sentence Kleven faced for his enhanced offense was 13.75 years of imprisonment, with not more than 11.25 years' confinement and not more than 2.5 years of extended supervision,” ¶28. Ah, closer … but still in violation of the 25% rule; close enough, apparently. As long as you’re purporting to apply a rule of lenity, why not put teeth in the 25% rule and reduce the confinement max to 10 years? |
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| Enhancer -- TIS-I – Calculation (Unclassified Felony) |
| State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals |
| For Jackson: Joseph E. Schubert |
Issue/Holding:¶42 Applying the rule of lenity, we conclude that Wis. Stat. § 973.01(2)(b)6 should be read together with Wis. Stat. § 973.01(2)(c) in calculation of the maximum term of confinement for unclassified felonies with penalty enhancers under TIS-I. We apply the 75% rule of Wis. Stat. § 973.01(2)(b)6 after the penalty enhancer is added to the underlying maximum term of confinement. This addition, in turn, pursuant to the second sentence of Wis. Stat. § 973.01(2)(c), increases the total term of imprisonment by the same amount. We then apply the 75% rule to the total term of imprisonment to calculate the maximum amount of confinement for the unclassified felony with the penalty enhancer.This is a TIS-I case, and § 973.01(2)(b)6 read as follows: “For any felony other than a felony specified in subds. 1. to 5., the term of confinement in prison may not exceed 75% of the total length of the bifurcated sentence.” As the court notes, “(u)nder TIS-II, only a few unclassified felonies remain …. Therefore, the 75% rule has limited application for future cases.” ¶37 n. 8.Six year penalty enhancer (72 months)¶43 Although our determination of the maximum term of confinement for Jackson's unclassified felony is less than both the circuit court and court of appeals, our decision has no practical effect upon the sentence imposed. As the court of appeals explained, any reduction in Jackson's unclassified offense leaves his Class E concurrent sentence both unchanged and controlling. Jackson, unpublished slip op. at ¶19. |
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| Enhancer -- TIS-I – Calculation (Confinement vs. Supervision) |
| State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals |
| For Jackson: Joseph E. Schubert |
|
Issue:
Whether penalty enhancement of a
TIS-I sentence,
§ 973.01(2) (1997-98), applies to the confinement portion alone, or to the
total term of imprisonment (including extended supervision), of a bifurcated
sentence. Holding: ¶17. The key to understanding the applicability of penalty enhancers under TIS-I lies in Wis. Stat. § 973.01(2)(c), which is entitled "[p]enalty enhancement." The first sentence of the provision directs the sentencing court to add the penalty enhancer to the maximum term of confinement. The second explains the relationship between the increased term of confinement and the overall term of imprisonment. Wis. Stat. § 973.01(2)(c) states:Clear enough: penalty enhancers are allocated only to the confinement portion of a bifurcated sentence. This is a TIS-I sentence, and the court takes pains to say that it “does not address the recent changes of TIS-II.” ¶2 n. 2. That said, the crux of the matter – language in § 973.01(2)(c) – doesn’t appear any different in the TIS-II version. Also of note: as the quote above suggests, the court essentially upholds State v. Volk, 2002 WI App 274, ¶¶35-36, 258 Wis. 2d 584, 654 N.W.2d 24. Note, too, that the court relies on the legislative history contained in the Criminal Penalties Study Committee's final report, which is found at http://www.doa.state.wi.us/docs_view2.asp?docid=42. ¶¶22-24. It therefore should be consulted on matters involving TIS construction.(c) Penalty enhancement. The maximum term of confinement in prison specified in par. (b) may be increased by any applicable penalty enhancement. If the maximum term of confinement in prison specified in par. (b) is increased under this paragraph, the total length of the bifurcated sentence that may be imposed is increased by the same amount.(emphasis added). |
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Enhancer --
§ 973.01(2)(c), Bifurcated Sentence -- Application to Extended Supervision -- Remedy State v. Joseph F. Volk, 2002 WI App 274 For Volk: Charles B. Vetzner, SPD, Madison App Issue: Whether the extended supervision portion of truth-in-sentencing, § 973.01, supports repeater enhancement, § 939.62(1)(b). Holding: Because specifies that "confinement" may be enhanced, applying the principle that specification works an exclusion of non-enumerated items, the extended supervision portion of a sentence is not subject to repeater enhancement. ¶¶36-37. Moreover, legislative history ratifies that conclusion. ¶¶39-42. The remedy for unsupported enhancement is resentencing (rather than commuting the ES excess under § 973.13): "When a crucial component of such a sentence is overturned, it is proper and necessary for the sentencing court to revisit the entire question." ¶¶46-49. |
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| Enhancer -- § 973.01(2)(c), Bifurcated Sentence |
| State v. Joeval M. Jones, 2002 WI App 29, opinion ordered withdrawn, 2002 WI 53 |
| For Jones: Paul G. Lazotte |
Issue/Holding: ¶13 ... (W)e conclude that § 973.01(2) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision rather than confinement in prison.(Note: Withdrawal of the opinion by the supreme court makes this decision non-precedential.) |
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| Enhancer – Pleading – Generally State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision |
| For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate |
Issue/Holding:
¶30 When considered together, this precedent establishes the following principles:(1) The purpose of the allegations of repeater status in a charging document is to provide the defendant with sufficient notice of the potential maximum penalty he faces in order that the defendant may make an informed plea. Gerard, 189 Wis. 2d at 512 n.6.; Martin, 162 Wis. 2d at 900-01; Whitaker, 83 Wis. 2d at 373. |
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| Enhancer – Pleading – Misstating Date of Prior Convictions by One Day |
| State v. Robert J. Stynes, 2003 WI 65, reversing unpublished opinion |
| For Stynes: Patrick M. Donnelly, SPD, Madison Appellate |
| Issue: Whether the complaint’s misstatement (by one day) of the date of prior convictions in support of a repeater allegation deprived Stynes of adequate notice, contrary to § 973.12(1) and due process. |
Holding:
¶2. We conclude that the complaint provided Stynes with the required notice of the predicate convictions. Because the complaint, in referring to those convictions, described the offenses, stated the correct county where the convictions occurred, cited the case number, and misstated the date of the convictions by only one calendar day, we determine that the misstatement did not meaningfully change the basis on which Stynes entered his plea. We therefore reverse the court of appeals decision.…State v. Wilks, 165 Wis. 2d 102, 477 N.W.2d 632 (1991) (misstatement by 10 months of date of prior conviction invalidated repeater allegation) distinguished: discrepant dates much greater, ¶26; confusion as to whether Wilks prosecutor indeed meant to refer to the valid conviction, ¶¶27-28 ¶32. This case involves an error that did not affect Stynes' ability to assess meaningfully the extent of the punishment at the time he pleaded to the charges. The error of one calendar day did not mislead or confuse Stynes. The complaint provided him with a description of the offenses, the county where the convictions occurred, the case number, and a date of the convictions that was off by one calendar day. In these circumstances, the complaint provided Stynes with the information necessary to identify which of his prior convictions would be used to establish his repeater status.Quote, respecting those practices, follows from State v. Goldstein, 182 Wis. 2d 251, 261, 513 N.W.2d 631 (Ct. App. 1994). Concurrence by Chief Justice urges adoption of bright-line rule requiring pleading precision. ¶¶35, et seq. The concurrence is interesting for its stress on costs vs. benefits – traditionally the bane of defense-oriented argumentation [just think exclusionary rule] – and not just in relation to litigating the sufficiency of pleadings case by case, but also in the real underlying issue: this defendant received a 12-year sentence, enhanced from a possible two years, for behavior that was relatively minor and that will end up costing the taxpayers about $250,000. |
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| Enhancer -- Pleading -- Charge Made in Information Controls Different Repeater Allegation in Complaint |
| State v. John J. Thoms, 228 Wis. 2d 868, 599 N.W.2d 84 (Ct. App. 1999). |
| For Thoms: Steven L. Miller |
Issue/Holding: The court reverses a persistent repeater sentence,
§ 939.62(2m). Thoms was originally charged in the complaint with the standard 10-year sentence enhancement, §
939.62(1)(c)&(2), based on a prior felony theft conviction. However, the information changed the enhancement allegation to persistent offender, § 939.62(2m) - life without parole. Because the information failed to allege any prior convictions, the persistent offender allegation is, as the state concedes, defective. The issue becomes whether, given this invalidity, Thoms remains subject to the original, 10-year enhancer as alleged in the complaint. The court says no: The repeater charge in the information is an entirely separate and new charge that replaced the original repeater charge in the complaint. Thus, we hold that when the new and separate repeater charge in the information turns out to be invalid, as the State here concedes it is, the State is not entitled to look back and resurrect the charge it forsook in the complaint. The charge in the complaint no longer exists; the State abandoned it when it alleged a different repeater in the information. |
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| Enhancer -- Pleading -- Untimely Allegation, But Pursuant to Plea Bargain |
| State v. Joel O. Peterson, 2001 WI App 220, PFR filed 9/21/01 |
| For Peterson: William E. Schmaal |
| Issue: Whether the charge may be amended to include a repeater allegation, otherwise untimely under § 973.12(1), if accomplished as part of a plea bargain. |
Holding: ¶24 ... (A)llowing a defendant to agree to amend an information to add repeater allegations as part of an agreement to plead guilty or no contest is consistent with the goal of providing the defendant all the information about the potential punishment at the time he orpleads guilty or no contest. |
| Go To Brief |
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| Enhancer – Pleading – Post-Plea Amendment |
| State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision |
| For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate |
| Issue: Whether post-plea amendment of the repeater allegation to change its basis prejudiced the defendant hence was improper. |
Holding:
¶31 It is the State's burden to prove that Bonds was not prejudiced and Wis. Stat. § 973.12(1) was satisfied through notice of sufficient allegations of the basis for charging habitual criminality. Stynes, 262 Wis. 2d 335, ¶10. When we apply the principles from Stynes, Gerard, Campbell and Wilks to the facts before us, we conclude that Bonds was not prejudiced by the State's post-conviction amendment of the original allegations in the complaint on which the State based its assertion of habitual criminality. First, there is no dispute that Bonds's prior convictions made him a repeater. Second, there is no dispute that Bonds was alleged to be a repeater before he pled, in compliance with § 973.12. … Third, Bonds suffered no prejudice when at sentencing, after he was convicted by a jury, the State amended the factual basis to a felony conviction that was sufficient to satisfy Wis. Stat. § 939.62, rather than relying on the three misdemeanor convictions listed in the criminal complaint. The amendment did not prevent Bonds from meaningfully assessing the potential maximum penalty to which he could be subjected. … |
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| Enhancer – Proof: Trial (on Guilt) - “Must be withheld from jury’s knowledge” |
| State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42 |
| For Warbelton: Paul G. LaZotte, SPD, Madison Appellate |
| Issue/Holding: Evidence related to a penalty enhancer (such as a prior conviction in support of habitual criminality) is relevant only to sentence and “must be withheld from the jury’s knowledge,” ¶19, quoting Mulkovich v. State, 73 Wis. 2d 464, 468, 243 N.W.2d 198 (1976). |
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| Enhancer – Proof: Timing (“Post-Trial”) |
| State v. Shane P. Kashney, 2008 WI App 164 |
| For Kashney: Paul G. LaZotte, SPD, Madison Appellate |
| Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment). |
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| Enhancer – Proof – CCAP Entries |
| State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision |
| For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate |
| Issue: Whether CCAP entries can satisfy the State’s burden of proving a repeater allegation. |
Holding:
Although the rules of evidence do not
apply to proof of a repeater and a prior conviction need not be proved by
certification,
(¶46) a CCAP report, by its own terms, is of questionable accuracy. It is not the official record of a criminal case, as the clerks of court for each county are the officials responsible for those records. Wis. Stat. § 59.40(2)(c). And, a CCAP report is not a copy of the actual judgment of conviction. Yet, it was offered to prove, beyond a reasonable doubt, that Bonds was convicted of felony forgery on a particular date. The disclaimer with which a CCAP report is conditioned causes us to have reasonable doubt about its accuracy. |
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Enhanced Penalties -- Proof -- Uncertified Judgment of Prior Conviction State v. Patrick A. Saunders, 2002 WI 107, reversing unpublished opinion For Saunders: Beth Ermatinger Hanan Issue: Whether an uncertified copy of the prior judgment of conviction may serve as part of the proof requirement of a repeater allegation that is not personally admitted by the defendant. Holding: In the absence of the defendant's personal admission to the prior conviction(s), the state bears the burden of proof, under § 973.12(1). ¶20. A PSI will satisfy that burden if it recites the date of the prior conviction. ¶23. And, a certified copy of the prior judgment of conviction will suffice. ¶24. But this doesn't mean that § 973.12(1) forbids use of an uncertified copy of the prior judgment as proof of repeater status. ¶¶25, 34. Nor do the rules of evidence inhibit such use; they don't apply to sentencing, and a proceeding at which the state seeks to prove habitual criminality is "more analogous to the sentencing process than to trial." ¶¶38-39. ¶46. To sum up, we know that proof of prior convictions must be made by the state, as clearly required under § 973.12(1). Yet it is equally true that a defendant's repeater status is not an element of the underlying crime to be proved prior to the verdict. Because proof of the defendant's qualifying prior convictions comes after the verdict and is heard solely by the sentencing judge, the statutory scheme and case law have treated proof of this element differently from traditional proof at trial. Overall, we believe the proof required of the state under § 973.12(1) fits much better with the process of sentencing. We conclude that the state's proof process under § 973.12(1), at least as it pertains to the use of documentary evidence, is not governed by the formal rules of evidence applicable at trial. Therefore, a copy of a prior judgment of conviction need not be certified to be used as proof in this context.The holding is informed by "(t)he concept that proof of prior convictions should be treated differently from other penalty enhancers is bolstered by recent U.S. Supreme Court decisions," ¶44, citing Apprendi v. New Jersey, 530 U.S. 466, 499 (2000) (any fact which increases penalty beyond prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to jury and proved beyond reasonable doubt), and Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998) (statutory penalty enhancements based on criminal recidivism are not elements of the crime but are properly viewed as sentencing factors). Thus, Saunders concludes, id.: "When constitutional due process and jury trial requirements do not compel the determination of a defendant's prior convictions at trial, there is no compelling reason why the rules governing proof of evidence at trial should be applied to a proceeding after trial." But: an amicus brief in United States v. Shepard, No. 03-9168 lays out a plasuible argument for overruling those cases, and to bring repeater enhancements fully within the rule of Apprendi, and of the subsequently decided Blakely v. Washington. Of course, if that effort succeeds, then Saunders will have to be revisited. Note, however, the "ample support (in other jurisdictions) for the conclusion that Apprendi's prior conviction exception remains viable," Commonwealth v. Aponte, PA SCt No. J-166-2002, 8/19/04 (string-citing cases). But the "prior conviction" exception -- whether a defendant has a right to jury determination beyond reasonable doubt of a prior-conviction enhacer remains unsettled; futher discussion here. |
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| Enhanced Penalties -- Proof -- Admission: More Required |
| State v. Razzie
Watson, Sr., 2002 WI App 247 For Watson: Dennis Schertz Issue/Holding: ¶5 An admission from a defendant stating, "I am a repeater," without more, is insufficient to constitute an admission of a prior conviction under WIS. STAT. § 973.12(1). As the circuit court indicated in its colloquy, "repeater" and "habitual offender" are legal, not factual terms, and a defendant may not be aware of what he or she is admitting. Cf. State v. Collins, 2002 WI App 177, ¶¶12-13, No. 01-2185-CR (holding that admission the defendant is a repeater is insufficient to show that convictions are "comparable" to a Wisconsin "serious felony" under WIS. STAT. § 939.62(2m)). See also State v. Farr, 119 Wis. 2d 651, 659, 350 N.W.2d 640 (1984) (stating that defendant’s admission "may not by statute be inferred"); State v. Zimmerman, 185 Wis. 2d 549, 557, 518 N.W.2d 303 (Ct. App. 1994) (holding that admission by defendant must make reference to the date of conviction and periods of incarceration if conviction is more than five years old). |
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| Enhanced Penalties - Proof: Admission -- Sufficiency Under § 973.12(1). |
| State v. David C. Liebnitz, 231 Wis.2d 272, 603 N.W.2d 208 (1999), on certification. |
| For Liebnitz: Rex R. Anderegg. |
| Issue: Whether the defendant sufficiently admitted to an alleged repeater allegation so as to justify enhanced sentencing where, although he never disputed the allegation and in fact received the bargained-for sentence, he never distinctly admitted the repeater allegation. |
| Holding: Because the complaint and information both set forth the details of the repeater allegation along with the enhanced penalty; the judge at the initial appearance read the charges and penalties to the defendant; and the defendant's no contest plea acknowledged that the complaint established a factual basis for the plea, the record supports an admission to the repeater allegation, notwithstanding the absence of an express admission at the plea colloquy. |
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| Enhanced Penalties -- Proof: Prior Need Not Be Part of Appellate Record |
| State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530 |
| For Koeppen: Richard L. Zaffiro |
| Issue: Whether the repeater-qualifying convictions were inadequately proved merely because they weren't made part of the appellate record. |
| Holding: "Even if the trial court did not include these documents in the appellate record, the documents' existence at the time of sentencing is not negated because, as the appellant, Koeppen had the duty to ensure the completeness of the appellate record. ... In such situations, we must assume that the missing material; supports the trial court's ruling." ¶37. |
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| Enhancer -- Judgment on Prior Entered After Commission of Enhanced Offense |
| State v. Razzie
Watson, Sr., 2002 WI App 247 For Watson: Dennis Schertz Issue/Holding: A guilty plea suffices to establish a qualifying repeater-enhancement, even though the judgment of conviction on that plea isn't entered until after commission of the offense being enhanced. ¶¶9-14. |
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| Enhancer -- § 974.06, Serial Litigation Bar to Challenge |
| State v. Thomas A. Mikulance, 2006 WI App 69 |
| Pro se |
Issue/Holding:
A “narrow”
exception to the serial litigation bar of § 974.06(4) and
State v.
Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is
established by State v.
Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998),
which “applies only where the defendant files a motion alleging that the State
has failed to prove the prior conviction necessary to sustain the habitual
criminal status (by proof or by admission) or when the penalty imposed is longer
than permitted by law for a repeater,” ¶¶1, 16. Thus, although §
973.13 (sentence exceeding maximum penalty valid only to extent of
statutorily authorized maximum) may be invoked in these circumstances to avoid
the serial litigation bar, it may not be utilized simply to challenge the
procedure under which a guilty plea was taken.
¶18 Simply stated, unlike the defendant in Flowers, Mikulance does not raise a proper Wis. Stat. § 973.13 claim. Section 973.13, as it pertains to sentencing a repeat offender, applies only when the State fails to prove the prior conviction necessary to establish the habitual criminal status (by proof or by admission) or when the penalty given is longer than permitted by law for a repeater. See Flowers, 221 Wis. 2d at 28-29; see also State v. Spaeth, 206 Wis. 2d 135, 155-56, 556 N.W.2d 728 (1996). Mikulance makes neither of these arguments. He does not argue that the court sentenced him to prison for more time than the enhancement statute permits nor does he argue that the sentence was based on lack of proof by the State or lack of an admission by him that the prior conviction existed. |
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| Enhanced Penalties -- § 939.62(2), Time for Qualifying Offense -- Confinement under Hold as Tolling |
| State v. Tyrone Price, 231 Wis.2d 229, 604 N.W.2d 898 (Ct. App. 1999). |
| For Price: James L. Fullin, Jr., SPD, Madison Appellate. |
| Issue: Whether confinement time spent on parole holds qualifies as "actual confinement serving a criminal sentence" thereby extending the five-year period for a prior, qualifying sentence-enhancement conviction under § 939.62(2). |
Holding: Time spent under parole hold qualifies as time spent under a criminal sentence within the meaning of the repeater act:
¶13 Since the expansion of the five-year period is at issue in this case, it is appropriate to inquire why the legislature would have built this provision into the statute. We think the answer is clear. A sentenced offender who is actually confined, whether by imprisonment or subsequent parole hold, is off the streets and no longer able to wreak further criminal havoc against the community. Price's narrow interpretation of the phrase "criminal sentence" would frustrate this legislative intent to expand the five-year term as to those offenders.... |
| Go To Brief |
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| Enhancer – Timing of Prior Conviction – Tolling During “Intensive Sanctions” |
| State v. Steven L. Pfeil, 2007 WI App 241 |
| For Pfeil: John P. Tedesco, SPD, Madison Appellate |
Issue/Holding:
Time spent in custody of the
(now-lapsed) division of intensive sanctions tolls the limitation period for
prior convictions, § 939.62(2):
¶2 …. We conclude that supervision under the intensive sanctions program constitutes “actual confinement” within the meaning of Wis. Stat. § 939.62(2). The intensive sanctions program operates as a correctional institution, is deemed a confinement classification, and is more restrictive than ordinary probation or parole supervision or extended supervision. Under it, Pfeil was a prisoner and became eligible for sentence credit. We therefore decline Pfeil’s request that we reverse the judgment and remand with instructions to commute the enhancer portion of his sentence. Instead, we affirm.DIS terminated as of 12/31/99; see ¶3 n. 2. Therefore, the impact of this case should be pretty limited. The larger principle might be the idea that “actual confinement,” for tolling purposes, hinges on whether the defendant was entitled to sentence credit and subject to escape charge for leaving that confinement, ¶12. |
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| Enhancer – Waiver of Objection to Sufficiency of Repeater Proof |
| State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision |
| For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate |
Issue/Holding:
Failure to object to the manner of
proving a repeater allegation (via CCAP) did not constitute waiver of an objection
that the proof was insufficient:
¶51 The State contends that we concluded in Saunders that an objection to the sufficiency of the evidence of habitual criminality must be made in the circuit court or it is waived. …Lack of objection in Saunders constituted a stipulation to the State’s “mode of proof,” namely an uncertified copy of a judgment of conviction, ¶43. Why can’t you argue the same the same thing here, relative to not objecting to CCAP entries? Because of the difference between these forms of documentation, at least according to the court: ¶45 It is important to note that one of the questions we addressed in Saunders was whether an uncertified copy of a judgment of conviction was what it purported to be, i.e., an authentic copy of the judgment of conviction. Id., ¶28. That question differs markedly from the question posed by a CCAP report. With a CCAP report, the question is whether the report is an accurate narration of the judgment of conviction of a particular defendant, for a particular crime, on a particular date. Koeppen, 195 Wis. 2d at 127.That is, while “an uncertified copy is not materially different from a certified copy, and is identical with the exception of an official stamp,” ¶42, CCAP entries are not minimally reliable enough to satisfy proof beyond reasonable doubt. |
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| Enhanced Penalties -- Waiver of Objection to Sufficiency of Repeater Proof |
| State v. James O. Edwards, 2002 WI App 66, PFR filed 2/18/02 |
| For Edwards: Glenn C. Cushing, SPD, Madison Appellate |
| Issue: Whether failure to object to exhibits (uncertified copy of judgment of conviction; DOC fax indicating prior periods of confinement) waived an argument that the state failed to prove Edwards’ repeater status. |
Holding: Failure to object to documentation that facially establishes repeater status waives the issue of sufficiency of proof; State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), distinguished:¶10. Wisconsin Stat. § 973.13 does not bar application of the waiver doctrine. Admittedly, the statute uses the broad phrase "In any case," but this is only in any case "in excess of that authorized by law." Both statutory and case law recognize that parties waive their right to object to the admissibility of evidence on appeal when they fail to do so before the circuit court. Therefore, a sentence imposed based on evidence that the defendant has not objected to and, on its face, satisfies the requirements of Wis. Stat. § 973.12 is not imposed in excess of that authorized by law.However, the holding is expressly limited, “to instances where the State submits a document that, on its face, is sufficient to prove that the defendant was a repeater.” ¶13. The documents here -- faxed uncertified judgment of conviction and faxed DOC document containing dates of incarceration -- satisfy this test. Id. (Note: This opinion was originally released 12/20/01, and withdrawn; this new version substantially embellishes the waiver analysis of the original opinion. It also reads out of Flowers any implication of support for non-waiver of repeater arguments. ¶11 n. 4.) |
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| Expunction,
§ 973.015 -- Application to Prosecutor and Law Enforcement Records State v. Anthony J. Leitner, 2002 WI 77, affirming 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207 For Leitner: Jefren Olsen, SPD, Madison Appellate Issue: Whether the expunction statute, § 973.015, requires prosecutors and law enforcement agencies to expunge their records documenting the facts underlying an expunged conviction. Holding: ¶38. Although the Wisconsin legislature has not explicitly set forth the purpose of Wis. Stat. § 973.015, we agree with the defendant and the State that § 973.015 was enacted as a companion to the Wisconsin Youthful Offenders Act and that both statutes were intended to provide a break to young offenders who demonstrate the ability to comply with the law. As the court of appeals in Anderson stated, § 973.015 "provides a means by which trial courts may, in appropriate cases, shield youthful offenders from some of the harsh consequences of criminal convictions." But nothing in the language or history of § 973.015 indicates that the legislature intended record expunction under § 973.015 to wipe away all information relating to an expunged record of a conviction or to shield a misdemeanant from all of the future consequences of the facts underlying a record of a conviction expunged under § 973.015.For discussion of the inherent, equitable power of the federal court to order expunction -- an extremely narrow power, to be sure -- see U.S. v. Flowers, 389 F.3d 737 (7th Cir. 2004); U.S. v. Rowlands, 3rd Cir No. 05-3425, 6/9/06. But note split in authority as to whether federal court possesses ancillary jurisdiction to order expungement, U.S. v. Coloian, 1st Cir No. 06-1357, 3/20/07. |
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| Fines - Exercise of Discretion – Articulation of Sentencing Objectives and Determination of Ability to Pay |
| State v. Ahern Ramel, 2007 WI App 271 |
| For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate |
Issue/Holding:
¶14 A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. See id. Here, however, with no explanation from the sentencing court of how the fine imposed advanced those objectives, we are left to guess as to what those objectives might be in relation to the fine. Gallion requires that we do more than guess. Id. , 270 Wis. 2d 535, ¶46. While we do not hold that Gallion requires a trial court to explain the reason for a specific amount of a fine (as it is likewise not required to explain a specific time of incarceration), we do conclude that under Gallion some explanation of why the court imposes a fine is required.The court proceeds to “search the record to determine whether it supports … a finding” of ability to pay, ¶26. Discerning no support, the court vacates the fine, ¶27. |
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Fines - Ability to Pay -- Determination State v. Bruce J. Kuechler, 2003 WI App 245 For Kuechler: Charles B. Vetzner, SPD, Madison Appellate Issue/Holding: ¶13. Fourth, Kuechler contends that the trial court imposed the fine without first ascertaining his ability to pay. We agree. Because Kuechler timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue. See State v. Iglesias, 185 Wis. 2d 117, 129, 517 N.W.2d 175 (1994). |
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| Fines -- Attorney Fees, Distinguished From |
| State v. Kevin J. Helsper, 2006 WI App 243 |
| For Helsper: Glenn L. Cushing, SPD, Madison Appellate |
Issue/Holding:¶20 Fines and attorney fee obligations involve different State purposes, and therefore a different constitutional analysis. When analyzing the constitutionality of a fee recoupment statute, the court is to consider, among other things, the rationality of the connection between legislative means and purpose and the existence of alternative means for effectuating the purpose. See Bearden, 461 U.S. at 667. The State’s purpose in collecting a fine is not the same as its purpose in collecting an attorney fee obligation. A fine is a penalty for wrongdoing, and indigency is not a license to break the law with impunity. Id. at 669. When a defendant cannot pay a fine, the State still has an interest in deterring the prohibited conduct and levying some punishment. Id. at 672. Attorney fees, on the other hand, are a debt owed to the State. The State’s purpose is to collect that debt. James v. Strange, 407 U.S. 128, 141 (1972). Punishment will not help the State collect a debt from a defendant who truly lacks the resources to pay.Therefore, the procedure for raising inability to pay a fine, see State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 289, 201 N.W.2d 778 (1972) (hearing on ability to pay fine required only upon affirmative request), is inapplicable, ¶19. Instead, the court may not order commitment for failure to pay attorney fees without finding ability to pay, ¶24. |
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Fines - Discretion to Impose State v. Bruce J. Kuechler, 2003 WI App 245 For Kuechler: Charles B. Vetzner, SPD, Madison Appellate Issue/Holding: ¶11. Second, Kuechler argues that "[e]ven if the size of the fine could be based exclusively on a guideline recommendation, the court here failed to give adequate reasons for choosing the more severe of two alternative guidelines." We disagree. The court exercised appropriate discretion when it chose to impose a fine based on the guidelines that highlighted aggravating factors rather than on the guidelines that highlighted mitigating factors. The court specifically characterized this case as an "aggravated" one and the court identified the factors that led it to that characterization. Thus, the record contains evidence that the trial court properly exercised its discretion and we will not disturb the court's decision. See Cooper, 117 Wis. 2d at 40; see also Spears, 147 Wis. 2d at 447. |
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Fines - Guidelines, Applicability State v. Bruce J. Kuechler, 2003 WI App 245 For Kuechler: Charles B. Vetzner, SPD, Madison Appellate Issue/Holding: In sentencing for OWI, "it was not error for the court to seek guidance from the local guidelines" in determining the fine on an OWI sentence. ¶10, citing State v. Jorgensen, 2003 WI 105, ¶¶2, 27, __ Wis. 2d __, 667 N.W.2d 318, for the principle "that although local sentencing guidelines are only applicable to prohibited alcohol concentration (PAC) offenses and are not to be robotically applied to OWI offenses, it is not error to make reference to local guidelines when sentencing for an OWI offense." (Nor, under Jorgensen, did using the guidelines violate due process or equal protection. ¶12.) |
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| Presumptive Minimum – Truth-in-Sentencing |
|
State v. Tommie L. Cole,
2003 WI 59, on
certification For Cole: Suzanne L. Hagopian, SPD, Madison Appellate Issue/Holding: ¶9. The court of appeals asks that we determine what combination of confinement in prison and extended supervision constitutes the presumptive minimum sentence when a statute provides that an offender “shall be imprisoned for not less than 3 years.”10 In other words, the sole issue presented to this court is whether the presumptive minimum sentence under Wis. Stat. §§ 961.41(1)(cm)3. and 973.01 is a term of three years of confinement plus an additional term of extended supervision or a term of confinement plus extended supervision totaling three years. |
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| Mandatory Penalty -- Controlled Substances, Suspension/Revocation of Operating Privileges |
| State v. Jacob E. Herman, 2002 WI App 28, PFR filed 1/16/02 |
| For Herman, Jack E. Schairer, Jefren E. Olsen, SPD, Madison Appellate |
Issue/Holding: ¶1:This appeal presents a single issue: whether § 961.50 prescribes a 'minimum sentence' as that term is used in Wis. Stat. § 961.438, which provides that minimum sentences for violations of ch. 961 are presumptive, rather than mandatory. We conclude that a suspension imposed pursuant to § 961.50 is not a "minimum sentence" as that term is used in § 961.438 and that it is a mandatory penalty.(Note: § 961.438 says that "minimum" sentences are merely "presumptive," i.e., not mandatory. This limitation doesn't control § 961.50, because, even though "sentence" is ambiguous in the sense that it might be broad enough to cover all forms of punishment including loss of driving privileges, § 961.50 is clear on its face. That provision expressly requires loss of driving "in addition to any other penalties that may apply." In addition, this provision ties in with the federal scheme which made highway funds contingent on loss of driving for drug offenses.) |
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| Separation of Powers Doctrine - Prosecutorial Veto and § 973.195, TIS Sentence Adjustment |
| 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. Stat. § 973.195. …The holdings are contained in two separate, 4-vote concurrence/dissents; see ¶82. The misleadingly referred-to “lead opinion” – a mere 80 ¶¶ – is written as if it were the majority, replete with “we hold” and “we conclude” but it garners only 3 votes. In reality, it is not the lead opinion, or the plurality, or anything other than, quite simply, the dissent. Indeed, the “lead opinion’s” recognition of its dissent-status is coy, not to say grudging, ¶6 fn. 2. We here at Case Summaries strive to be above the fray, but would be remiss if we failed to draw attention to the majority’s dismissive criticism of the dissent, ¶85 n. 18: “The lead opinion goes to great length, making numerous arguments to uphold the statute. I do not undertake an analytical critique of each argument, although I could. The lead opinion builds its case on weak underpinnings, supported by quotations taken out of context. Very little research by a reader will quickly reveal the weaknesses that permeate the lead opinion.” Ouch! And we won’t even mention ¶94 fn. 34, which instructs the “lead opinion” on the need to actually consult a dictionary when tossing around definitions. If all this indicated was trouble in paradise, then it would be mere distraction. But it must be said that the majority’s spare, elegant analysis strikes just the right tone, making the necessary point efficiently and clearly: although sentencing may be a shared power (that is, shared among governmental branches), a statute simply may not compel a court to decide a case in a particular way; yet, the veto provision does just that, by allowing the prosecution to trench on judicial exercise of discretion. Indeed, the court says that it’s more than separation of powers at stake, it’s “the judiciary’s duty to administer justice impartially,” which would be impaired by unilateral, prosecutorial authority to decide whether a sentence may be adjusted, ¶106. In a sense, this is akin to the circuit court’s reservation of authority to determine dismissal of a pending prosecution at prosecutorial request, e.g., State v. Kenyon, 85 Wis.2d 36, 45, 270 N.W.2d 160 (1978) (“Prosecutorial discretion to terminate a pending prosecution in Wisconsin is subject to the independent authority of the trial court to grant or refuse a motion to dismiss ‘in the public interest.’”). The prosecution can no more unilaterally determine the outcome of sentence adjustment then it can unilaterally terminate a pending case. Like all bureaucracies, the judiciary jealously guards its powers; and because it derives much of its power from the respect accorded its independence, it is likely to be especially vigilant against such encroachments. At least on this particular occasion it is, by a razor-thin one-vote margin |
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| § 973.195, TIS Sentence Adjustment Petition – Exercise of Discretion |
| State v. David S. Stenklyft, 2005 WI 71, on bypass |
| For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate |
Issue/Holding:¶126 [T]he record of the proceedings must clearly demonstrate that the circuit court exercised its discretion and weighed the appropriate factors when the court reached its decision on sentence adjustment. An example of such balancing would be a record that showed that the circuit court considered the nature of the crime, character of the defendant, protection of the public, positions of the State and of the victim, and other relevant factors such as "[t]he inmate's conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs. . . ." Wis. Stat. § 973.195(1r)(b)(1). Here, the record does not show that the circuit court weighed all of the appropriate factors when the court reached the decision to grant sentence adjustment. [57] Therefore, the decision of the circuit court should be reversed ….Keep in mind that Stenklyft was granted adjustment by the circuit court, ¶14. Reversal is almost an afterthought, as if it’s both obvious and routine, though that is hardly the case. How did the circuit court err? Typically, you need either a complete absence of discretion or else reliance on a clearly improper factor, neither of which occurred here. The only hint by the court of perceived error is that while the trial court considered some of the factors, it didn’t make a sufficient record of considering all of them. What happened to the idea that there is a presumption that the trial court acted reasonably, and that the challenging party has a burden of showing some unreasonable basis for the exercise of discretion? (E.g., State v. David Arredondo, 2004 WI App 7, ¶52, though you could literally open the Reports at random and the odds would be decent you’d find a similar holding, the principle is so frequently stated.) The court doesn’t even pay lip service to this standard, let alone apply it in any concrete sense. Taken at face value, Stenklyft holds, then, that the circuit court must demonstrate consideration of all sentence-adjustment factors, else it hasn’t engaged in a sustainable exercise of discretion. Must, that is, unless there’s one set of guidelines for the grant of a petition, and another for rejection. |
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| Sentence Modification/Review: Sentence Adjustment, § 973.195: Applicability to TIS-I |
| State v. James Hubert Tucker, Jr., 2005 WI 45, affirming summary order of court of appeals |
| For Tucker: Donald T. Lang, SPD, Madison Appellate |
Issue/Holding:
¶18 An analysis of 2001 Wis. Act 109 by the Legislative Reference Bureau clearly supports the conclusion that persons sentenced under TIS-I are able to utilize the procedure set forth in Wis. Stat. § 973.195 ….Sec. 973.195 requires service of a specified percentage of sentence, depending on Class of felony, before the petition can be filed. These Classes relate only to TIS-II, not -I, which the court acknowledges causes a problem in making a TIS-I service-of-sentence calculation, ¶22. “However, this problem is remedied by simply applying the TIS-II felony classification under Wis. Stat. § 939.50 to persons sentenced under TIS-I for the limited purpose of determining the ‘applicable percentage’ of a term of initial confinement in a Wis. Stat. § 973.195 petition for sentence adjustment,” ¶23. Thus, for example, Tucker’s TIS-I Class D felony may be deemed a TIS-II Class H felony for petition-adjustment purposes. See also State v. David S. Stenklyft, 2005 WI 71, ¶3: ¶3 We conclude, in accordance with State v. Tucker, 2005 WI 46, ¶¶22-24, ___Wis. 2d ___, 694 N.W.2d 926, that § 973.195 applies to inmates sentenced under TIS-I and that the felony classification system employed by the second phase of Truth-in-Sentencing (TIS-II), under Wis. Stat. § 939.50, should be utilized to determine the "applicable percentage" of the term of initial confinement an inmate sentenced under TIS-I must serve in order to file a petition for sentence adjustment. That "applicable percentage" is then applied to the sentence originally imposed to determine if the inmate is eligible to file a petition under Wis. Stat. § 973.195(1g). Id., ¶23. Because the crime for which Stenklyft was convicted is now classified as a Class F felony and there is no dispute that he served 75 percent of the initial confinement portion of his sentence, we conclude that his petition for sentence adjustment was not premature under § 973.195(1g). |
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| Conflict between (Indisputably) Unambiguous Oral Pronouncement and Written Judgment |
| State v. Carla L. Oglesby, 2006 WI App 95 |
| For Oglesby: Timothy T. Kay |
Issue/Holding:
¶15 … [T]he trial court’s oral pronouncement imposed a two-year term of probation in 2004CM401. Despite this clear and unequivocal statement, the judgment of conviction recited a probation term of six years. |
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| Conflict between Ambiguous Oral Pronouncement and Written Judgment – Sentencing Court’s Silence on Matter of Consecutive or Concurrent – Determination of Sentencing Court’s Intent, Presumption of Concurrency |
| State v. Carla L. Oglesby, 2006 WI App 95 |
| For Oglesby: Timothy T. Kay |
Issue/Holding: The test for statutory construction
– whether the language is capable of being understood by reasonably
informed persons in different ways – applies to determination of a
sentencing court’s intent; where the parties staked out different
sentencing positions but the sentencing court was silent as to whether multiple
terms were to be concurrent or consecutive, the court’s sentencing
remarks could reasonably be construed as indicating either position, ¶19.
¶21 Thus, we look to the full record in this case, including the judgment of conviction, in determining the trial court’s sentencing intent. But in so doing, Oglesby comes to the debate with a threshold advantage. In State v. Rohl, 160 Wis. 2d 325, 330, 466 N.W.2d 208 (Ct. App. 1991), the court noted the supreme court’s holding in In re McDonald, 178 Wis. 167, 171, 189 N.W. 1029 (1922), that where an offender is actually or constructively serving a sentence for one offense and is then ordered to serve another sentence for a different offense, the second sentence will be deemed to run concurrently with the first sentence in the absence of a statutory or judicial declaration to the contrary. (Emphasis added.) [6] So the question becomes whether the record, including the judgment of conviction, rebuts this presumption.The court goes on to say that the presumption was not rebutted. Though the reasons are fact-specific, the court stresses that the sentencing disposition “was not in lockstep with the State on all aspects of this sentencing,” ¶23. In other words, the State’s having sought consecutive time did not fill the vacuum caused by the court’s failure to articulate concurrent or consecutive, given that the court did not adopt the State’s position in toto. Indeed, the court made merely “minor deviations … from the State’s recommendations,” but that was enough to preserve the presumption, ¶23. Lengthy discussions of Brown, McDonald and State v. Lipke, 186 Wis. 2d 358, 364, 521 N.W.2d 444 (Ct. App. 1994) follow, the larger message being that when confronted with sentencing-intent ambiguity the reviewing court must review the record as a whole, a necessarily fact-intensive inquiry. ¶33 In summary, in both Brown and Lipke, the court of appeals’ examination of the record as a whole revealed additional relevant information, beyond the mere recital in the judgment of conviction, on the question of the trial court’s intent as to whether the sentence was concurrent or consecutive. Here, our examination of the record as a whole reveals no such additional information. Instead, we are left with the bald statement in the judgment of conviction that the confinement portion of the sentence in 2004CF225 is consecutive. If the trial court had sent any kind of signal that a consecutive sentence was necessary or appropriate, we likely would rule for the State. But we do not have that signal in this case. [7] Without more, we do not deem the bald recital of a consecutive sentence in the judgment of conviction sufficient to overcome the presumption of a concurrent sentence. |
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| Ambiguity in Oral Pronouncement, Resolved by Written Judgment |
| State v. Edward W. Fisher, 2005 WI App 175 |
| For Fisher: Eileen Miller Carter |
| Issue/Holding: “Assuming the court’s oral ruling contained some ambiguity, the written judgment of conviction and the conditions of extended supervision are crystal clear with respect to what conduct the conditions cover. See Jackson v. Gray, 212 Wis. 2d 436, 443, 569 N.W.2d 467 (Ct. App. 1997) (where oral pronouncement ambiguous, we may look to written judgment to ascertain circuit court’s intent),” ¶16. |
| Jackson summarizes the organizing principle this way: “When there is a conflict between an ambiguous oral pronouncement and the written judgment, the intent of the judge controls the determination. See State v. Lipke, 186 Wis.2d 358, 364, 521 N.W.2d. 444, 446 (Ct. App. 1994). "[W]here the oral pronouncement is ambiguous, it is proper to look at the written judgment to ascertain the court's intention." Id. ” The reference to an ambiguous oral pronouncement isn’t accidental, for when the oral pronouncement is unambiguous then it controls disposition over some contrary expression in the written judgment, see e.g., State v. Gabriel L. Ortiz, 2001 WI App 215, ¶27. |
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| Review -- Conflict between oral pronouncement written judgment |
| State v. Gabriel L. Ortiz, 2001 WI App 215 |
| For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate |
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Issue/Holding: "(W)here there is conflict between a trial court's oral
pronouncement and a written judgment, the oral pronouncement controls." ¶27, citing
State v. Perry, 136 Wis. 2d 92, 114, 401 N.W.2d 748 (1987). This rule is
applicable even though "the trial court's oral pronouncement came after, rather than before, the
written judgment. Nonetheless, the pronouncement reflects the authority under which the court
issued the restitution order. We conclude that we must give that pronouncement its intended
effect." Id., n. 7.
An interesting variation on this principle: the
sentencing court's failure to articulate a condition of release "create(s) a material conflict
between the written and oral sentencing orders."
U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003)
(stressing, as well, that rationale for oral-pronouncement-controls rule stems from defendant's
right to presence at sentencing -- note that in Wisconsin the defendant has an absolute right to
be present at sentencing,
§ 971.04(1)(g); State
v. Koopmans, 210 Wis. 2d 670, 563 N.W.2d 528 (1996));
U.S. v.
Bigelow, 5th Cir No. 05-20539, 8/23/06 (same effect);
People v. Zackery, Cal App No. C051431, 12/27/06:
The clerk cannot supplement the judgment the court actually
pronounced by adding a provision to the minute order and the
abstract of judgment. ...
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| Go To Brief |
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| Review -- Conflict between oral pronouncement written judgment. |
| State v. Tommy Lo, 228 Wis. 2d 531, 599 N.W.2d 659 (Ct. App. 1999). |
| For Lo: Margarita Van Nuland. |
| Issue/Holding: "When there is a conflict between the court's oral pronouncement of sentence and a written judgment of conviction, the oral pronouncement controls." |
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| Review -- Conflict Between Oral Pronouncement and Written Judgment -- Correction of Clerical Error in Judgment |
| State v. Robert John Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, affirming unpublished decision |
| For Prihoda: Timothy T. Kay |
| Issue1: "(W)hether the office of the clerk of circuit court may correct a clerical error in the sentence portion of a written judgment of conviction without prior court approval." ¶3. |
Holding1: ¶5: (W)e conclude that the office of the clerk of circuit court does not have the authority to correct a clerical error in the sentence portion of a written judgment of conviction. We conclude that the circuit court, not the office of the clerk of circuit court, must determine the merits of a request for a change in the sentence portion of a written judgment of conviction because of an alleged clerical error. We further conclude that the circuit court may either correct the clerical error in the sentence portion of a written judgment of conviction or may direct the clerk's office to make such a correction.Prihoda was sentenced in 1976 on multiple counts. The trial court orally ordered count 5 consecutive to count 2, and count 2 consecutive to count 1. The written judgment of conviction, however, seemingly conflicted with the oral pronouncement, by failing to make count 5 expressly CS to count 1. The discrepancy wasn't brought to light until 1997 when Prihoda sought to reduce his security classification. In response, the clerk of circuit court corrected the written judgment to correspond to the oral pronouncement. Prihoda sought to vacate this correction, and the trial court denied the motion. Everyone agrees that the original judgment was based on a clerical error. Nor is there any dispute that an unambiguous oral sentencing pronouncement controls a conflict with the written judgment. What, then, is to be done? The clerk can't correct its own error independent of the court; instead, that power is reserved to the circuit court, and the power may be exercised at any time. ¶26 Accordingly, we adopt a bright-line rule to avoid disputes about a clerk's powers: The office of a clerk of circuit court may not correct a clerical error in the sentence portion of a written judgment of conviction independent of the circuit court.Indeed, there is compelling authority for the idea that an amendment to sentence must be accomplished by judicial order rather than administrative action: Earley v. Murray, 2nd Cir No. 04-4098-pr, 6/9/06. |
| Issue2: "(W)hether an offender should be given notice that a clerical correction of the sentence portion of the written judgment of conviction is being considered and should be present at a hearing to consider whether the written judgment is to be modified."¶3 |
| Holding2: "(W)e conclude that the circuit court has discretion to determine whether an offender is entitled to notice and a hearing before the correction of a clerical error in the sentence portion of a written judgment of conviction is made." ¶6. |
A defendant has, of course, a right to personal presence at pronouncement of judgment and sentence,
§ 971.04(1)(g). But that right simply doesn't attach to mere correction of clerical error, which "by definition is minor and mechanical in nature." (See also Trussell v. Bowersox, 8th Cir No. 05-2525, 5/9/06 (no right to presence at proceeding which was "simply the correction of a mistake" in sentence).
The circuit court has discretion nonetheless to conduct an adversary hearing before correcting a clerical error, taking into account such factors as equity and transport. ¶31. No hearing appeared to be necessary in this case, because the facts and legal principles were so clear. ¶33.
The court, though, carefully stresses that Prihoda did have the opportunity to join the issue:
¶51 In the present case, the circuit court, the court of appeals, and this court have considered the defendant's challenges to the correction of a clerical error in his written judgment of conviction and have concluded that his arguments are without merit. The defendant has had his day in court, and his challenges to the correction have been fully considered.Issue3: "(W)hether the doctrine of laches or Wis. Stat. § 893.40 (1997-98) proscribes a correction of a clerical error in the written judgment of conviction more than twenty years after the judgment is entered." ¶3. Holding3: "(W)e conclude that neither the doctrine of laches nor Wis. Stat. § 893.40 bars a correction of a clerical error in the sentence portion of a written judgment of conviction in the present case." ¶7. |
| Laches has three elements: unreasonable delay; lack of knowledge the opposing party would assert its rights; prejudice. ¶37. Prihoda is hoist by his own petard, because over the years before the judgment was corrected he filed pro se motions asserting in effect that count 5 was indeed consecutive to count 1. ¶40. "Under these circumstances, the defendant's claim that he expected the lower sentence cannot be given credence," and he can't show prejudice. ¶¶42-43. Nor does the § 893.40 20-year statute of limitations for action upon judgment apply. ¶¶46-49. |
| Unresolved Issue (?): Whether the sentences were illegal. Prihoda was sentenced on four armed robberies, concealing identity. Each sentence was for "30 years as to Armed Robbery [consecutive or concurrent to Count 1] plus five years for concealing, to run consecutive to first portion of this count (30 years)." These sentences would seem to be plainly illegal, under State v. Robinson, 102 Wis. 2d 343, 354-56, 306 N.W.2d (1981) (concealing identity not separate, substantive crime, but aggravates underlying offense; therefore, separate term for concealing identity consecutive to term for armed robbery is unauthorized disposition, requiring resentencing for imposition of single sentence). Prihoda had prior appeals, and it's simply not clear whether he raised this particular defect (if so, then he must not have been successful, but that's hard to imagine, because the issue seems so clear-cut). Can he raise it now, or will he run into an Escalona-Naranjo bar, not to say his own laches problem? |
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(For Authority to Impose Consecutive Sentences, see above.) |
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| Sentence – Consecutive Terms – Exercise of Discretion, Generally |
| State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09 |
| For Berggren: Robert G. LeBell |
| Issue/Holding: The sentencing court need not state separately why it chooses consecutive rather than concurrent terms; rather, this determination is made by considering the same factors as inform sentence length, ¶¶45-46. |
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| Review - Factors - Gallion – Generally |
| State v. Chad W. Ziegler, 2006 WI App 49, PFR filed 3/13/06 |
| For Ziegler: Kenneth P. Casey, UW Law School |
Issue/Holding:
¶32 We conclude that the trial court’s sentencing remarks satisfy Hall as to the reasons for the consecutive sentences and Gallion as to the reasons for the length of the sentence. As noted, the trial court engaged in a thorough and exhaustive examination of the relevant sentencing objectives and factors. This discourse clearly reveals that the court considered Ziegler’s character, as represented by his multiple crimes in this case and the numerous other offenses then pending against him, and the corresponding need to protect the public, as the most compelling factors in this sentencing. [7] …The court of appeals also indicates (¶27) that “the sufficiency of the trial court’s reasons to impose periods of confinement” is beyond challenge, “because the court’s sentencing remarks are a textbook example of a proper consideration of the relevant sentencing objectives and factors.” |
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| Review -- Consecutive Sentences |
| State v. Lonnie C. Davis, 2005 WI App 98 |
| For Davis: Pamela Moorshead |
Issue/Holding:
¶24 Davis next contends that the trial court erroneously exercised its discretion when it imposed consecutive sentences without an adequate explanation of why that was the minimum amount of time necessary. We reject this claim. |
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| Review -- Consecutive Sentences -- Unrelated Past Offenses |
| State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05 |
| For Matke: James B. Connell |
Issue/Holding:
¶17. Finally, Matke argues that the trial court erroneously exercised its discretion when it ordered, without explanation, that Matke's present sentence be consecutive to any other sentences he was then serving. … |
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Review -- Consecutive Sentences -- Reviewed as Ordinary Exercise of Discretion
State v. Peter C. Ramuta, 2003 WI App 80, PFR filed 4/3/03 For Ramuta: Peter M. Koneazny, Richard D. Martin, SPD, Milwaukee Appellate ¶22. Ramuta complains that the cumulative terms of initial confinement-thirty-five years, until he turns seventy-six-are excessive. He claims that the trial court did not adequately explain why the sentences for all but one of his crimes should be, to use Ramuta's word, "stacked." We disagree.Gallion was subsequently reviewed by the supreme court, 2004 WI 42. The new decision may not provide any reason to doubt the result in Ramuta, but if nothing else the court's requirement that sentencing rationles be reviewed much more closely suggests that a simple assertion of the defendant's heavy burden is now too facile. |
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Review -- Consecutive Sentences -- Articulation of Reasons Required
State v. Nathan T. Hall, 2002 WI App 108 For Hall: Howard B. Eisenberg, Dean, Marquette Law School Issue/Holding: ¶8. In situations where, as here, the defendant is convicted of more than one offense, the sentencing court may impose consecutive rather than concurrent sentences. See State v. Borrell, 167 Wis. 2d 749, 764-65, 482 N.W.2d 883 (1992). In sentencing a defendant to consecutive sentences, the trial court must provide sufficient justification for such sentences and apply the same factors concerning the length of a sentence to its determination of whether sentences should be served concurrently or consecutively. See State v. Hamm, 146 Wis. 2d 130, 156, 430 N.W.2d 584 (Ct. App. 1988). Therefore, in situations where the sentencing court has the ability to stack sentences consecutively, ad mortem, "[t]he sentence imposed should represent the minimum amount of custody consistent with those factors." State v. Setagord, 211 Wis. 2d 397, 416, 565 N.W.2d 506 (1997); see also Borrell, 167 Wis. 2d at 764-65. |
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| Sentence – Review – Exercise of Discretion, Generally |
| State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09 |
| For Berggren: Robert G. LeBell |
| Issue/Holding: Sentence was based on proper exercise of discretion, including gravity of offense and defendant’s character and “long-term treatment needs,” ¶¶38-44. |
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| Review – Exercise of Discretion: Adequacy of Linkage of Objectives to Length |
| State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07 |
| For Thexton: Kirk B. Obear |
Issue/Holding:
The sentencing
court satisfied
Gallion’s required
linkage:
¶11 … Here, the court explained that it did not consider Thexton’s conduct so serious that it required Thexton to be incarcerated for the length of time that might be appropriate for other sex offenders, especially in light of his relative lack of a prior record. Nevertheless, the court noted that Thexton’s repeated violations of his probation conditions reflected a failure to understand that he must abide by rules, and it stated that a significant period of incarceration could help to bring that message home. The court also stated that Thexton might be in need of treatment that he could receive while incarcerated. Sentencing is not an exact science; and we are satisfied that there is a reasonable relationship between the objectives of Thexton’s sentence and its length. [6] |
| Applicability of TIS to Crime not Completed until Advent of TIS II |
| State v. Ronnie L. Thums, 2006 WI App 173 |
| For Thums: Paul G. LaZotte, SPD, Madison Appellate |
| Issue: Whether an offense which was partially committed during the TIS-I regime but not completed until advent of TIS-II comes under the former or latter sentencing regime. |
Holding:
¶11 Thums had not committed the crime of stalking with a dangerous weapon during TIS-I. He therefore did not become subject to the TIS-I penalties during TIS-I. … Indeed, because Thums’ conduct did not meet the elements of stalking with a dangerous weapon on the effective date of TIS-II, his liability for that crime was prospective on that date, not retrospective. Thus, application of TIS-II would also not offend the general rule that statutes presumptively have only prospective effect. See Betthauser v. Medical Protective Co., 172 Wis. 2d 141, 147, 493 N.W.2d 40 (1992).There is a related problem that the court expressly does not reach: what penalty scheme applies to a continuing offense that straddles the date of a penalty change, ¶8 and id., n. 2. |
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| Review -- Exercise of Discretion – Generally |
| State v. Donald Odom, 2006 WI App 145 |
| For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial |
| Issue/Holding: A trial court has discretion to emphasize any sentencing factors so long as it considers all pertinent factors; ordering eligibility for Earned Release gave adequate consideration to Odom’s substance abuse treatment needs, ¶28. |
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| Review -- Exercise of Discretion – Generally |
| State v. Jack W. Klubertanz, 2006 WI App 71, PFR filed 4/14/06 |
| For Klubertanz: Martha K. Askins, SPD, Madison Appellate |
Issue/Holding:
¶21 We conclude that the circuit court here properly exercised its sentencing discretion under the standards set forth in Gallion. The court identified the objectives it sought to achieve with the sentence it imposed: punishing Klubertanz, protecting the public, deterring others, and rehabilitating Klubertanz. It analyzed the specific facts relating to the three primary sentencing factors and all the relevant optional factors in a way that explained why these objectives were all appropriate and why a term of imprisonment, as well as lengthy supervision, was necessary to meet the sentencing objectives. In short, the circuit court explained a rational basis for the “general range” it imposed. Id., ¶49.The middle-aged Klubertanz had no prior criminal record, but instead a track record of positive contributions, ¶6; the presentence reports recommended probation, ¶8. But the sentencing court’s general perception that probation would depreciate the seriousness of the offense (sex-related, involving a 15-year old, § 948.025(1)) apparently is enough to sustain the sentence of 3 years’ confinement, 12 supervision. The court of appeals comes awful close to saying in effect that recitation of the primary sentencing factors will immunize the sentence from appellate scrutiny, which more or less guts Gallion. Not that there was any ballast left in that case anyway. |
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| Review -- Factors -- Gallion – Generally |
| State v. Chad W. Ziegler, 2006 WI App 49, PFR filed 3/13/06 |
| For Ziegler: Kenneth P. Casey, UW Law School |
Issue/Holding:¶23 The principal objectives of a sentence include, but are not limited to, the protection of the community, the punishment of the defendant, rehabilitation of the defendant, and deterrence to others. Id., ¶40. A sentencing court should indicate the general objectives of greatest importance and explain how, under the facts of the particular case, the sentence selected advances those objectives. Id., ¶¶41, 42. Besides the objectives of the sentence, the sentencing court must also identify the factors that the court considered in arriving at the sentence and must indicate how those factors fit the objectives and influenced the sentencing decision. Id., ¶43. The primary sentencing factors which a court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public. State v. Davis, 2005 WI App 98, ¶13, 281 Wis. 2d 118, 698 N.W.2d 823. The weight to be given to each factor is within the discretion of the sentencing court. Id. However, other factors may also be relevant. …The court goes on to list secondary factors, PSI and counsels’ recommendations, and applicable sentencing guidelines. The court also stresses that Gallion “conveyed a message,” namely that sentences may not be upheld by “implied reasoning”; instead, the explanation for sentence must be on the record. ¶¶23-25. |
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| Review -- Factors -- TIS, pre-Gallion – Generally |
| State v. Germaine M. Taylor, 2006 WI 22, affirming unpublished summary order |
| For Taylor: Martha K. Askins, SPD, Madison Appellate |
Issue/Holding:
¶17 The standards governing appellate review of an imposed sentence are well settled. [9] A circuit court exercises its discretion at sentencing, and appellate review is limited to determining if the court's discretion was erroneously exercised.Hard to figure just why the court took this case. As the court itself says as the outset of opinion, “We … conclude that under our well-established standards for reviewing the circuit court's exercise of its sentencing discretion, and in light of the individual facts and circumstances of this case, the circuit court exercised proper discretion in its sentence and in its refusal to modify that sentence,” ¶2. Isn’t that why we have a court of appeals? To apply well-established standards of review to a discrete set of facts? This, then, is a fact-specific opinion which by definition adds little or nothing to sentencing review caselaw. Except, perhaps, for a curious aside: the court expressly refuses to apply Gallion because that case post-dated this sentencing, which means that this opinion is simply another menaingless feature of the vast wasteland of McCleary litigation. And which means, in turn, that whether the court’s analysis would support a similar result under similar facts in a post-Gallion setting remains to be seen. (The concurrence, ¶¶47-55, contains a very useful summary of relevant principles.) This purely prospective application of Gallion—“purely,” because Taylor’s case was on direct appeal when Gallion was decided, yet he is deprived of its benefit—is a bit odd, but not necessarily an unalloyed negative: it instantly reduces to dicta the court of appeals’ denigration of Gallion, in State v. Wallace I. Stenzel, 2004 WI App 181, ¶9 and State v. Edward W. Fisher, 2005 WI App 175, ¶¶21-22, for the simple reason that the sentences in those cases came before Gallion was decided hence that case was, we now know, inapplicable. And while it might be true that the court of appeals lacks authority to withdraw any language from its published opinions, State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40, it is equally true that the court is not bound by language that is in fact dicta, State v. Steven A. Harvey, 2006 WI App 26, ¶¶18-19. |
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| Review -- Factors -- TIS -- Probation as 1st Alternative |
| State v. Steven A. Harvey, 2006 WI App 26 |
| For Harvey: Christopher William Rose |
Issue/Holding:
¶47 Harvey correctly states Gallion’s teaching that probation should be considered as the first sentencing alternative. Gallion, 270 Wis. 2d 535, ¶25. Here, the trial court expressly addressed probation. … In sum, the court concluded that probation would unduly depreciate the offense. … |
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| Review -- Factors -- TIS |
| State v. Edward W. Fisher, 2005 WI App 175 |
| For Fisher: Eileen Miller Carter |
Issue/Holding: ¶21 Fisher argues that the circuit court did not satisfy the mandate in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, ¶¶39, 76, 678 N.W.2d 197, that the court exercise its discretion on a “rational and explainable basis.” We understand him to assert that the court should have explained with specificity the comparative weight it ascribed to each factor and exactly how these factors translated into a specific number of years. |
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| 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) …“Having been reinvigorated”? Yikes. Look, Gallion clearly says that what needs to be reinvigorated is the standard set by McCleary, 2004 WI 42, ¶4. No one said the court of appeals needed enlivening, which would have simply been silly at best, insulting at worst. Hard to believe the court of appeals doesn’t know the difference, which raises at least a possibility that the quoted phrase is a flippant reaction. Why mention it? Because when the supreme court expresses concern that sentencing review is a rubber-stamp exercise, ¶26 n. 7, and the court of appeals’ rejoinder is, “Oho, now we’ve been reinvigorated,” it just doesn’t instill confidence that the marching order will be obeyed. |
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Review -- Factors -- TIS
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: ¶28. With the advent of truth-in-sentencing, we recognize a greater need to articulate on the record the reasons for the particular sentence imposed. Under the old, indeterminate system, sentencing discretion was shared among all three branches of government. The legislature set the maximum penalty and the manner of its enforcement; the courts imposed an indeterminate term; and the executive branch, through the parole board, determined how much of that term was going to be served. See Borrell, 167 Wis. 2d at 767 (citation omitted). Under truth-in-sentencing legislation, the executive role has been diminished with the elimination of parole. The legislative role is limited to setting the parameters of the penalty. As a result, the judiciary's responsibility for ensuring a fair and just sentence has significantly increased. |
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| Factors -- Proof of -- Generally |
| State v. James L. Montroy, 2005 WI App 230 |
| For Montroy: Jay E. Heit; Stephanie L. Finn |
| Issue/Holding: Wisconsin discretionary guideline regime is not governed by the holdings of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005), ¶¶20-24. The latter cases are implicated only when a fact is utilized to support a sentence beyond the statutory maximum; the fact considered by the sentencing court in this instance was within the statutory limits. Further, sentencing facts not only need not be submitted to the jury but also need not be found beyond a reasonable doubt by the sentencing court. |
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The very remedy imposed by Booker
was to make the federal sentencing guidelines discretionary, so
that they operate like the
Wisconsin
scheme. If there’s a
plausible argument that invalidates our scheme it’s not clear what it
would be. On the other hand, efforts to litigate a proof-beyond-reasonable-doubt argument persist under the
new scheme, so that the issue should not be regarded as fully settled; e.g., here, and here. Adverse result, in U.S. v. Grier, 3rd Cir No. 05-1698, 6/6/06 ("That a
defendant does not enjoy the right to a jury trial under Booker
ineluctably means that he or she does not enjoy the right to
proof beyond a reasonable doubt.")
Cert grant in Cunningham v. California, 05-6551 ("Whether California's Determinate Sentencing Law, by permitting sentencing judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments"), unlikely to alter Wisconsin practice, but case should nonetheless be followed closely as it is latest skirmish in this on-going battle. |
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| Review -- Factors -- Proof of (Other Offenses) |
| State v. David G. Straszkowski, 2008 WI 65, affirming summary order |
| For Straszkowski Philip J. Brehm |
Issue/Holding:
The sentencing court may consider
uncharged and unproven offenses, ¶36; id
n. 20:
State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341. |
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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, emphasis added); see also State v. Marhal, 172 Wis. 2d 491, 501-503, 493 N.W.2d 758, 763-764 (Ct. App. 1992) (“Information upon which a trial court bases a sentencing-decision, as opposed to a finding of guilt, need not, of course, be established beyond a reasonable doubt.” Thus, “a sentencing court may consider conduct for which the defendant has been acquitted.”); State v. Bobbitt, 178 Wis. 2d 11, 16-18, 503 N.W.2d 11, 14-15 (Ct. App. 1993) (recognizing validity of rule stated in Marhal).As the dissent points out, neither Leitner nor Bobbit controls on the facts. In this case the sentencing court based disposition on a prior acquittal that it didn’t preside over, and in that respect this holding extends those cases. More importantly, the dissent recites portions of the record omitted by the majority, in which the trial court expresses its belief that Arredondo “got off the hook unfairly and unjustly in the previous case,” and was “absolutely convinced that that verdict was wrong.” ¶¶ 61-62. Does the holding survive the Booker-Blakely lines of cases? Yes, to the extent that a sentencing fact need not be proved beyond reasonable doubt, State v. James L. Montroy, 2005 WI App 230; see also U.S. v. Vaughn, 2nd Cir No. 04-6135-cr, 12/1/05, and cases cited therein ("district courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by the jury verdict, or (3) a mandatory minimum sentence under § 841(b) not authorized by the verdict"). But a sentencing fact must nonetheless be "reliable" as a matter of due process, and it is hard to see how a judge can reliably "find" the existence of something merely by dint of a not guilty verdict. As to the larger question of whether it is permissible to consider at all "relevant acquitted conduct," see U.S. v. Faust, 11th Cir No. 05-11329, fn. 5, 7/21/06 (to effect that every circuit to consider issue holds that sentencing authority to consider acquitted conduct survives Booker; but see also concurrence for contrary view); more recent authority: U.S. v. White, 6th Cir en banc No. 05-6596, 12/24/08 (agreeing with "view expressed by each of our sister circuits that Booker did not alter the Watts position on acquitted conduct"; note, however, closeness of vote and strength of dissent); U.S. v. Mercado, 9th Cir No. 05-50624, 1/22/07 (like effect); U.S. v. Horne, 7th Cir No. 05-4049, 2/5/07. |
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| Review - Factors - Proof: Prior Acquittal |
| State v. Anthony L. Prineas, 2009 WI App 28 |
| For Prineas: Raymond M. Dall'osto, Kathryn A. Keppel |
| Issue/Holding: The sentencing court properly considered a count for which Prineas was acquitted, as well as uncharged, “sexually inappropriate behavior,” ¶28, citing State v. David Arredondo, 2004 WI App 7. |
| This isn’t exactly a non-controversial idea, despite the court’s scanting treatment. True, authority appears to be overwhelmingly to the contrary, e.g., U.S. v. White, 6th Cir en banc No. 05-6596, 12/24/08 (agreeing with “view expressed by each of our sister circuits that Booker did not alter the Watts position on acquitted conduct”); note, however, closeness of vote (9-6) and strength of dissent. Ample commentary on the Web, including here; here; here; and here. |
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| Factors -- Prior Juvenile Adjudications (Where Unrepresented) |
| State v. James L. Montroy, 2005 WI App 230 |
| For Montroy: Jay E. Heit; Stephanie L. Finn |
Issue/Holding:
¶13 Montroy also argues that the PSI improperly included two of his juvenile adjudications, when there was no evidence that he was represented by counsel. [5] The State concedes that the Department of Corrections guidelines mandate that unrepresented juvenile adjudications should not be included in a PSI. However, the State argues, and we agree, that regardless of whether the adjudications should have appeared in the PSI, the sentencing court could properly consider all of Montroy’s juvenile adjudications at sentencing. See Triplett v. State, 51 Wis. 2d 549, 551-52, 187 N.W.2d 318 (1971). Additionally, Montroy’s extensive adult criminal history was a sufficient basis for the court’s conclusion that he was an habitual criminal, and the deletion of two juvenile adjudications would not have likely changed the court’s conclusions on sentencing. Accordingly, Montroy has not met his burden to show prejudice from the two juvenile adjudications improperly included in the PSI. |
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| Review -- Factors -- Public Protection |
| State v. Eduardo Jose Trigueros, 2005 WI App 112 |
| For Trigueros: Eileen Miller Carter |
| Issue: Whether the trial court erroneously exercised sentencing discretion by placing too much weight on the need to protect the public, by placing defendant on probation with one year in the House of Correction, on possession with intent to deliver one gram or less of cocaine, where the State sought a sentence of 38 months including 14 months’ initial confinement. |
Holding:
¶6 The three primary factors a sentencing court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public. State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633, 639 (1984). … The weight given to each of these factors is within the trial court’s discretion. Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457, 461 (1975); see also Gallion, 2004 WI 42, ¶62, 270 Wis. 2d at 566, 678 N.W.2d at 211. |
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| Review -- Factors -- Youthfulness of Defendant |
| State v. Lonnie C. Davis, 2005 WI App 98 |
| For Davis: Pamela Moorshead |
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Issue: Whether the sentencing court erroneously exercised discretion by failing to consider the defendant’s youthfulness (14 years 9 months) at the time he committed the sexual assaults.
Holding: ¶16 A review of the sentencing transcript demonstrates that the trial court did not erroneously exercise its discretion when it sentenced Davis ….(Nor was the sentence cruel and unusual within the 8th amendment, the test being much the same as for an excessive sentence, ¶¶20-23 (10 years’ consecutive on each of 4 sexual assault counts not “shocking” where crimes were “horrendous,” lack of remorse “detestable,” and harm to victim severe and on-going).) |
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| Review -- Factors -- Probation |
| State v. Eduardo Jose Trigueros, 2005 WI App 112 |
| For Trigueros: Eileen Miller Carter |
Issue/Holding:
¶8 Second, Trigueros claims that the trial court erroneously exercised its discretion because it did not consider probation as an option. Again, we disagree. In each case, the sentence imposed shall “call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” McCleary, 49 Wis. 2d at 276, 182 N.W.2d at 519 (quoted source omitted). Here, as we have seen, the trial court considered the appropriate factors. Based upon those factors, including what it characterized in its decision and order denying Trigueros’s motion for postconviction relief as his treatment needs, it determined that “probation … is appropriate,” but that treatment in the Felony Drug Offender Alternative to Prison Program was a “critical part of that.” This was an appropriate exercise of discretion.Note that Trigueros got probation: how can he possibly argue that the trial court failed to consider something that it ordered in the event? It’s true that Trigueros probably would’ve been better off if the judge had sentenced him in line with the State’s recommendation (14 months IC, 24 months ES), and maybe he’s arguing that the underlying sentence (imposed and stayed 24 months IC, 36 months ES) is too long – but that’s not the way the court characterized his argument. Indeed, the court of appeals goes on to reject Trigueros’ argument that the sentencing court ignored the PSI “recommendation that Trigueros be placed on probation,” ¶9. Net result? Perhaps there's less to this decision than meets the eye. |
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Review -- Factors -- Minimum Custody
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: ¶23. McCleary further recognized that "[t]he sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant." Id. at 276. …(Also see State v. Nathan T. Hall, 2002 WI App 108, ¶8, to the effect that the sentence should be the minimum "in situations where the sentencing court has the ability to stack sentences consecutively, ad mortem." The principle recognized in Gallion -- revivified from McCleary more accurately -- is an important generalization of this idea.) |
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| Review – Factors – Seriousness of Offense – Weight Left to Trial Court |
| State v. Corey E. Young, 2009 WI App 22, PFR filed 1/7/09 |
| For Young: Jeffrey W. Jensen |
Issue/Holding:
The trial court, in sentencing
for first-degree intentional homicide, sufficiently explained why it was
assigning extended supervision eligibility of 50 years’ confinement (rather than
the 40 recommended by the State). Weight given each sentencing factor is
committed to the trial court’s discretion, ¶24; the sentencing court in this
instance reached its conclusion only after weighing a number of sentencing
factors, ¶26; the court clarified on postconviction motion that it had “placed
substantial weight on the ‘absolute egregiousness’ of the crime,” and “it is
well within the purview of the trial court’s discretion to assign more weight to
one sentencing factor over another,” ¶28.
¶29 Furthermore, even though the trial court is required to explain its sentencing rationale on the record, it is not required to explain the mathematical breakdown of how each sentencing factor relates to the term of confinement. See State v. Fisher, 2005 WI App 175, ¶¶21-22, 285 Wis. 2d 433, 702 N.W.2d 56. Additionally, where the trial court fails to provide precise reasons for its sentencing determination on the record, it is the duty of the appellate court “‘to search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained.’” Taylor, 289 Wis. 2d 34, ¶21 (quoting McCleary, 49 Wis. 2d at 276). Accordingly, we will not interfere with the discretion of the trial court in passing its sentence and we hold that the sentence is not clearly erroneous. |
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| Review -- Articulation of Factors -- Defendant's Character |
| State v. Donald Odom, 2006 WI App 145 |
| For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial |
| Issue/Holding: Trial court’s discussion of the three primary sentencing factors was adequate, though the court did not explicitly identify those factors, ¶25. |
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| Review – Articulation of Factors by Trial Court |
| State v. Jeremy D. Russ, 2006 WI App 9 |
| For Russ: Martha K. Askins, SPD, Madison Appellate |
Issue/Holding: ¶14 This court observes a strong policy of deferring to the sentencing discretion of a trial court, presuming the sentence to be reasonable unless the defendant can demonstrate from the record that the court acted unreasonably. State v. Mosley, 201 Wis. 2d 36, 43, 547 N.W.2d 806 (Ct. App. 1996). The sentencing court must address three primary sentencing factors, namely, the nature of the offense, the offender’s character, and the need to protect the public, and may also consider any other relevant factors. State v. Harris, 119 Wis. 2d 612, 623-24, 350 N.W.2d 633 (1984). The sentencing court has the discretion to balance the various factors as it sees fit. State v. Jones, 151 Wis. 2d 488, 495, 444 N.W.2d 760 (Ct. App. 1989). The court must, however, explain the reasons for the particular sentence it imposes, providing a “rational and explainable basis” therefor. Gallion, 270 Wis. 2d 535, ¶¶39, 76. The “rational and explainable basis” requirement allows this court to ensure that discretion was in fact exercised. Id., ¶76. |
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| Review -- Factors -- Articulation by Court |
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State v. Nathan T.
Hall, 2002 WI App
108 For Hall: Howard B. Eisenberg, Dean, Marquette Law School Issue/Holding: Because the trial court failed to explain its reasoning, its sentence was an erroneous exercise of discretion. In particular, the trial court exceeded the PSI recommendation (107 years) by approximately 200 years, without explaining either the necessity for sentences so long "that Hall will never live long enough to serve them," or why it was adding 200 years to the PSI recommendation. And, even though the trial court briefly mentioned sentencing factors, it never applied them to Hall's case. ¶¶15-17. (Sentence also held not sustainable on court of appeals' own review of record, court stressing that defendant given effective life sentence for crimes not carrying life. ¶20.) |
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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, we reaffirm McCleary's sentencing standards and reexamine the manner in which they are to be applied. What has previously been satisfied with implied rationale must now be set forth on the record.(The court goes on to hold that the articulated basis for sentence was adequate, where the court considered the gravity of the offense (focusing on the recklessness of Gallion’s conduct); Gallion’s character (including failure to take advantage of treatment options); and need for public protection (including general deterrence of drunk driving).¶¶ 58-61.)
The concurrence provides a handy summary of the holding, ¶90:
Nor is this the only ambiguity; retroactivity is put at issue, with this curiously unrefined pronouncement, ¶8: “Accordingly, we reaffirm the sentencing standards established in McCleary and determine that the application of those standards, demonstrating the exercise of discretion, must be set forth on the record for future cases.” (Emphasis supplied.) In the first place, just which “future” cases does the court have in mind? Again, leave it to the concurrence to explain, at least somewhat, ¶95: “the rule the majority announces today should not be available to defendants sentenced under TIS whose cases are final. See generally, State v. Lagundoye, 2004 WI 4, 268 Wis. 2d 77, 674 N.W.2d 526 (discussing and applying Wisconsin's retroactivity rules for criminal cases).” In other words, the holding should apply to all cases in a direct-review status, regardless of when sentencing actually occurred. This does not, it should be stressed, mean that there was any real chance of a fully retroactive decision – it’s enough to say that retroactivity requires a watershed rule related to guilt or innocence, something not implicated by mere sentencing procedure. See, e.g., Page v. Palmateer, OR SCt S50171, 2/5/04. But this just begs the question: if the court is merely reinvigorating McCleary, ¶4, or reaffirming the sentencing standards established by that case, ¶8, then why is it necessary for this old rule to have but future utility? The answer can only be that the court is doing something more than reinvigorating or reaffirming an old case. And this gets back to the idea that the old requirements are newly required for a valid sentence. That, at least, will be the argument.
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Factors -- Expunged Priors,
§ 973.015 -- Reliance on Underlying Facts
State v. Anthony J. Leitner, 2002 WI 77, affirming 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207 For Leitner: Jefren Olsen, SPD, Madison Appellate Issue: Whether the sentencing court erred in considering the facts of convictions expunged under § 973.015. Holding: ¶46. If information about the underlying facts of an expunged conviction come from a source other than a government record, such as testimony of a witness, the information can be used by the circuit court. It does not make sense to read Wis. Stat. § 973.015 to prohibit a circuit court from considering the underlying facts of an expunged record of conviction if those facts are located in a file of a district attorney or law enforcement agency that is not required to be expunged, but nonetheless permit a circuit court to consider the same underlying facts supplied by another source.(Note: The opinion contains this unqualified statement: "A defendant is entitled to resentencing when a sentence is affected by a circuit court's reliance on an improper factor." ¶42.) |
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| Factors -- Exercising Right to Trial/Evaluation of Defendant's Testimony |
| State v. Garren G. Gribble, 2001 WI App 227, PFR filed |
| For Gribble: Charles B. Vetzner, SPD, Madison Appellate |
| Issue: Whether the sentencing court punished the defendant for going to trial and by stressing the perceived falsity of the theory of defense. |
Holding: ¶66. We do not agree with Gribble's claim that the trial court was punishing him for "defense counsel's lawful efforts to support the defendant's claim of innocence." We are satisfied from our review of the record that the court properly considered Gribble's testimony, and considered the defense strategy only insofar as it was based on that testimony, which was within Gribble's control and which the court believed to be false. This is properly within a court's sentencing discretion. When determining a sentence, the sentencing court has the authority to evaluate a defendant's testimony, determine if it contained "willful and material falsehoods," and assess it in light of all other knowledge gained about the defendant. United States v. Grayson, 438 U.S. 41, 55 (1978). We are satisfied from our review of the record that the court did not consider an improper factor and that it otherwise properly exercised its discretion when imposing its sentence on Gribble. |
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| Review – Factors: Victim’s Religious Beliefs |
| State v. Omer Ninham, 2009 WI App 64 |
| For Ninham: Frank M. Tuerkheimer, Bryan Stevenson, Rebecca Kiley, PFR filed 4/1/09 |
Issue/Holding:
Sentence not based on either
victim’s family’s or defendant’s own religious beliefs, despite judge’s
references to “clash of cultures” and defendant’s need for
“spirituality”:
¶10 Finally, Ninham contends his sentence was based on consideration of an improper factor, Vang’s family’s religious beliefs. The record does not support that contention. At the sentencing hearing Vang’s brother stated that in his family’s Hmong culture, the spirit of a murdered person could not be set free until the perpetrator was brought to justice. Later, when commenting on Ninham’s claim to have developed an interest in Native American religion, the court commented:If the aim is caselaw-free analysis then the court has certainly found success. The leading precedent remains State v. Fuerst, 181 Wis.2d 903, 512 N.W.2d 243 (Ct. App. 1994), which held improper “the sentencing court’s statement that it considered a defendant's possession of religious convictions and regular attendance at church to be mitigating factors,” while noting “that a sentencing court may consider a defendant's religious beliefs and practices only if a reliable nexus exists between the defendant's criminal conduct and the defendant's religious beliefs and practices.” Did Ninham’s sentencing satisfy Fuerst? Draw your own conclusions; you’ll have to, because the court didn’t.I find it incredibly interesting and somewhat significant that not only am I being asked to impose a sentence in this matter, which is my obligation and my responsibility, but I’m being asked to release a soul. I have to comment on that because that’s an interesting clash of cultures, and it’s what we’re all about as a people. We have to deal with those cultures and those clashes as positively as we can.In context, the sentencing court’s reference to the Vang family’s religious beliefs did not constitute reliance on an improper factor. The court was commenting on Ninham’s intolerance, as was demonstrated by testimony from Jeremy Whiting who was in the detention facility with Ninham before Ninham’s trial. Whiting testified that a girl named Ger Quan Lee (phonetic) asked Ninham if he was the one who threw the little Asian boy off the parking ramp. Ninham responded “Yes, I threw that little bastard over the parking ramp. If you want to keep talking shit, I’ll throw your little bitch ass over the parking ramp too.” In this context, the record does not support Ninham’s argument that the court gave improper consideration to the Vangs’ or Ninham’s religious beliefs. |
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| Factors - Interplay with First Amendment-Protected Activity |
| State v. Aaron O. Schreiber, 2002 WI App 75, PFR filed 3/12/02 |
| For Schreiber: William J. Donarski |
| Issue/Holding: "A sentencing court may consider writings and statements otherwise protected so long as there is a sufficient nexus to the defendant's conduct and where the writings are relevant to the issues involved." ¶16, citing Dawson v. Delaware, 503 U.S. 159, 164 (1992). Applying this test, it was proper to take into account Schreiber's continued gang activity while on probation, despite express prohibition; and poetry he'd written extolling "the joy of inflicting violence on others." ¶¶16-18. |
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| Factors – Harm to Victim: Threats While Case Pending, Inability to Attribute to Defendant |
| State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08 |
| For Payette: Robert R. Henak; Amelia L. Bizzaro |
| Issue: Whether threats made to the victims, while the prosecution was pending, to try to dissuade them from testifying were relevant to sentence despite absence of evidence linking threats to the defendant himself. |
Holding: ¶41 The court process is a predictable consequence of conduct which results in a criminal charge. Hence, if a victim is affected specifically because the victim becomes a witness, a court can reasonably consider that effect on the victim as part of the overall sentencing calculus. Jones, 151 Wis. 2d at 496. Here, the threats both victims reported were directly related to their intent to testify in court in these proceedings; they were not involved in any other litigation. The duration of the threats was substantial; telephone calls for three months is not an isolated incident. The threats were reported to the police. The property damage followed the verbal threats and involved some damage predicted by the threats, although another victim suffered the burning of her property. Both victims reported the property damage to the police before the sentencing. The combination of these factors makes it unlikely that these events were fabricated by the victims simply to garner sympathy from the court. Thus, we are persuaded that there was no error if the sentencing court had considered the effect of these events, which were reported to the police and which directly related to the victims’ intentions to testify in these cases, for the limited purpose of considering the impact of these proceedings on the victim witnesses.If the court had considered the effect. The trial court “made no mention whatsoever of the threats” when it imposed sentence; and, subsequently on postconviction motion, “the trial court disavowed any reliance on the threats,” ¶39. So, did the trial court actually rely on the threats? Because if not, then there’s no issue anyway. The court of appeals doesn’t say. The court either rejects the trial court’s disavowal (unlikely; see ¶44) or else sees fit to reach out for an issue that is really just an abstraction. We like to call that latter possibility judicial activism. Just saying. Besides, the court goes on to say, the “ample factual basis” for the sentence makes “any error” harmless, ¶49. So we’re clear about this: allusions to threats against the victims weren’t considered by the sentencing court; references to the threats were relevant nonetheless because they relate to crime impact on the victim; and, the references were harmless because the defendant deserved what he got anyway. Harmless if the trial court didn’t rely, harmless if the trial court did: Neat! (Minor rhetorical quibble: what’s with “factual basis” for the sentence? It’s almost as if the court is discussing plea withdrawal in the context of challenge to sentence. ¶44.) |
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| Factors -- victim's criminal record - due process right to accurate sentencing information |
| State v. Yolanda M. Spears, 227 Wis.2d 495, 596 N.W.2d 375 (1999), affirming State v. Spears, 220 Wis.2d 720, 585 N.W.2d 161 (Ct. App. 1998). |
| For Spears: Richard D. Martin. SPD, Milwaukee Appellate. |
| Issue/Holding: Spears killed the "victim" (Young) after he assaulted her and took her purse. She entered an Alford plea to a homicide charge. At sentencing, a dispute arose as to whether Young actually used force in taking her purse (no dispute, though, that he took it, or that it was, in the sentencing court's view, "an assaultive offense against the defendant" that provoked the killing). The victim's "family questioned whether Young had violently assaulted Spears." This contention created "the only disputed question for the purpose of this appeal." Spears sought to bolster her view of the events, i.e., Young actually used force against her, by introducing Young's criminal record, which included "a history of violent crimes." The circuit court ruled this evidence irrelevant. From the lead opinion (three votes): A sentencing court must consider three primary factors, including gravity of the offense. ¶20. Young's criminal history was relevant to gravity: "Information that would have tended to clarify the events leading to that crime should have been considered relevant by the court. ... The victim's criminal record is such evidence." ¶23. Though this seems like a very broad statement, the holding is - as the court cautions - probably much narrower. Young's record was relevant to a complete understanding of the event; and, Spears also had a right to use it to refute statements by Young's family claiming that his non-violent character meant that he hadn't used force against her. ¶¶24-29. "In conclusion, we hold that where a victim's criminal record supports a defendant's version of a crime, the gravity of which crime is a sentencing factor, it should be admitted as evidence at the defendant's sentencing hearing. Of course, once such evidence is admitted, the weight to be given any of the factors the circuit court considers in sentencing is fully within its discretion." ¶30. (The court of appeals, it should be noted, held that Spears had a right to refute claims of Young's virtuous nature, but the supreme court declines to address that issue. Fn. 1.) Justice Bablitch casts the fourth and deciding vote, and because his concurrence represents the narrowest position on which four justices would agree, the holding may be found there. See Marks v. US, 430 U.S. 188, 193 (1977) (holding is position taken by those justices concurring in judgment on narrowest grounds). He explicitly disputes the idea that a victim's criminal record is admissible just because it might support the defendant's view of the crime. ¶32. Instead, he "read(s) the majority as holding that when the victim or his or her supporters disputes the provocative circumstances leading up to the crime by misstating a material fact about the victim, the defendant does not have to stand helplessly by in the face of the lie." ¶33. Young's family lied in portraying him as someone who "would never hurt a woman." "A defendant has a right to correct a victim's lie about a material fact[.]" ¶37. (Presumably, this lie was "material" because it went to the incident itself, though the concurrence doesn't spell this out.) Go to Brief |
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Factors -- Victim's Good Character 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: ¶63. Gallion's next claim on appeal is that the circuit court erred in placing undue emphasis on the character of the victim. …The court of appeals had distinctly held "that a victim's character may be considered as part of one of the three primary sentencing factors: gravity of the offense," stressing that this view is a"logical corollary" to victims' rights legislation. "Taking this case as an example, it is impossible to convey the loss suffered by Vanessa Brown's family members, friends, employer, and the community generally without commenting on Brown's fine character. It is precisely because of her outstanding character that the loss is so great." 2002 WI App 262, ¶¶16-17. The supreme court doesn't go that far, simply assigning consideration to the sentencing court's general discretionary authority. |
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Factors -- Refusal to Identify Accomplice State v. Christopher Kaczynski, 2002 WI App 276, PFR filed 11/20/02 For Kaczynski: Eugene Kaluzny Issue/Holding: ¶9. It has long been the law in Wisconsin that, unless a defendant's rights against self-incrimination are implicated (and Kaczynski makes no claim that they are), it is "entirely proper" for a trial court "to consider on sentencing, the defendant's cooperativeness as manifested by his refusal to name his accomplices." Holmes v. State, 76 Wis. 2d 259, 276, 251 N.W.2d 56, 64 (1977). See also State v. Olson, 127 Wis. 2d 412, 428-429, 380 N.W.2d 375, 383 (Ct. App. 1985) (refusal to name marijuana supplier). Roberts, upon which the trial court relied, also recognized that a defendant's refusal to cooperate with law enforcement is an appropriate sentencing consideration ....Note: Though it might be said the holding is narrowly based on the trial court's rejection of defendant's sincerity (which is more finding of fact than exercise of discretion), it seems to be more broadly based on approving this factor regardless of how real the danger the danger of retaliation. See ¶11. |
| Kaczynski pleaded guilty and, as noted, didn't raise a self-incrimination claim. In the distinct but potentially related instance of a defendant convicted after trial, whose sentence is aggravated for failure to express sufficient remorse, compare Scales v. State, 64 Wis.2d 485, 496, 219 N.W.2d 286 (1974) (sentencing court's attempt to coerce confession of guilt violated 5th amendment), with State v. Baldwin, 101 Wis.2d 441, 457 304 N.W.2d 742 (1981) (consideration of lack of remorse / refusal to admit guilt proper, except when, as in Scales, it is given overwhelming weight). See also Ketchings v. Jackson, 6th Cir. No. 03-1054, 4/19/04 (sentencing court's express linkage of potential for rehabilitation with admission of guilt was not mere expression of concern for lack of remorse but with unwillingness to admit guilt, and as such violated 5th amendment). |
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| Review -- Factors -- Jail Credit as Affecting Length of Sentence |
| State v. Eric S.
Fenz, 2002 WI App
244 For Fenz: Jacob W. Gobel Issue: Whether the sentencing court may take into account the amount of jail credit to be awarded, in the narrow instance where the court wants to assure a term of imprisonment sufficiently lengthy to allow exposure to a treatment program. Holding: ¶10. Fenz argues that Klimas and Struzik established a "bright line" rule for circuit courts to follow when applying credit for time served against a sentence. While we agree that Klimas and its progeny established a general rule for applying sentence credit, the circuit court's decision here does not run afoul of that Klimas/Struzik rule. The circuit court determined that Fenz needed to receive institutional sexual offender treatment and that completion of that program required at least six years incarceration. In order to accomplish this very specific incarceration goal, it was necessary for the court to consider those factors that would influence the amount of time Fenz actually would spend in prison. This determination required consideration of the amount of presentence credit. Accordingly, we conclude that the circuit court properly deviated from the Klimas/Struzik rule because it articulated a specific time-related incarceration goal and that goal required the court to consider the presentence credit due Fenz. |
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| Review -- Articulation of Factors -- Ruminations about Defendant’s Mental Health |
| State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 |
| For Sherman: John J. Grau |
Issue/Holding: The sentencing
court’s observations to the effect that the defendant was “a sick man” didn’t
amount to “unsupported findings about his mental health:
¶14 At Sherman’s postconviction hearing, the court indicated that its comments did not reflect medical diagnoses, but were instead common sense observations based upon facts in the record. … The court noted, “It does not take a psychologist to look at all the facts established in this sentencing record by presentences, by other information the Court had available to it, and conclude that Mr. Sherman is a sick and maladapted man.” Upon our review of the record, we discern no error in the court’s comments.The defense had adduced mental health expert opinion (the opinion provides no details), which the sentencing court was entitled to reject, given the principle that the weight given sentencing factors is committed to the judge’s discretion, ¶15. |
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| Review -- Articulation of Factors -- Consideration of Sentences in Other, Similar Cases (Individualized Sentencing) |
| State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 |
| For Sherman: John J. Grau |
Issue/Holding: ¶15 Sherman claims the only evidence about his mental health came from his expert, Dr. Gerald Wellens. Sherman claims the court failed to consider his expert’s opinion. However, at sentencing, the court expressly considered Wellens’ opinion. The court noted that Wellens only examined Sherman for a short period of time and that his perceptions of Sherman were plainly outweighed by contradictory testimony of people who were more familiar with Sherman. See State v. Thompson, 172 Wis. 2d 257, 264-65, 493 N.W.2d 729 (Ct. App. 1992) (weight given to each sentencing factor is within the trial court’s discretion). The contention that the court failed to consider Wellens’ opinion is unsupported by the record.What if the sentencing court had refused to consider at all the data about other sentencings? Would the individualized-sentencing principle have sheltered this refusal? The court doesn’t say. But nor does the court say that this data couldn’t be considered. Refusal to give sentencing inputs “more weight” is one thing; refusal to consider them at all is another. |
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| Review -- Articulation of Factors -- Defendant's Character |
| State v. Donald Odom, 2006 WI App 145 |
| For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial |
| Issue/Holding: Trial court’s acknowledgement that Odom had been a productive citizen but that his numerous crimes “stood in stark contrast to that past” adequately accounted for Odom’s “positive attributes,” ¶24. |
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| Review -- Factors -- Defendant's Age |
| State v. Wallace I. Stenzel, 2004 WI App 181 |
| For Stenzel: Martin E. Kohler |
| Issue: Whether the sentencing court placed insufficient weight on defendant’s elderly age as a mitigating factor, and the likelihood he would not survive the confinement portion of his sentence. |
Holding: ¶12. We agree with Stenzel that his age is a factor that the circuit court may consider as an aggravating or mitigating factor when imposing sentence. See Gallion, 270 Wis. 2d 535, ¶43 n.11. In this case, the court did consider Stenzel's age. ... |
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| Review -- Factors -- Defendant's Life Expectancy |
| State v. Wallace I. Stenzel, 2004 WI App 181 |
| For Stenzel: Martin E. Kohler |
| Issue: Whether the sentencing court placed insufficient weight on the likelihood defendant would not survive the confinement portion of his sentence. |
Holding: ¶17. Stenzel faults the court for not assigning any relevancy to his life expectancy. He argues that he was seventy-eight years old at the sentencing and the eight years of initial confinement is very close to the 10.4 years of his life expectancy, thus, virtually guaranteeing that he will serve a life sentence. We repeat that it is within the discretion of the circuit court to determine what is relevant to the sentence. Perez, 170 Wis. 2d at 143. Generally, courts that have addressed similar arguments have not been inclined to consider life expectancy as a relevant factor in sentencing. See Cristina J. Pertierra, Note and Comment, Do The Crime, Do The Time: Should Elderly Criminals Receive Proportionate Sentences? 19 Nova L. Rev. 793, 812-818 (1995) (collecting cases). |
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| Review -- factors |
| State v. Richard D. Yakes, 226 Wis.2d 425, 595 N.W.2d 108 (Ct. App. 1999). |
| Holding: Defendant's adultery, failure to pay child support, and status as a bankrupt "were all appropriate factors relating to Yakes' character and personal history." |
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| Review -- Factors -- Character -- Rehabilitative Needs |
| State v. Crystal L. Bizzle, 222 Wis. 2d 100, 585 N.W. 899 (Ct. App. 1998) |
| For Bizzle: Charles B. Vetzner, SPD, Madison Appellate |
Issue/Holding:Bizzle argues that the sentencing court erred in concluding that she required extensive rehabilitation. ... First, her successful completion of an educational program, after sentencing, is not evidence that the court acted unreasonably or was not justified in concluding that she required extensive rehabilitation. A sentencing court is not required to look into the future .... |
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| Factors -- Use of Pretrial Psychiatric Evaluation |
| State v. Joshua Slagoski, 2001 WI App 112, PFR filed 4/27/01 |
| Slagoski: Christopher William Rose |
| Issue1: Whether the results of a competency examination, which suggested that defendant presented a homicide-suicide risk, amounted to materially inaccurate information used at sentencing. |
Holding: ¶9 We conclude that it is entirely reasonable that a mental competency examination designed to address a defendant's ability to understand the proceedings and assist counsel may also address issues of future dangerousness. If the evaluation establishes dangerousness, a court may reasonably consider it when gauging the need for public protection. This is wholly consistent with Wisconsin law which requires the sentencing court to consider all relevant available information pertaining to the seriousness of the offense, the character of the offender and the need for public protection....Issue2: Whether sentencing use of pretrial psychiatric evaluations violated the defendant's self-incrimination and assistance of counsel rights. Holding: ¶15 It is clear that Slagoski waived his Fifth Amendment rights when, through counsel, he initiated a psychiatric evaluation and placed his mental condition into controversy by entering pleas of not guilty and not guilty by reason of mental disease or defect. Furthermore, his own attorney requested Palermo for the psychiatric evaluation. Because Slagoski commenced the process for the pretrial evaluations and submitted to the examinations, he cannot now claim that its use in sentencing compelled him to testify against himself. (Court also explicitly rejects argument that defendant entitled to specific notice that evaluations could be used at sentencing, because "the defense was reasonably put on notice that the clinical impressions of both doctors would be highly relevant to the issue of future dangerousness, a legitimate sentencing consideration.") |
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| Procedure -- Articulation of Primary Factors in Setting PED |
| State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126 |
| For Leighton: Daniel Snyder |
| Issue/Holding: In setting parole eligibility date trial court need not separately refer to primary factors used in imposing sentence. ¶¶52-53. |
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| Factors -- Defense Right to Present -- Limited by Relevancy |
| State v. Shomari L. Robinson, 2001 WI App 127, 629 N.W.2d 810, PFR filed 5/7/01 |
| Robinson: Joseph L. Sommers |
| Issue: Whether the trial court impermissibly limited the defense presentation at sentencing. |
| Holding: The only statements that must be allowed at sentencing are those of the defendant and counsel, and of the prosecutor and victim. ¶19, citing § 972.14. Receipt of all other data is discretionary, conditioned on relevance to sentence, § 972.14(3)(b). The evidence sought to be introduced in this case had little or no relevance, and was properly excluded. ¶19. State v. Spears, 227 Wis. 2d 495, 596 N.W.2d 375 (1999) distinguished, on ground of relevance. |
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Factors -- Guidelines |
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| Guidelines – Failure to Consider – Harmless, Where Sentence Concurrent to Other, Unchallenged Sentence |
| State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 |
| For Sherman: John J. Grau |
Issue/Holding: Sentencing failure
to consider applicable guidelines, § 973.017(2)(a), was harmless error, at least
where the controlling sentence was untainted by the error:
¶9 We conclude that the circuit court’s failure to consider the sentencing guidelines for the two Wis. Stat. § 948.02(2) counts was harmless error. The sentences on all counts were concurrent, and the sentences for the two guidelines counts were less than the controlling sentence of fifteen years’ initial confinement and fifteen years’ extended supervision rendered for repeated sexual assault of a child. Because we uphold the controlling sentence by rejecting Sherman’s other claims below, Sherman ’s substantial rights were not affected by the court’s failure to consider the sentencing guidelines.Sherman asserts a line of cases indicating that multiple counts represent a sentencing “package,” such that when one count is vacated the entire sentencing package is “unbundled” with resentencing required on all counts, even when they were unchallenged; that concept is fine in theory, the court says, but in practice applies only where consecutive sentences have been imposed: ¶11 Sherman relies upon cases holding that courts may reconsider sentences on other counts where one count has been reversed on appeal. See United States v. Shue, 825 F.2d 1111, 1113-14 (7th Cir. 1987); United States v. Mancari, 914 F.2d 1014, 1021-22 (7th Cir. 1990). In these cases, the justification for permitting resentencing was to allow the trial court to effectuate its original sentencing intent. Shue, 825 F.2d at 1113; Mancari, 914 F.2d at 1022. The original sentencing intent in these cases was disrupted because consecutive sentences were involved, the removal of which altered the overall sentencing structure. Shue, 825 F.2d at 1112, 1114; Mancari, 914 F.2d at 1015, 1021-22.If you’re thinking this means, Heads they win, tails I lose, you’d be right. If you get partial relief on consecutive sentences, the State can seek resentencing on the unaffected counts to make sure the status quo ante is restored; if you get partial relief on concurrent sentences, that’s the end of the line (or, as this case illustrates, you don’t even get that far but instead have a harmless error bar thrown in your face). |
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| Guidelines, § 973.017(2)(a) – § 973.017(2)(a) – Reviewability – Mandated Consideration |
| State v. Vincent T. Grady, 2007 WI 81, reconsideration denied, 2007 WI 125, affirming 2006 WI App 188 |
| For Grady: Donna L. Hintze, SPD, Madison Appellate |
Issue/Holding:
¶16 We first address whether Wis. Stat. § 973.017(10) precludes appellate review of a circuit court's consideration of an applicable sentencing guideline pursuant to Wis. Stat. § 973.017(2)(a). Wisconsin Stat. § 973.017(10) provides the following:The court of appeals had held “that §973.017(10) precludes appellate review of the circuit court’s alleged noncompliance,” 2006 WI App 188, ¶4, so that holding is now clearly overruled.(10) Use of Guidelines; No right or basis for Appeal. The requirement under sub. (2)(a) that a court consider sentencing guidelines adopted by the sentencing commission or the criminal penalties study committee does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines, and there is no right to appeal a court's sentencing decision based on the court's decision to depart in any way from any guideline.… |
Issue/Holding2:
…The long and short of it seems to be that “a sentencing court must consider an applicable guideline, not explain it,” ¶42. You might think that adequate regard for the “applicable guideline” would require both completion of the guideline worksheet and also consideration of the guideline’s recommended range—nonetheless, the court rejects any such requirement, ¶¶38-39. The court stresses on reconsideration, 2007 WI 125: when a circuit court's consideration of sentencing guidelines is reviewed, the reviewing court may not supplement the sentencing record with evidence outside the sentencing hearing for any sentencing occurring after September 1, 2007. Whether a circuit court has met its § 973.017(2)(a) obligation in a sentencing after that date must be determined from the record of the sentencing hearing. |
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| Factors: Sentencing Guidelines |
| State v. Donald Odom, 2006 WI App 145 |
| For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial |
| Issue/Holding: A trial court is not required to follow the sentencing guidelines, but only to explain a departure; the trial court’s explanation for departure (defendant’s lengthy record and reoffending upon release from confinement) was an adequate explanation, ¶26. |
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| Factors -- Guidelines (& Sixth Amendment) |
| State v. James L. Montroy, 2005 WI App 230 |
| For Montroy: Jay E. Heit; Stephanie L. Finn |
| Issue/Holding: Wisconsin discretionary guideline regime is not governed by the holdings of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005), ¶¶20-24. |
|
No commentary seems necessary, except to say that
the very remedy imposed by Booker
was to make the federal sentencing guidelines discretionary, so
that they operate like the
Wisconsin
scheme. If there’s a
plausible argument that invalidates our scheme it’s not clear what it
would be. UPDATE: Note, though, 2/21/06 grant of cert in No. 05-6551, John Cunningham v. California, raising question of whether trial judge can make sentencing findings that place the defendant outside a "presumptively reasonable" term. |
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| Factors: (PAC-Related, District-by-District) Sentencing Guidelines, Validity |
| State v. Patty E. Jorgensen, 2003 WI 105, affirming unpublished opinion of court of appeals |
| For Jorgensen: Charles B. Vetzner, SPD, Madison Appellate |
| Issue/Holding1: Sentencing guidelines for specified offenses (namely: §§ 346.63 (1) (b) or 346.63(5) [PAC offenses]) are within the authority granted by § 346.65(2m)(a). ¶¶16-18. However, the guidelines do not apply to an offense under § 346.63(1)(a) (OWI), therefore “it is inappropriate for a circuit court to simply apply the guidelines as the sole basis for its sentence in a § 346.63(1)(a) case.” ¶27. Nonetheless “in exercising its broad discretion in the area of sentencing, a court may refer to the sentencing guidelines for PAC offenses in sentencing a defendant convicted of OWI. These violations are similar and one cannot argue that the factors relevant to one offense are not a relevant consideration in sentencing for the other.” Id. |
Issue/Holding2:
District-based sentencing guidelines
§ 346.65(2m)(a) violate neither equal protection nor due process:¶38. Jorgensen argues that the guidelines increase disparity, but as noted by the court of appeals, she has provided no evidence of such an effect. Instead, she asserts that the court of appeals in Smart concedes the point, with its acknowledgement that the statute "creates different classes of people" that might be subject to different standards. See Smart, 257 Wis. 2d 713, ¶6. We disagree with this assertion. In fact, as this court has recognized: "Equal protection does not deny a state the power to treat persons within its jurisdiction differently; rather the state retains broad discretion to create classifications so long as the classifications have a reasonable basis." McManus, 152 Wis. 2d at 131.A mandatory guideline scheme, which has the effect of allowing a presumptive sentence to be increased on the basis of facts neither submitted to the jury nor proved beyond reasonable doubt, violates the 6th amendment. U.S. v. Booker, US SC No. 04-104, 1/12/05. |
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Factors -- Restitution Payments |
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| Factors: Basing Length of Extended Supervision Term on Making Restitution Payments |
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State v. Tony G. Longmire,
2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate Issue: Whether the sentencing court erroneously exercised discretion, or violated equal protection, in setting an excessive length of extended supervision so as to ensure that the defendant satisfies the restitution order. Holding: “¶39. We conclude that the trial court's sentencing rationale, taken as a whole, did not constitute an erroneous exercise of discretion. A court, after giving consideration to the relevant sentencing factors, may give disproportionate or controlling weight to a single factor.” Nor did “a lengthy term of supervision in order to enable Longmire to pay a sizeable restitution amount” violate equal protection. ¶41. |
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Factors -- Seriousness of Offense |
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| Factors: Seriousness of Offense |
| State v. Pablo Cruz Santana, 220 Wis. 2d 674, 584 N.W.2d 151 (Ct. App. 1998) |
| For Santana: Steven P. Weiss, SPD, Madison Appellate |
Issue/Holding: In passing sentence, the trial court addressed each of the primary factors, but chiefly relied on the seriousness of the offense and its continuing impact on the victim. ... |
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See also Double Jeopardy -- Sentence |
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Review -- "Finality" of Sentence Based on Defendant's Fraud State v. Ary L. Jones, 2002 WI App 208 For Jones: Arthur B. Nathan Issue/Holding: ¶14. The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void and double jeopardy will not bar subsequent resentencing to place the defendant in the position he or she would have been in if the fraud or corruption had been exposed at the time of the original sentence. ...Here, the defendant's lie was a substantial factor in the original sentence and the trial court therefore had authority to resentence. ¶18. (Court distinguishes between puffery/innocent-bragging/exaggeration, and fraud. ¶20. Court also says that the fraud need not amount to a new factor. Id. n. 2.) |
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| Review -- "Finality" of Sentence -- Vacating after Sentence Commences |
| State v. Guy R. Willett, 2000 WI App 212, 238 Wis.2d 621, 618 N.W.2d 881 |
| For Willett: Susan E. Alesia, SPD, Madison Appellate |
| Issue: Whether the trial court had authority to change its sentences from concurrent to consecutive to a separately imposed sentence, four months later, after concluding that its sentencing was based on an erroneous understanding of the law. |
| Holding: Although the trial court clearly wanted its sentences to run consecutive to a separately imposed sentence, the court (erroneously) believed that it lacked that authority, and therefore imposed its sentences concurrent with the other sentence. When the error was pointed out, the court modified the sentence structure four months later, so that its sentences would run consecutive to the other sentence. Given that Willett was four months into his sentence and that the trial court (even if based on misconstruction of its authority) imposed a valid, concurrent sentence, "a legitimate expectation of finality" vested in that sentence, and double jeopardy therefore precludes its increase. ¶6. |
| To like effect, see U.S. v. Robinson, 6th Cir. No. 03-4593, 5/21/04 (though federal sentencing court can at any time correct "clerical error" in judgment, this authority doesn't extend to "the vindication of the court’s unexpressed sentencing expectations, or for the correction of errors made by the court itself"). |
| Go To Brief |
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| Harmless Error, Generally |
| State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 |
| For Sherman: John J. Grau |
Issue/Holding:
¶8 Wisconsin’s harmless error rule is codified in Wis. Stat. § 805.18 and is made applicable to criminal proceedings by Wis. Stat. § 972.11(1). [3] See State v. Harvey, 2002 WI 93, ¶39, 254 Wis. 2d 442, 647 N.W.2d 189. The harmless error rule applies to errors at sentencing. See Tiepelman, 291 Wis. 2d 179, ¶26. The standard for evaluating harmless error is the same whether the error is constitutional, statutory, or otherwise. Harvey, 254 Wis. 2d 442, ¶40. An error is harmless if it does not affect the defendant’s substantial rights. Wis. Stat. § 805.18. The defendant has the initial burden of proving an error occurred, after which the State must prove the error was harmless. See Tiepelman, 291 Wis. 2d 179, ¶3.A somewhat truncated statement of the harmless error rule. Harvey isn’t a sentencing-error case, but does hold that the State, as beneficiary of the error, must prove that the error didn’t contribute to the result. Tiepelman is a sentencing case, and holds that the defendant need not show prejudicial reliance by the sentencing court on the erroneous matter. By analogy, Sherman should be able to argue it’s enough to show erroneous failure to consider a guideline. The kicker, though, is that Sherman’s sentencing structure gave controlling effect to a sentence unaffected by the error, and so the court goes on to hold that the guideline error was necessarily harmless. The impact likely goes beyond the immediate context: the holding may well extend to any challenge to one sentence controlled by another, unchallenged sentence. Can it be extended still farther, to bar challenge to a conviction where reversal would have no impact on the overall sentence? That’s something rather different, and raises in a nutshell the “concurrent sentence doctrine,” which Wisconsin has long rejected, Austin v. State, 86 Wis.2d 213, 218, 271 N.W.2d 668 (1978): The concurrent sentence doctrine is a means by which federal courts have declined to review convictions where the sentences run concurrently with the sentence for a valid conviction. …. We have never adopted that doctrine, and we twice specifically refused to apply it where the companion conviction has not been affirmed on appeal. … Following those cases, we likewise refuse to apply the doctrine to bar our review of these two convictions. |
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| Review - Cruel & Unusual - Life without Parole, Juvenile Offender |
| State v. Omer Ninham, 2009 WI App 64 |
| For Ninham: Frank M. Tuerkheimer, Bryan Stevenson, Rebecca Kiley, PFR filed 4/1/09 |
Issue/Holding:
¶3 A sentence to life without the possibility of parole for a crime committed by a fourteen-year-old does not per se violate the constitutional prohibition against cruel and unusual punishment. …Nor is the sentence of life without parole harsh and excessive, ¶¶7—9. Although the court has informed us on a number of occasions that “(t)he test for whether a sentence violates the Eighth Amendment and whether a sentence was excessive are virtually identical in Wisconsin,” State v. Lonnie C. Davis, 2005 WI App 98, ¶21, this opinion treats the inquiries as entirely separate. The opinion was originally recommended for non-publication; not clear why it was published. Are there a large number of 14-year-olds doing life without parole, so you’d want to inhibit repetitive litigation on whether Roper v. Simmons (8th A prohibits death penalty for juveniles) applies to non-capital dispositions? Perhaps, but apart from that concern, and though you’d never know it from the opinion, this is an issue that has acquired sufficient momentum nationally to eventuate in cert grants, at last with respect to life without parole for juveniles convicted of non-homicide offenses, Graham v. Florida and Sullivan v. Florida. And, if the Court ends up applying a Roper analysis then the issue may well remain viable in the homicide context. |
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| Review - Harsh and Excessive – Sexual Assault |
| State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09 |
| For Berggren: Robert G. LeBell |
Issue/Holding:
Initial confinement totaling 36, and supervision
of 17, years on sexual assault-related convictions wasn’t harsh and
excessive:
¶48 Berggren’s sentence was not shocking, nor does it violate the judgment of reasonable people concerning what is right and proper under the circumstances. As the State points out, the aggregate sentence of fifty-three years is less than one-fourth of the statutory exposure Berggren faced if the maximum sentences for the charges he pled guilty to had all been imposed consecutively. It was within the trial court’s discretion to impose an initial confinement period, upon the completion of which Berggren will be seventy-six years old. See State v. Stenzel, 2004 WI App 181, ¶¶10-20, 276 Wis. 2d 224, 688 N.W.2d 20 (upholding what the defendant described as a “de facto life sentence”); State v. Ramuta, 2003 WI App 80, ¶¶22-26, 261 Wis. 2d 784, 661 N.W.2d 483 (upholding the sentence imposed where the defendant raised an analogous argument). |
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| Review - Harsh and Excessive – Sexual Assault |
| State v. Anthony L. Prineas, 2009 WI App 28 |
| For Prineas: Raymond M. Dall'osto, Kathryn A. Keppel |
| Issue/Holding: Prineas was convicted on 2 counts of 2nd-degree sexual assault, and acquitted on another 4; the PSI recommended 6-8 years, but he was sentenced to 10 IC, 10 ES and a concurrent 30-year term of probation; though a first-time offender, the disposition is upheld against a claim of harsh and excessive sentence, ¶¶29-34. |
| Purely as a point of curiosity: the sentencing judge was the subject of a recall campaign some years ago because of his perceived leniency in a sexual assault case, e.g., State v. Pablo Cruz Santana, 220 Wis. 2d 674, 584 N.W.2d 151 (Ct. App. 1998); the recall effort was unsuccessful but apparently the judge took the lesson to heart. |
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| Review – Excessiveness – Sexual Contact, Closeness in Age between Defendant and Minor Victim |
| State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07 |
| For Thexton: Kirk B. Obear |
Issue/Holding: Sentence of 13
years (3 IC; 10 ES) for sexual contact was not harsh and excessive,
notwithstanding closeness in age between defendant and underage victim:
¶12 As to excessiveness, Thexton notes that he was close in age to the victim. The sexual contact between the two began when he was seventeen and she fourteen and ended when he was eighteen and she fifteen. He points out that the sexual encounters between him and the victim did not involve force and argues that these facts, along with his other positive attributes, militate in favor a shorter sentence. However, it is clear that the court considered the relative gravity of the offenses as a mitigating factor in imposing the sentence that it did, but also considered Thexton’s other conduct, including that leading to his previous conviction and that which occurred while he was on probation. We note that the maximum sentence for Thexton’s offense at the time it was committed was thirty years, with twenty years of prison time. [7] A sentence of thirteen years, three of them in prison, does not strike us as disproportionate to the offense here. See State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983) (“A sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”).Curiously, the court doesn’t even pay lip service to the idea that a sentence is presumptively not harsh and excessive, see, e.g., State v. Michael A. Grindemann, 2002 WI App 106, ¶¶29-33. Indeed, the court doesn’t even suggest that it’s affording deference at all to the sentencing result. Whether that’s because the principle is so obvious, or whether the court is tentatively moving toward more rigorous review, remains to be seen. |
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| Review -- Harsh & Excessive, Generally |
| State v. Jack W. Klubertanz, 2006 WI App 71, PFR filed 4/14/06 |
| For Klubertanz: Martha K. Askins, SPD, Madison Appellate |
| Issue: Whether attack on a sentence as harsh and excessive is limited to factors present at the time of sentencing, or may instead be based on post-sentencing events such that as in this instance a claim that the defendant had been sexually assaulted in prison after sentencing might support a harsh-and-excessive sentence reduction. |
Holding:
¶40 We conclude that the circuit court’s authority to review its decision to determine whether the sentence it imposed is unduly harsh does not include the authority to reduce a sentence based on events that occurred after sentencing. Rather, in deciding whether a sentence is unduly harsh, the circuit court’s inquiry is confined to whether it erroneously exercised its sentencing discretion based on the information it had at the time of sentencing. A circuit court’s authority to modify a sentence based on events that occurred after sentencing is defined by “new factor” jurisprudence.The court goes on to say that “when a defendant claims that the conditions of confinement have rendered a sentence unduly harsh, the remedy is not modification of the sentence, but, if the requisite standards are met, a change in the prison conditions,” ¶43. What the court doesn’t say, but ought to be kept in mind, is that a sentence within the maximum is presumptively style="not harsh and excessive, State v. Michael A. Grindemann, 2002 WI App 106, ¶¶29-33; and, more problematically, that “(t)he test for whether a sentence violates the Eighth Amendment and whether a sentence was excessive are virtually identical in Wisconsin,” ¶21, State v. Lonnie C. Davis, 2005 WI App 98. In other words, if you don’t have an 8th amendment claim, don’t bother making a harsh-and-excessive argument. Why, then, do we even allow harsh and excessive claims? They are surely illusory. If the sentence falls inside the maximum it’s presumptively OK; and if it falls outside the maximum then it’s automatically commuted anyway, § 973.13, without regard to sentence modification. If the sentence can’t be described as unconstitutional within the 8th amendment then it can’t be reduced on the theory it was harsh and excessive; but if it can be, then that only means it must be reduced as a violation of the cruel and unusual clause. On other points of sentence review: Gallion is all but a dead letter; and new factors are virtually never found—see discussion here. Is this overly cynical? Consider the view expressed by the very experienced Judge Dykman in concurrence, ¶¶45, 47: “Putting today’s decision and Grindemann together, it is apparent that in reality, there is nothing left of the concept recognized in State v. Tuttle, 21 Wis. 2d 147, 151, 124 N.W.2d 9 (1963), that appellate courts have the power to review sentences to determine whether the trial court erroneously exercised its discretion in sentencing. … The result is that we give trial courts nearly unlimited and practically unreviewable power to set sentences, but those sentences, once set, cannot be changed. We believe in individualized justice, but stop with a judgment of conviction.” Indeed, Judge Dykman ought to have the final word, if at some length, because he puts it so well: ¶48 Our opinions offer the hope that we are reviewing sentencing decisions. While that is literally true, the majority’s opinion and Grindemann camouflage the reality that review of sentencing is now akin to hoping that Lucy will finally let Charlie Brown kick the football. There is something unsettling about courts offering the appearance of hope where hope does not exist. |
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| 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." Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). |
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| Review - Excessiveness - Maximum Doesn't "Shock Public Sentiment" |
| State v. Aaron O. Schreiber, 2002 WI App 75, PFR filed 3/12/02 |
| For Schreiber: William J. Donarski |
| Issue/Holding: The sentencing court properly considered the three primary sentencing factors -- gravity of offense, defendant's character, need to protect public -- and the weight assigned each is delegated primarily to the trial court. (Schreiber's argument that the sentencing court shouldn't have considered his gang affiliation, because he'd already been punished for that by having his probation revoked, is dismissed out of hand.) The maximum sentence here doesn't "shock public sentiment." ¶¶14-15. |
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| Review -- Undue Harshness -- Presumption of Correctness |
| State v. Michael A.
Grindemann, 2002 WI App 106, PFR filed 5/23/02 For Grindemann: Leonard D. Kachinsky |
| Issue/Holding: A sentence well within the maximum (here, 44 years out of a possible 110) is presumptively not unduly harsh. ¶¶29-33. |
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| Review -- Excessiveness - 30 years for 1st offense. |
| State v. David J. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999). |
| For Gardner: Steven P. Weiss, SPD, Madison Appellate |
| Gardner's 30-year sentence is upheld as a proper exercise of discretion. |
| Go To Brief |
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| Review -- Harsh & Excessive – Sexual Assault |
| State v. Germaine M. Taylor, 2006 WI 22, affirming unpublished summary order |
| For Taylor: Martha K. Askins, SPD, Madison Appellate |
Issue/Holding: TIS sentence of 18 years (12 in, 6 out) for child sexual assault, consecutive to 5 year indeterminate sentence for similar offense, was not harsh and excessive, notwithstanding PSI recommendation of 12 years (6 in, 6 out), nonviolent nature of act, and closeness of victim to age of consent:
¶35 Although we recognize the accuracy of many of Taylor's assertions, we are not persuaded that in light of all the facts and circumstances of this case, the circuit court erroneously exercised its discretion under the formidable standard. |