SENTENCING
Updated 12/14/09

Usage note: The case summaries are organized topically, as in listed in the outline immediately below this note. Links are provided by all major topics and for many sub-topics. Of course, you may also scroll through the case summaries, which are immediately below the outline. Note that, because under Wisconsin law "probation" is technically not a "sentence," cases dealing with probation-related issues are discussed separately under "Probation / Extended Supervision"

TOPICAL OUTLINE
Allocution (Also see discussion here)
Incarceration Release Programs ("Boot Camp"; "ERP")
Consecutive Sentences -- Authority to Impose
Costs
DNA Collection, § 973.047, and Surcharge, § 973.046
(For fourth amendment issues, go here)
Enhancers
Expunction
  • § 973.015, Not Applicable to Prosecution/Law Enforcement
Fines
  • Ability to Pay
  • Attorney's Fees, Distinguished From
  • Discretion
  • Guidelines
  • Restitution Payments as Affecting Length of ES
Mandatory Penalty
  • Presumptive Minimum -- Truth-in-Sentencing
  • § 961.50, Suspension/Revocation Operating Privilege
Modification/Review
Presentence Report
Restitution
  • Ability to Pay
  • Damages
    • "Natural and Probable Consequences" (Causation)
      • Lost Profits
      • Remoteness of Harm
      • Securities Fraud
      • Resisting Arrest
    • Nexus Required; Otherwise, Defendant Entitled to Hearing
    • Special Damages
      • Attorney's Fees
      • Correction of Shodddy Work
      • Definitions
      • "Loss of Use"
      • "Lost Productivity"
      • Security System
      • Sick Leave
      • Victim's Investigative Expenses
  • Defenses
    • Accord/Set-Off
    • Civil Settlement
    • Contributory Negligence
  • Discovery
  • Hearing
    • Evidence
  • Limitations on Trial Court Authority
    • Bail-Bond Disbursement
    • Causation and Special Damages
    • Delegate to DOC
    • Disbursement from Prison Wages
    • Federal Preemption -- ERISA "Gifted" Funds
    • Insurance Company
    • Prior Fine
    • Recharacterizing as Condition of Probation
    • Refund of Impermissible Restitution
    • Unrelated crime
    • Time Limits
  • "Victim"
    • Bail-Bond Obligor
    • "Family Member"
      • Mother
      • Aunt
      • Step-Parent
    • Governmental Entity
      • County DHS
      • Police
      • School
        • Injuries During Apprehension
        • "Collateral Expenses": "Stop Sticks"
        • Overtime Costs
        • Crime Prevention Unit
    • Victim as Potential Participant in Crime
  • Waiver of Objection
Sentence Credit
  • Generally -- "Custody" and "Escape"
  • Concurrent Sentences
  • Conditional Jail Time
  • Consecutive Sentences
    • Prison Time, Following Reconviction
  • Custody in Another State
  • Delayed Report Date
  • DIS Confinement
  • Electronic Monitoring
  • Extended Supervision Hold / Revocation
  • Home Detention
  • Juvenile Commitment
  • Parole Revocation
  • Read-In
  • Reconfinement
  • SVP (Ch. 980) Custody
Probation: Go to Probation, PLRA
CASE SUMMARIES

ALLOCUTION
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.<

¶59      A trial court has considerable latitude in reasonable control of the courtroom and the conduct of parties and of witnesses before it. Wis. Stat. § 906.11(1); State v. Shanks, 2002 WI App 93, ¶10, 253 Wis. 2d 600, 644 N.W.2d 275 (“trial court has the power to alter courtroom procedures in order to protect the emotional well-being of a child witness”). We conclude that the limited restriction imposed here, based on the facts known to the trial court at the time, was a reasonable exercise of the trial court’s discretion to control the manner of proceedings before it. Neither Payette’s statutory nor constitutional rights were violated by this minor restriction during a small part of the sentencing hearing, nor has he demonstrated that he was in any articulable way prejudiced by it.

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. ...

First, we conclude that because § 972.14(2), Stats., clearly establishes a statutory right of allocution and because the trial court did not follow the mandate of § 972.14(2), the trial court committed a statutory error. Second, we observe that the United States Supreme Court has held there is no federal constitutional right to allocution. See Hill v. United States, 368 U.S. 424, 428 (1962). However, because of conflicting case law in Wisconsin, it is unclear whether there is a due process right to allocution under the Wisconsin Constitution.15 We decline to resolve the conflicting case law on this issue because we conclude that even if there is a due process right to allocution, the trial court's constitutional error denying that right was harmless.

...

... Because Lindsey was subject to a mandatory sentence of life imprisonment without parole, there is no possibility that anything Lindsey could have said at sentencing would have affected his sentence. Thus, there is no reasonable possibility that the trial court's failure to ask Lindsey if he wanted to speak contributed to Lindsey's sentence. ...

Also see discussion here.
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.
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.

INCARCERATION RELEASE PROGRAMS

(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)

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). …

¶10      Once the trial court has made an eligibility determination, the final placement determination is made by the DOC —the statute provides that, if an inmate meets all of the program eligibility criteria, the DOC “may” place that inmate in the program. Wis. Stat. § 302.045(2). Contrary to Schladweiler’s contention, it is not the sentencing court’s function to classify an inmate to a particular institution or program; this authority lies solely with the DOC. See State v. Lynch, 105 Wis. 2d 164, 168, 312 N.W.2d 871 (Ct. App. 1981) (Once a prison term is selected, the trial court may not order specific treatment; control over the care of prisoners is vested by statute in the overseeing department.). Thus, even when a sentencing court decides that a defendant is eligible for the CIP, the final placement decision is vested with the DOC.

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:
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.)

¶14      Wisconsin Stat. § 302.05 sets forth no criteria which the DOC must use in its determination of whether to approve an inmate’s petition. Section 302.05 does identify those inmates who are not eligible for the ERP because they either were sentenced under one of the statutes listed in § 302.05(3)(a)1. or were participants in the intensive sanctions program. Wis. Stat. §§ 302.05(3)(a)1. and (d). Because inmates may be incarcerated under multiple sentences from multiple counties, the State argues, and we agree, that the DOC is in the best position to determine, and inform the court, whether a specific inmate is ineligible for the ERP because of the statutory exclusions. This approach is consistent with Wis. Stat. § 972.15(2b) which requires that the PSI preparer tell the court whether the defendant is statutorily eligible for the ERP under § 302.05(3)(a)1. It is also consistent with Truth-In-Sentencing, [6] in which the legislature specifically took away from the administrative agencies the ability to grant parole or other early release and placed within the discretion of the courts the amount of extended supervision for which a defendant would be eligible, as well as the eligibility of a defendant to participate in any early release programs. If the legislature intended to give to the courts the responsibility of determining whether an individual is eligible for participation in a program, it is incongruous to read § 302.05(3)(e) as returning that discretion to the DOC, and essentially preventing the courts from ruling on an otherwise eligible defendant. Accordingly, we conclude that the DOC approval required by § 302.05(3)(e) is merely a determination that the petitioner is not statutorily excluded from eligibility for ERP, and the exercise of discretion as to whether the inmate should be included in ERP eligibility is a matter for the trial court. Here, the DOC did not provide the information required; in fact, the DOC provided no information at all with respect to whether Johnson was eligible for the ERP.

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.
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.   
 [6] Lynch does not contend that, if he cannot participate in the earned release program, he is denied all treatment for substance abuse.
Substantive due process challenge rejected for same reason, given that the tests are indistinct, ¶21.
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."

¶18. With this interpretation in mind, we determine that the sentencing court exercised its discretion in accordance with the authority granted to it by Wis. Stat. § 973.01(3m) when it imposed a four-year waiting period on Lehman's CIP eligibility. The court considered the severity of the crimes, character of the offender, the interests of the community, and the need to protect the public when crafting Lehman's sentence. This is precisely the sort of judicial discretion contemplated in the creation of sentencing policy in Wisconsin.

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.
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.

¶10      Moreover, the sentencing transcript here reveals the court more than adequately explained its decision. When Owens asserted that he had a drug problem and needed assistance, the court observed that treatment had been made available to him for years and yet he never availed himself of those opportunities. Accordingly, to the extent Owens complains the court failed to assess the likelihood of his success in the ERP, it is evident the court inferred, from his past apathy and failure to seek help, that Owens was neither sincere about wanting substance abuse treatment nor likely to succeed in the treatment program.

¶11      The court then determined that, given Owens’s criminal record and the particularly aggravated nature of the robbery, [4] protection of the community was the paramount sentencing objective, although punishment was also important. … In other words, the court determined the ERP to be inconsistent with the protection and punishment objectives and would not provide sufficiently “close rehabilitative control.” This is not an erroneous exercise of discretion.


 [3]  Because the statute specifies that the eligibility determination is part of sentencing discretion, and because sentencing factors are well-established, we decline Owens’s invitation to “come up with factors judges might use” for ERP eligibility decisions.
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.
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:
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.

He is incorrigible. I believe he is where he belongs. And he should stay there for as long as the Court has sentenced him. 

The State argues that the court’s statements here demonstrate that it exercised its discretion to deem Montroy ineligible. 

¶18      Montroy replies that the court’s statement was not a sufficiently specific determination of his eligibility for the program. He contends that “[t]he only finding the trial court made as to eligibility was that Mr. Montroy was not eligible because of his sexual conviction.” We disagree. While the court did not specifically state that Montroy was ineligible for the program, it is apparent that the court did not think Montroy should be able to decrease his term of imprisonment. See State v. Gallion, 2004 WI 42, ¶49, 270 Wis.  2d 535, 678 N.W.2d 197 (exercise of sentencing discretion is not a matter of uttering “magic words”).

¶19      Additionally, at the April 5, 2004, sentencing hearing, the court did, in fact, make a ruling on Montroy’s eligibility for the program. At that time, the court stated, “[Y]ou do not qualify for Challenge Incarceration or for Earned Release credit because of the many convictions on your drug involvement.” …

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.
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.

CONSECUTIVE SENTENCES -- AUTHORITY TO IMPOSE
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. ...

...

Subsequent amendment to § 973.15, Stats., has changed that in one respect. In State v. Thompson, 208 Wis.2d 253, 559 N.W.2d 917 (Ct. App. 1997), we considered whether § 973.15(2) authorizes a court to impose a sentence consecutive to a previously imposed but stayed sentence where probation had not yet been revoked. We concluded that the plain language of § 973.15(2) permitted this ....

We conclude that § 973.15(2), Stats., does not permit a court to impose a sentence consecutive to a term of probation. We reach this result because we are persuaded that nothing in the language of § 973.15(1) or (2) or its legislative history indicates that “sentence” is intended to include the imposition of probation. For the same reasons, we conclude that § 973.15(2) does not permit a court to order a sentence to be served consecutive to jail time imposed 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.
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).
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.)
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.


COSTS
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.
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).

¶10      Helsper argues the minimum safeguard should be a finding of ability to pay prior to all commitments for unpaid fee obligations.…

¶11      We agree.  Fuller requires that “those upon whom a conditional obligation is imposed [not be] subjected to collection procedures until their indigency has ended and no ‘manifest hardship’ will result” from payment. Fuller, 417 U.S. at 46. A defendant who lacks a hearing, notice of the right to request one, or representation is likely to be committed regardless of ability to pay the attorney fee obligation.

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.
 [4]   Our holding is based on the constitutional requirements for attorney fee recoupment statutes under Fuller v. Oregon, 417 U.S. 40 (1974), and only the portion of the court’s order authorizing commitment for Helsper’s attorney fee obligation is before us. We offer no opinion on the proper considerations for the court in a Wis. Stat. § 973.07 commitment action based on obligations other than unpaid attorney fees.
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
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.
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.
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....
¶26 Accordingly, because of the inadequacies in this record, we hold only that our decision in Ferguson applies to the determination of taxable 'fees of officers allowed by law' under Wis. Stat. § 973.06(1)(a). This requires a determination of whether the expenses associated with the execution of orders to produce are ordinarily charged to and payable by another or are merely internal operating expenses of a governmental unit. If the former, they are taxable, provided they are 'allowed by law,' which requires a determination of whether the actual assessments were consistent with Wis. Stat. § 814.70. The constitutional issues in this case cannot be resolved because there is no record upon which to resolve them. Therefore, we reverse the court of appeals and remand this case to the circuit court for further proceedings consistent with this opinion.
Go to Brief
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
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.

¶76 Campbell welcomed the court-appointed standby counsel and agreed to pay his attorney fees.  By welcoming court-appointed standby counsel and heavily utilizing him throughout the proceedings, Campbell effectively converted Attorney Martin into his co-counsel. …

¶78      In this case, Campbell agreed to pay the attorney fees of standby counsel, satisfying the first test. In addition, the court informed Campbell of his obligation to reimburse the county for the fees and he made extensive use of Attorney Martin, satisfying the second test. Under either test, therefore, Campbell is responsible for Attorney Martin's fees, subject only to his ability to pay.

Because the circuit court ordered counsel fees without regard to ability to pay, Campbell is entitled on remand to an indigency hearing, ¶¶79-80.
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

DNA Collection, § 973.047, and Surcharge, § 973.046
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.
(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).

¶10      Thus, in exercising discretion, the trial court must do something more than stating it is imposing the DNA surcharge simply because it can. We also do not find the trial court’s explanation that the surcharge was imposed to support the DNA database costs sufficient to conclude that the trial court properly exercised its discretion. To reach such a conclusion would eliminate the discretionary function of the statute as a DNA surcharge could be imposed in every single felony case using such reasoning. We are not going to attempt to provide a definite list of factors for the trial courts to consider in assessing whether to impose the DNA surcharge. We do not want to limit the factors to be considered, nor could we possibly contemplate all the relevant factors for every possible case. In an effort to provide some guidance to the trial courts, however, we conclude that some factors to be considered could include: (1) whether the defendant has provided a DNA sample in connection with the case so as to have caused DNA cost; (2) whether the case involved any evidence that needed DNA analysis so as to have caused DNA cost; (3) financial resources of the defendant; and (4) any other factors the trial court finds pertinent.

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 …
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
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.

¶6 WISCONSIN STAT. § 973.046 gives the trial court discretion to impose a DNA surcharge on persons convicted of most felonies, but mandates the surcharge upon conviction for violation of WIS. STAT. §§ 940.225, 948.02(1) or (2), or 948.025. …

¶7 Jones contends that the purpose of the surcharge is to fund the databank and the trial court cannot order the surcharge without ordering the DNA sample. … The language of the statute plainly states that the trial court has the discretion to order a DNA surcharge upon the entry of a judgment in this felony case. Nothing in § 973.046(1g) requires a DNA sample to be collected before the court can order the payment of the surcharge.

¶11 The trial court also noted that it would vacate the surcharge if the defendant could show that he previously paid a surcharge in another case. Jones argues that WIS. STAT. § 973.046(1g) does not give the trial court authority to impose a surcharge for a sample collected in connection with an unrelated case. However, as indicated by the statute, the trial court was able to exercise its discretion and to impose a DNA surcharge regardless of whether Jones gave a sample in this case. Under the circumstances present here, therefore, we conclude that the trial court properly exercised its discretion in imposing a DNA surcharge in this case. Accordingly, we affirm.

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.

Fourth Amendment

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.

Sentencing Discretion

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.

Finality of Sentence

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.

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)
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.)

ENHANCERS

Enhancers -- Allocation, Between "Base" Offense and Enhancement

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."

Enhancers -- Applicability

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.

Enhancers -- Collateral Attack

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. …

¶7        Hammill argues that he made a prima facie showing that he did not knowingly and voluntarily waive his right to counsel. Hammill’s argument focuses on distinguishing his case from our decision in State v. Stockland, 2003 WI App 177, 266 Wis. 2d 549, 668 N.W.2d 810. In Stockland, the defendant collaterally attacked a prior OWI conviction. However, Stockland only produced a partial transcript of his plea colloquy. …

¶8        Hammill attempted, but was unable, to procure a transcript due to the destruction of the court reporter’s notes. [3] For this reason, we do not conclude, as we did in Stockland, that the mere absence of a transcript defeats Hammill’s collateral attack. However, Hammill still carries the burden of making a prima facie showing. …

¶11      On this record, we conclude Hammill has failed to make a prima facie showing that he did not knowingly and voluntarily waive counsel. His testimony does not contain facts demonstrating he did not know or understand information that should have been provided to him. See Ernst, 283 Wis.  2d 300, ¶25. Rather, Hammill simply does not remember what occurred at his plea hearing. Having failed to make a prima facie showing, Hammill’s collateral attack fails.

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.

¶16      The State responds that Hammill’s challenge to the Village of Cameron conviction is barred by Hahn. … Because Hammill’s challenge to the Village of Cameron conviction is not grounded on an alleged violation of his right to counsel, the State argues, Hammill may not collaterally attack the Village of Cameron conviction based on a lack of subject matter jurisdiction.

¶17      Hammill replies that Hahn did not specifically address whether a void judgment could be used to enhance a sentence. We disagree. Hahn is a broad, bright-line rule. Since Hammill’s challenge to his Village of Cameron conviction is not based on the denial of his right to counsel, the challenge is barred by Hahn.

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).
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.
Enhancement – OWI Prior, Collateral Attack – Procedure
State v. Alan J. Ernst, 2005 WI 107, on certification
For Ernst: Jeffrey W. Jensen
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.

¶26      Applying the above principles to the facts of this case, we hold that Ernst's attempt to initiate a collateral attack failed. … Ernst made no mention of specific facts that show that his plea was not a knowing, intelligent, and voluntary one.  Instead, Ernst simply relied on the transcript and asserted that the court's colloquy was not sufficient to satisfy Klessig. … Since this was a collateral attack, the lack of specific facts resulted in a failure to establish a prima facie case that Ernst did not knowingly, intelligently, and voluntarily waive his right to counsel. …

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.
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.

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: …

¶17 In regard to his first argument, Deilke argues to us, as he did in the circuit court, that since he did not move to withdraw his pleas, but merely attacked the convictions due to the lack of a valid waiver of counsel, the convictions were not invalidated; they simply cannot be used for purposes of sentence enhancement. … We conclude that the result of Deilke's successful collateral attack on the convictions was to invalidate the convictions. Accordingly, we address the remainder of our discussion to Deilke's two other arguments.

¶18 Deilke asserts that none of his plea agreements contained the express condition that the convictions would be used for penalty enhancing purposes or that he could not collaterally challenge those convictions. In the absence of such express provisions, Deilke contends he cannot have breached the plea agreements. … Without the penalty-enhancing feature, the State claims the convictions are virtually useless in trying to keep impaired drivers off the road.

¶19 Additionally, in decisions that have reviewed the contention that a plea agreement has been breached, the conduct that was held to be a breach never was explicitly mentioned as an act a party to the agreement was constrained from taking. … Accordingly, we conclude that the lack of a specific instruction to Deilke in regard to a subsequent attack of the convictions, is not dispositive of any issue before us.

¶22 We note that analyzing the parties' contentions under contract principles also causes us to conclude that Deilke materially and substantially breached the plea agreement. … Accordingly, we conclude that Deilke's collateral attack here also prevented the State from receiving all it bargained for when it dismissed multiple charges in exchange for one OMVWI conviction which has, at its core, repeater consequences designed to remove drunk drivers from Wisconsin highways.

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.
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.)
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) ….

¶15. In addition to the law of Pickens, our review will keep in mind the reality that in high volume traffic and misdemeanor courts it is common practice to give the recitation of constitutional rights at the start of proceedings and then incorporate that recitation by reference as each individual defendant's case is called. We approve of the circuit courts' employment of this efficiency measure.

¶16. Given the law under Pickens, our approval of the efficiency measure practiced in high volume traffic and misdemeanor courts and our examination of the record, we hold that Stockland failed to meet his prima facie burden because he has failed to provide, as he failed at the circuit court level to provide, all of the relevant transcript information on the issue. Stockland provided what amounts to a partial transcript because the transcript he provided picks up at the point his individual case was called. That partial transcript reveals that there is, in fact, other potentially available, relevant and important information as to whether Stockland was properly advised of the advantages and disadvantages of pro se representation under Pickens.

¶17. The partial transcript indicates that the circuit court delivered Stockland his rights "en masse" (i.e., explained to all the defendants assembled in the courtroom that day their rights), and included the drawbacks of waiving those rights. It further indicates that Stockland verbally acknowledged a receipt and understanding of those rights and, in the face of this understanding, it indicates that he chose to proceed without a lawyer.

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).

¶23. Here, the court specifically referred to some portion of the record it had made that day when it referenced its earlier en masse delivery of rights. Thus, just as the circuit court accurately assessed the defendant's understanding of the rights he would be waiving in Moederndorfer, the record implies that the circuit court accurately assessed Stockland's understanding of the rights he would be waiving.

¶24. There is compliance with Bangert as long as there is a record that the defendant was present when rights were given en masse and was personally questioned by the court to establish that he or she understood the rights, had no questions about the rights and waived the rights. Here, the court complied with Bangert when it made a record of Stockland's presence during the earlier en masse delivery of rights that same day and made a record of Stockland's verbal acknowledgement that he understood the rights he was waiving and he did not need any of these rights repeated.

(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? )
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."
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.
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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Enhancers - Construction (Vis a Vis Element)

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?


Enhancers -- Multiple Enhancement

Enhancers -- Multiple Enhancers -- §§ 346.65(2), 939.62
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.)
Enhancers -- Multiple Enhancers -- §§ 939.62(1)(b), 961.48(2)

State v. Paul R. Maxey, 2003 WI App 94
For Maxey: Douglas I. Henderson
Issue/Holding: A sentence may be enhanced by both the general repeater provision of § 939.62(1)(b) (1999-2000) and § the specific repeat drug offender provision of § 961.48(2) (1999-2000), given the rationale of State v. Richard W. Delaney, 2003 WI 9:

¶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.)

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.
¶14 Here, the maximum for Quiroz’s Class D felony crime was five years. With the dangerous weapon penalty enhancer, this five-year penalty could be increased by no more than four years, WIS. STAT. § 939.63(1)(a)3, for a new maximum penalty of nine years. We now add the gang-related penalty enhancer to the nine-year maximum penalty. Because the maximum term of imprisonment is more than five years, it can be increased by up to five years, WIS. STAT § 939.625(1)(b)2, for a maximum penalty of fourteen years.”
(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.)

Enhancers -- Particular Statutes

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.

¶13   The State bears the burden of establishing prior offenses as the basis for the imposition of enhanced penalties under Wis. Stat. § 346.65(2). State v. Wideman, 206 Wis. 2d 91, 94, 556 N.W.2d 737 (1996). We conclude that the State has failed to establish that Carter’s suspension was the result of a refusal and therefore has failed to establish that the suspension counts under Wis. Stat.
§ 343.307(1)(e) for purposes of penalty enhancement under § 346.65(2).

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).7
7   The Court explained later in its opinion that, not only does "recidivism `... not relate to the commission of the offense' itself," but in addition, "there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof." Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).
Apprendi fever: Catch it (here)!
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.

¶53 We further note that this court recently held that a presentence report, which listed the defendant's crime and his or her date of conviction, was sufficient to "constitute an official report that would serve as prima facie proof of habitual criminality" for purposes of a penalty-enhancement statute. State v. Bonds, 2006 WI 83, ¶48, 292 Wis. 2d 344, 717 N.W.2d 133. We are satisfied that the same is true in the present case, because the presentence report listed LaCount's period of actual confinement on the prior conviction in question. [10] We are satisfied that the presentence report, combined with the certified judgment of conviction, was a judicial record, not an executive branch record, even though it was prepared by the Wisconsin Department of Corrections. As a result, we are satisfied that the circuit court's finding that LaCount was a habitual criminal did not violate LaCount's right to a jury trial, because the relevant information could be readily determined from a judicial record, here the presentence report.

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:
[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.
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.

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.
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).
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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.

¶82      Thus, the legislature seeks to deter a broad swath of violent or potentially violent crimes by increasing penalties for those crimes that occur within 1,000 feet of school premises. One possible reason for such a law is to create a safe, or at least safer, zone around our schools where the population of children is likely higher. Achieving safety zones around our schools is a legitimate governmental interest. Children should feel safe at school and, if possible, on their way to school. The legislature seeks a safety zone in order to create a safe haven that children may not have further away from school. Moreover, a safety zone around schools fosters a good learning environment.

¶83      The 1,000-foot perimeter is rationally related to the government's interest. One thousand feet is a reasonable distance around schools so as to further the legislature's goal of creating safety zones around our schools. The legislature has clearly concluded that children congregate on or near school premises and are more likely to live near school premises. While one may argue that any number of feet is to some extent arbitrary in that the legislature chose a particular distance, the 1,000-foot perimeter is not patently arbitrary. Moreover, it is rationally related to the government's interest.

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.
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.
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).

¶19      In fact, the statutory language of Wis. Stat. § 940.32 explicitly demonstrates that our Wisconsin legislature has determined that a “previous conviction for a violent crime” is an element of the stalking offense proscribed in § 940.32(2m)(a). Section 940.32 carefully sets out different fact situations which aggravate the offense of stalking. While we acknowledge that some of the scenarios are status-type factors, as Warbelton submits, many of the scenarios are not. We also consider it significant that, while penalty-enhancer statutes give the sentencing court the discretion to increase or not to increase the penalty, § 940.32(2m)(a) does not give such discretion. We conclude that the legislature meant subsec. (2m)(a) to convey that a “previous conviction for a violent crime” is a substantive element of the Class H felony stalking offense, not a penalty enhancer.

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.
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.
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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. ...

In contrast, the repeater provisions form a second, entirely different group of penalty enhancers. This group includes the penalty enhancers for habitual criminality, under 939.62, Stats.; second and subsequent offense drunk driving under § 346.65(2), Stats.; and repeat drug offenses under § 161.48, Stats., 1993-94. These repeater penalty enhancers do not concern the factual circumstances surrounding the underlying crime, and do not change the substantive nature of the charged offense. Unlike the first group of penalty enhancers, repeat offender status merely increases the penalty for the charged offense without changing the substantive nature of the charged offense.

... Therefore, Wisconsin law does not require proof of Miles's prior drug conviction at trial simply because his prior conviction converts his offense from a misdemeanor to a felony. Thus, we conclude that Wisconsin case law did not require the State to prove Miles's prior drug conviction at trial beyond a reasonable doubt.

(Nor, the court goes on to hold, does the due process clause require such proof.)
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. ...
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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.
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....

¶7. We conclude, as did the court of appeals, that the defendant's constitutional challenge to the "two strikes" law fails. 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 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).

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.
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.
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).

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.
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).
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.
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.
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.
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.”)
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.)
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?
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.
Six year penalty enhancer                                  (72 months)
+ Underlying maximum term of imprisonment     (36 months)
(Pursuant to Wis. Stat. § 973.01(2)(c))             ___________

108 months                    

108 months x 75% = 81 months maximum amount of confinement
¶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.
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.
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:
(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).

¶20. We agree with the State that Jackson's penalty enhancer was not subject to bifurcation and was correctly added to the underlying maximum term of confinement. …

¶30. In sum, based upon Volk and Wis. Stat. § 973.01(2)(c), together with its legislative history, we determine that the legislature did not intend sentencing courts to bifurcate penalty enhancers between confinement and extended supervision or add them to the term of imprisonment pursuant to Wis. Stat. § 939.62, as Jackson advances. Rather, it intended courts to add them to the maximum term of confinement for each underlying offense, thereby increasing the overall term of imprisonment by the same amount.

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 here. ¶¶22-24. It therefore should be consulted on matters involving TIS construction.
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.
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.)

Enhancers -- Pleading

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.

(2) If there has been no repeater allegation made prior to the court's acceptance of a plea, and the defendant does not re-plead after the charging document has been amended, sentence enhancement is not permissible upon conviction. Gerard, 189 Wis.  2d at 513-14; Martin, 162 Wis.  2d at 902-03; Campbell, 201 Wis.  2d at 791-92.

(3) With leave of court, and after a plea has been accepted, charging documents that were sufficient before the plea was accepted may be amended with regard to the initial allegations concerning a defendant's repeater status so long as the defendant is not prejudiced by the amendment. [9] Stynes, 262 Wis. Gerard, 189 Wis. Campbell, 201 Wis.  2d at 793.

(4) When a post-plea amendment to allegations earlier made concerning a defendant's repeater status does not compromise the sufficiency of notice of the potential maximum sentence a defendant faces, no prejudice occurs. Stynes, 262 Wis.  2d 335, ¶¶31-32; Gerard, 189 Wis.  2d at 516; Campbell, 201 Wis.  2d at 793; Wilks, 165 Wis.  2d at 110.


 [9]  In order to give sufficient notice of the potential maximum penalty that a defendant faces due to allegations of habitual criminality, a complaint must specify the date or dates of conviction, the substantive crime or crimes of which the defendant was convicted, and whether each conviction was a felony or a misdemeanor. State v. Stynes, 2003 WI 65, ¶15, 262 Wis.  2d 335, 665 N.W.2d 115 (citing State v. Gerard, 189 Wis.  2d 505, 515-16, 525 N.W.2d 718 (1995).
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.…

¶34. In sum, because the complaint, in referring to the predicate 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 conclude that the complaint provided Stynes with the required notice of the predicate convictions on which his repeater status was based.

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.

¶33. Although we disagree with the ultimate conclusion of the court of appeals, we certainly agree with its sentiments and its urging of prosecutors and trial courts to adopt practices which, if followed, would have obviated the need for this appeal.…

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.
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.
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.

¶25. In addition, we can see no purpose served by interpreting the statute to prevent a defendant from agreeing to add repeater allegations to an information as part of a plea agreement. Since a defendant need not agree to that amendment, presumably a defendant will agree only when he or she perceives it is in his or her interest to do so. For example, in this case, postconviction counsel acknowledged to the trial court that the amendment to the information benefited Peterson. The requirement that guilty and no contest pleas be knowing, voluntary, and intelligent ensures that defendants will not be coerced into agreeing to the addition of repeater allegations that the State could not add unilaterally. ...

¶27. For the above reasons, we conclude that the legislature did not intend in Wis. Stat. § 973.12(1) to prohibit defendants from agreeing, after arraignment and entry of a not guilty plea and as part of a plea agreement, to amend charging documents to add repeater. Accordingly, the repeater penalty portions of Peterson's sentences on Count 1 and 2 are not void and the trial court did not err in denying Peterson's motion to vacate those portions of his sentences.

Go To Brief
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. …

¶32      … In addition, the "prejudice" that Bonds complains of is the adverse effect on a potential defense to the repeater allegation. Campbell concludes this is insufficient to set aside an amendment to a repeater allegation because it does not affect a defendant's ability to assess the potential maximum sentence to which he may be subjected. Campbell, 201 Wis. 2d at 793.  We agree with Campbell.


Enhancers -- Proof

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).
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).
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.

¶49      Accordingly, we are persuaded that the reasoning of bold; Saunders cannot be analogously applied to a CCAP report.  CCAP records are not like uncertified copies of judgments in that CCAP reports do not purport to be identical to the court records, as photocopies do. The agreement to which all CCAP users are asked to adhere specifically warns that CCAP provides no warranty of accuracy for the data in its reports. We cannot, under those circumstances, consider the contents of a CCAP report to rise to the level of reliability sufficient to establish prima facie proof that a defendant has a prior qualifying conviction. In addition, Bonds did not stipulate to using a CCAP report as the "mode of proof" for habitual criminality. [11] He asserted before the circuit court that the State had not proved habitual criminality beyond a reasonable doubt; he has continued to do so throughout the appellate process. Therefore, we conclude that by relying solely [12] on the CCAP report, and without other evidence that could prove Bonds's repeater status beyond a reasonable doubt, the State did not offer sufficient evidence to constitute prima facie proof that Bonds was an habitual criminal. Accordingly, the State did not meet its burden to prove habitual criminality.


[11]  The concurrence/dissent is incorrect to assert that the repeater allegation is proved because of Bonds's "admission" in regard to a qualifying conviction. Concurrence/Dissent, ¶111. Although we do not agree that Bonds admitted a prior felony conviction, we point out that in order for a defendant to admit a prior conviction for purposes of proving habitual criminality, the defendant's admission must contain specific reference to the date of the conviction and any period of incarceration. State v. Zimmerman, 185 Wis.  2d 549, 557, 518 N.W.2d 303 (Ct. App. 1994). Bonds made no statement that could establish the date of a prior felony conviction.
 [12]  We do not exclude the use of a CCAP report as a tool to facilitate a review with the defendant at sentencing of defendant's past history of criminal convictions.
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.
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).

¶6 However, State v. Liebnitz, 231 Wis. 2d 272, 288, 603 N.W.2d 208 (1999), directs us to consider "the totality of the record." The complaint against Watson alleges that he is a repeater and that he "plead guilty on May 9, 1997, to felon in possession of a firearm in case no. 96-CF-713 before Judge Montabon." This allegation includes both the nature and the date of the prior conviction and put Watson on notice that the State was seeking a repeater charge and that this charge was based, at least in part, on the felon in possession allegation. We therefore conclude that the plea hearing colloquy, in which the circuit court explained the effect of Watson's admission, together with the complaint, which alleged the nature and date of Watson's previous conviction, establish that Watson "fully understood the nature of the repeater charge." Liebnitz, 231 Wis. 2d at 275.

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.
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.
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.

Enhancers -- Serial Litigation Bar

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.

¶19      Instead, Mikulance mounts a constitutional challenge to the procedure the court used to accept his no contest pleas. In his most recent postconviction motion, Mikulance argues that the circuit court failed to inform him of the maximum penalties for the substantive charges of battery, disorderly conduct and unlawful use of a telephone and of the penalty enhancements attributable to his conviction as a habitual criminal. Mikulance cannot use Wis. Stat. § 973.13 to raise this type of claim. Therefore, the narrow exception articulated in Flowers for claims properly brought under § 973.13 does not apply.


Enhancers -- Timing of Qualifying Offense

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....

¶15 Therefore, we agree with the State that the more generalized concept of a criminal sentence, which takes in both imprisonment and parole supervision, applies in a § 939.62(2), STATS., setting. Thus, the five-year period under the statute is properly expanded by any actual confinement time that is related to the sentence.

Go To Brief
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.

¶16      The DIS statutory scheme contemplates a flexible program of incrementally greater privileges. Nonetheless, it is deemed to be a state prison, it is run as a correctional institution, and it considers participants such as Pfeil to be prisoners subject to an escape charge in the event they fail to comply with an imposed condition.  …

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.

Enhancers -- Waiver of Objection

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. …

¶52      However, … on the record in Saunders, the State did provide sufficient evidence to meet its burden of proof. [13]

¶53      Here, the CCAP report was not sufficient to constitute prima facie proof of Bonds's repeater status. Therefore, not making a specific objection when evidence that is insufficient to constitute prima facie proof of a prior qualifying conviction is presented is not a waiver. Bonds did object to the sufficiency of the evidence the State presented, arguing that the State had not proved habitual criminality beyond a reasonable doubt. For the reasons explained above, a CCAP report does not come within our holding in regard to waiver set out in Saunders. Because the only evidence submitted was the CCAP report, we conclude that Bonds's objection is sufficient to defeat the State's contention that he waived his objection to proving habitual criminality with a CCAP report. Therefore, we conclude that the repeater portion of Bonds's sentence must be vacated.

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.
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.

¶11. We decline to conclude that Flowers holds otherwise. As noted above, Flowers addressed only the applicability of Escalona-Naranjo to Wis. Stat. § 973.13 motions and did not address waiver in the context of evidentiary rulings. Were we to interpret Flowers as precluding application of waiver in this context, we would in essence be concluding that a defendant could never waive any argument so long as he or she was proceeding under § 973.13. But it could not have been the intent of the legislature to create special rules of evidence applicable only to § 973.13 motions. Had the legislature intended such a dramatic departure from existing law, it would have so indicated. Nor is such an interpretation required by Flowers, which we emphasized was meant to be a ‘narrow exception’ to the waiver rule, not a mechanism by which defendants bringing § 973.13 motions could circumvent requirements applicable in all other contexts. See 221 Wis. 2d at 30.

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.)

EXPUNCTION
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.

¶39. We conclude that the purpose of Wis. Stat. § 973.015 is accomplished by interpreting the statute to refer only to court records. Expunction of a court record of a conviction enables an offender to have a clean start so far as the prior conviction is concerned. As the State points out, expunging the court record provides substantial advantages to the offender: An expunged record of a conviction cannot be considered at a subsequent sentencing; an expunged record of a conviction cannot be used for impeachment at trial under § 906.09(1); and an expunged record of a conviction is not available for repeater sentence enhancement.

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.

FINES
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.

¶15      It is also necessary that a sentencing court determine at the time of sentencing whether a defendant has the ability to pay a fine if the court intends to impose one. The standard for imposing a fine, which is part of the punishment, should require no less consideration of the defendant’s ability to pay than is required as part of an order of restitution. See State v. Loutsch, 2003 WI App 16, ¶25, 259 Wis. 2d 901, 656 N.W.2d 781 (When court orders restitution at sentencing under Wis. Stat. § 973.20(13)(a), it must set “an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence,” which includes imprisonment, extended supervision and probation.). A fine is part of the sentence. Failure to complete one’s sentence by full payment of the ordered fine may have significant collateral consequences, such as a delay in restoration of certain civil rights. See Wis. Stat. §§ 304.078; 6.03(1)(b). A trial court must consider the defendant’s ability to pay the fine during the total sentence, that is, any term of probation, imprisonment and extended supervision.

¶19      Here, unlike in Milashoski, Ramel had no significant employment history, and the trial court made no finding, either implicit or explicit, that Ramel had the present ability to pay a fine.

¶21      Ramel promptly raised his inability to pay in his postconviction motion. The postconviction court denied the motion without a hearing, holding that the claim of no ability to pay was “premature” because ability to pay could only be determined when Ramel began extended supervision. That analysis is in error. See Kuechler, 268 Wis. 2d 192, ¶13 (“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.”); State v. Iglesias, 185 Wis. 2d 117, 129, 517 N.W.2d 175 (1994) (“Because Iglesias timely raised the issue of ability to pay in her postconviction motion, we agree that the circuit court had a duty to make a determination on that issue.”) (relying on Will, 84 Wis. 2d at 404).

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.
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).

¶14. The evidence of inability to pay on the part of Kuechler in the court below is unsatisfactory. After Kuechler raised the issue of ability to pay in his postconviction motion, it does not appear in the record that there was a hearing at which Kuechler's ability to pay the fine was determined. "Such a hearing is necessary to avoid an unconstitutional application of the statutes." State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 298, 201 N.W.2d 778 (1972). ... This portion of the case should be remanded to determine whether Kuechler is able to pay the fine.

...

¶16. Finally, in the future, we strongly advise the courts below to abide by the supreme court's counsel in Pedersen: "Much time could be saved if trial courts would follow the practice of ascertaining the defendant's ability to pay a fine at the time of sentencing." Pedersen, 56 Wis. 2d at 296.

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.
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.
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.)

MANDATORY PENALTY
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.

¶10. We hold that the circuit court erred when it construed the presumptive minimum sentence under Wis. Stat. §§ 961.41(1)(cm)3. and 973.01 (TIS-I) to be three years of confinement in prison.11 We conclude that the three-year presumptive minimum sentence under §§ 961.41(1)(cm)3. and 973.01 is a total sentence of three years, consisting of a term of 27 months of confinement and nine months of extended supervision. We therefore reverse the order of the circuit court denying the defendant's postconviction motion and remand the case for resentencing consistent with this opinion.

The particular result “has limited application and is of limited precedential value.” ¶10 n. 11. That’s because this is a TIS-I case and TIS-II did away with all but two presumptive minimums (¶43, citing §§ 939.623, 939.624 (2001-02). Or so the court says (about the “limited” impact, that is.) True, there’s probably a limited universe of defendants falling into Cole’s precise fact-pattern. But some larger lessons might be taken away from this case.

First, the court in effect throws up its hands and says in effect that no matter how you look at it TIS-I makes hash of any reasonable construction. “The truth of the matter is that TIS-I applies awkwardly to presumptive minimum sentences in unclassified felony statutes and it is impossible to cleanly and neatly reconcile the two statutes at issue in this case.” ¶23. This tie goes to the runner; the rule of lenity, in other words, rules: “even if one believes that the arguments on both sides are equally weighted, Wisconsin law provides that a court must favor a milder penalty over a harsher penalty when there is doubt concerning the severity of the penalty prescribed by statute.” ¶67.

Second, additional TIS-I litigation fall-out remains in the wings, most prominently whether TIS-I sentences may be revisited in light of TIS-II. This case, of course, doesn’t address that particular issue, but it does touch on an important building block: “Although TIS-II does not govern the present case, the history and provisions of TIS-II may be accorded weight to aid us in determining what the legislature intended in TIS-I inasmuch as TIS-II was viewed as supplemental legislation necessary to implement the infrastructure created by TIS-I.” ¶41, citing Michael B. Brennan et al., Fully Implementing Truth-in-Sentencing, Wisconsin Lawyer, Nov. 2002, at 11. The court goes on to factor TIS-II intent (rough equality of actual confinement and pre-TIS mandatory release time) into construction of the TIS-I statutes involved in Cole’s case. E.g., ¶¶52, 64. Whether that’s enough to help make TIS-II reductions a new factor in relation to an outsized TIS-I sentence remains to be seen. The court of appeals, to be sure, has taken a dim view of a challenge to TIS-I, State v. Dawn M. Champion, 2002 WI App 267 (rehabilitation not new factor), but that case is logically distinct from a claim that the legislature intended rough parity between AC and MR, therefore TIS-I sentences may be reviewed to see if that goal was served.

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.)

MODIFICATION/REVIEW

Sentence Adjustment Petition, §. 973.195

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. …

¶84 We conclude that the judicial power is compromised when the district attorney is given the unilateral power to end a circuit court's consideration of an inmate's petition for sentence adjustment. A district attorney's exercise of a core judicial function is barred by the separation of powers doctrine. [17]

¶85 Wisconsin Stat. § 973.195(1r)(c) is unconstitutional if read to grant a district attorney veto power over a petition for sentence adjustment. A district attorney's veto power invades the exclusive core constitutional power of the judiciary to impose a criminal penalty. It empowers an executive branch officer to direct a court decision on the merits of a case, thereby violating the doctrine of separation of powers under the state constitution. [18]

¶86 Even if we were to conclude that the statute does not invade the exclusive core constitutional powers of the judiciary, the elimination of a circuit court's power to decide an inmate's petition without the approval of the district attorney is an impermissible burden and substantial interference with the judicial branch's authority. [19] The statute interferes with the impartial administration of justice by delegating judicial power to one of the parties in the litigation.

¶105 Because deciding the merits of a case is the essence of a court's function, and because the statute delegates to a district attorney the power to mandate the denial of a petition in each case, we conclude that the legislation in question is an unconstitutional violation of the doctrine of separation of powers.

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

§ 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 ….
[57] While the circuit court considered some of these factors in the motion hearings for sentence adjustment and for reconsideration, the court did not make a sufficient record demonstrating an exercise of discretion in light of all of the appropriate factors. The circuit court did discuss the need for balancing, but only in regard to the incentive for rehabilitation of the defendant against the harm suffered by the victim and the victim's desire for punishment. The circuit court was correct when the court expressed concern over whether the absolute veto given to the district attorney would stand up, but stopped short of finding such a veto unconstitutional, stating that "I'm not reaching those issues today."
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.
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 ….

¶20 As discussed previously in Trujillo, persons sentenced under TIS-I generally serve longer periods of confinement than those sentenced under either the old indeterminate system of sentencing or TIS-II as a result of the delay between the implementation of TIS-I and TIS-II. One of the features of the TIS-II reclassification of felonies was that the initial period of confinement for crimes was changed so as to approximate the maximum time served under the indeterminate system of sentencing. Thus, the very act that changed the penalty structure for numerous offenses also provided a mechanism for adjusting sentences based on a change in law or procedure related to sentencing or revocation of extended supervision. This strongly supports the conclusion that the legislature intended the sentence adjustment provision to apply to TIS-I offenders.

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).

Conflict Between Pronouncement and Judgment

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.

¶16      When an unambiguous oral pronouncement at sentencing conflicts with an equally unambiguous pronouncement in the judgment of conviction, the oral pronouncement controls. State v. Lipke, 186 Wis.  2d 358, 364, 521 N.W.2d 444 (Ct. App. 1994). Thus, Oglesby’s appeal, and the State’s concession of error on this issue, are well taken. The trial court should have granted Oglesby’s motion to amend the judgment to recite a probation term of two years. We therefore reverse the sentencing portion of the judgment of conviction in 2004CM401 and remand with instructions that the trial court enter an amended judgment reciting the maximum two-year term of probation. …

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.
 [6] The continuing vitality of this rule has been questioned. See State v. Rohl , 160 Wis.  2d 325, 331, 466 N.W.2d 208 (Ct. App. 1991), State v. Brown, 150 Wis.  2d 636, 639, 443 N.W.2d 19 (Ct. App. 1989), and State v. Morrick, 147 Wis.  2d 185, 187, 432 N.W.2d 654 (Ct. App. 1988). However, we do not have the authority to overrule a standing decision of our supreme court. Cook v. Cook, 208 Wis.  2d 166, 189, 560 N.W.2d 246 (1997).
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.
 [7] By way of example, the trial court could have indicated that a period of confinement beyond the sentences imposed in 1997CF239, the probation revocation case, was necessary or appropriate. Or, when rejecting Oglesby’s pitch for probation in 2004CF225, the court could have said that it instead was opting for the State’s recommendation.
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.
Review -- Conflict between oral pronouncement written judgment
State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate
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:

“With certain exceptions not applicable here [citations] judgment and sentence in felony cases may be imposed only in the presence of the accused.” (In re Levi (1952) 39 Cal.2d 41, 45.) ...

The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. ...

And see also U.S. v. Rosario, 2nd Cir. No. 03-1686-cr, 10/8/04 ("In some circumstances where a written judgment entered in the defendant's absence differed from an oral sentence, we have afforded the sentencing judge an opportunity to reimpose the provisions of the written sentence in the defendant's presence.").
Go To Brief
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."
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?

Consecutive Sentences -- Exercise of Discretion

(For Authority to Impose Consecutive Sentences, see above.)


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.
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]

¶33      … As Gallion notes, a sentencing court may use the recommendations of counsel and any PSI report as “touchstones” in the sentencing decision. Here, the trial court used the recommendations of the State and the PSI as “touchstones,” but explained why it was fashioning a sentence less than those recommendations. Given that backdrop, we are not left to wonder why the court fashioned an aggregate confinement sentence of ten and one-half years.

¶34      Distilled to its core, Ziegler’s argument that the trial court did not explain the reasons for the ten and one-half year period of confinement is really one that augurs for mathematical precision in sentencing, a proposition that Gallion expressly disavows. Instead, Gallion requires “an explanation for the general range of the sentence imposed.” Gallion, 270 Wis.  2d 535, ¶49. The trial court’s sentencing remarks well satisfy this requirement.

¶35      As to Ziegler’s complaint that the trial court did not adequately explain why it imposed consecutive sentences, we recall what we have already recited regarding Ziegler’s substantial contacts with the criminal justice system. … Based on the totality of the history Ziegler presented, the trial court reasonably chose to impose escalating consecutive penalties both by way of increased sentences for the second and third burglaries.

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.”
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.

¶25      The trial court explained why the maximum term was required in this case. …

¶26      … The court must provide an explanation for the general range of the sentence imposed, not for the precise number of years chosen, and it need not explain why it did not impose a lesser sentence. State v. Gallion, 2004 WI 42, ¶¶49-50, 54-55, 270 Wis. 2d 535, 678 N.W.2d 197. The trial court provided an adequate explanation for the general range of the sentence imposed.

¶27      We also conclude that there was an adequate explanation as to why consecutive rather than concurrent sentences were imposed. The trial court indicated that it was imposing consecutive sentences because each count was an independent act, independent of the other, and independent of the previous sentence Davis was currently serving.

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. …

¶18. The sole infirmity that Matke cites is the court's failure to specifically relate any of the sentencing factors it discussed to its decision to order the present sentence consecutive to, instead of concurrent with, any pre-existing sentences. In support of his erroneous sentencing claim, Matke points to our decision in State v Hall, 2002 WI App 108, 255 Wis. 2d 662, 648 N.W.2d 41, where we reversed a set of multiple sentences totaling 304 years because the trial court had not explained why each of the multiple sentences was to be served consecutively. Id., ¶¶8, 12-18. … Neither our conclusions in Hall nor the cited ABA Standards have any bearing on a sentence subsequently imposed for a new offense that is unrelated to past offenses for which a defendant may still be serving time.

¶19. We conclude that the present facts are governed instead by the principle that, so long as a sentencing court has considered the proper factors, explained its rationale for the overall sentence it imposes, and the sentence is not unreasonable, the court does not erroneously exercise its discretion simply by failing to separately explain its rationale for each and every facet of the sentence imposed. See State v. Johnson, 178 Wis.  2d 42, 54-56, 56 n.5, 503 N.W.2d 575 (Ct. App. 1993). Moreover, we agree with the State that imposing concurrent sentences for successive OMVWI convictions would contravene the legislature's clearly expressed intent that multiple OMVWI offenders receive harsher punishment upon each successive conviction. See Banks, 105 Wis. 2d at 49-50.

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.

¶23. As noted, sentencing is in the trial court's discretion. The burden on a defendant to show an erroneous exercise of discretion is heavy; the trial court's sentence is presumptively reasonable. State v. Gallion, 2002 WI App 265, ¶¶26-27, 258 Wis. 2d 473, 492-493, 654 N.W.2d 446, 455-456 ("Sentencing courts are 'presumed to have acted reasonably, and the defendant can only rebut the presumption by showing an unreasonable or unjustifiable basis for the sentence in the record.'") (quoted source omitted). See also Echols, 175 Wis. 2d at 682, 499 N.W.2d at 640 ("This court is reluctant to interfere with a trial court's sentence because the trial court has a great advantage in considering the relevant factors and the demeanor of the defendant."). As we have seen, the trial court considered and explained at great length why it was sentencing Ramuta to thirty-five years of initial confinement.

¶24. Ramuta contends that given his age and health, the thirty-five years amounts to, in effect, a life sentence. That may be true. But it was certainly within the trial court's discretion to see that as essential to the public's protection. As noted, the legislature has specifically permitted trial courts to "stack" sentences by authorizing courts to "impose as many sentences as there are convictions." Wis. Stat. § 973.15(2)(a). "[W] hether to impose consecutive, as opposed to concurrent, sentences is, like all other sentencing decisions, committed to the trial court's discretion." State v. Johnson, 178 Wis. 2d 42, 52, 503 N.W.2d 575, 578 (Ct. App. 1993).

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.
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.

...

¶14. In reference to sentencing for more than one offense or count, the ABA Standards direct: "[W]here the separate offenses are not merged for sentencing, a sentencing court should consider imposition of sanctions of a type and level of severity that take into account the connections between the separate offenses and, in imposing sanctions of total confinement, ordinarily should designate them to be served concurrently." ABA Standards for Criminal Justice Sentencing, § 18-6.5(c)(ii), at 230. However, where a court decides to impose sentences consecutively, "[t]he imposition of consecutive sentences of total confinement, where such sentences are permitted, should be accompanied by a statement of reasons for the selection of consecutive terms." Id. at 213 n.2 (citation omitted).


Factors

Factors -- TIS

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.
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).

¶12      … (T)he fact that a defendant has notice of an obsolete penalty scheme does not mean the courts may apply penalties that the legislature no longer prescribes. [3]

¶13      Finally, we reject the State’s alternative argument that we should leave the penalty to the prosecutor’s discretion. Again, penalties are prescribed by the legislature. Prosecutorial discretion only allows the State to choose among available penalty schemes. …


 [3]   Moreover, Thums’ notice necessarily includes notice of the change in penalty. Such a change could reasonably affect a defendant’s expectations about what sentence the court might apply to him or her, which in turn might affect that individual’s conduct. Theoretically, if a defendant has notice that a harsher penalty remains in effect, he or she may well decide not to complete the offense. 
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.
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.
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.

¶22      Klubertanz asserts that Gallion requires that the circuit court must explain why it imposed three years of imprisonment. The circuit court did explain why it imposed a term of imprisonment rather than probation, and the term it chose was relatively short. Gallion does not require that it explain why it imposed three years as opposed to one or two. See Gallion, 270 Wis. 2d 535, ¶49; State v. Fisher, 2005 WI App 175, ¶22, 285 Wis. 2d 433, 702 N.W.2d 56.

¶23      Klubertanz also asserts that the court did not explain why it imposed a lengthy term of supervision. Again we disagree. The court’s comments on the predatory and exploitative nature of Klubertanz’s conduct, his threat to the victim, and his lack of acknowledgement that his conduct represented a serious problem rather than a “lapse of judgment” adequately explain the need for a lengthy period of supervision to insure that Klubertanz truly addresses his problem and that the public is protected. Klubertanz points to his employment, his lack of a prior criminal record, and the fact that he was married and had no other allegations of misconduct during the two years between the charging and the trial, during which time he was out on a signature bond. The court did consider these facts, but in view of the seriousness of Klubertanz’s offense and his failure to acknowledge that, the court decided that a lengthy period of supervision was nonetheless required to meet the objectives of protecting the public and rehabilitation.

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.
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.
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.

¶27      All told, the record before us demonstrates that the circuit court exercised individualized discretion on behalf of the sentence chosen for Taylor. That is, the court fixed a sentence that took into account the following:  (1) Taylor's history of sexual assault; (2) his failure to recognize or accept the serious criminal nature of his conduct; (3) the read-in charges concerning the criminal damage to property and resisting or obstructing an officer; (4) the court's belief that unless Taylor was made to serve a substantial term of confinement, the public would not be protected from his ongoing criminal conduct; and (5) the court's belief that a long term of initial confinement was necessary to rehabilitate Taylor, as both probation and 60 days of confinement had not adequately impressed upon Taylor the seriousness of his conduct.

¶30      Granted, the circuit court did not explicitly state why, in its discretion, it added six more years of initial confinement onto the PSI recommendation.  However, McCleary does not require a sentencing court to provide an explanation for the precise number of years chosen. …


 [9] Taylor argues that "this court should no longer search the record for evidence to support the trial court's sentence." We recently reaffirmed the standards ofMcCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971). See State v. Gallion, 2004 WI 42, ¶76, 270 Wis. 2d 535, 678 N.W.2d 197 (quoting McCleary, 49 Wis. 2d at 277) ("Although we do not change the appellate standard of review, appellate courts are required to more closely scrutinize the record to ensure that 'discretion was in fact exercised and the basis of that exercise of discretion is set forth.'"). We note that because Taylor was sentenced a little less than a year before we released Gallion, its holding does not apply to this case. See id. ("[W]e reaffirm the standards of McCleary and require the application to be stated on the record for future cases."). 
Because our analysis resolves the question presented for review, we decline to review State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507, as being unnecessary to this opinion.
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.
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. …

¶48      Probation should be the disposition unless confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or probation would unduly depreciate the seriousness of the offense. Id., ¶44. Of these factors, only the need for treatment in confinement gave the trial court some pause. But since the rule is stated in the disjunctive, all factors need not be satisfied. SeeState v. Schumacher, 144 Wis.  2d 388, 401, 424 N.W.2d 672 (1988) (applying the principle that where two statutory approaches are stated in the disjunctive, either approach may be employed). The court sufficiently explained the rationale underlying the bifurcated sentence and how the sentence would advance the specified objectives. See Gallion, 270 Wis.  2d 535, ¶45. We see no erroneous exercise of discretion.

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.

¶22      We hold that Fisher is not entitled to this degree of specificity. See id., ¶¶53-55 (rejecting Gallion’s assertion that the court had to justify the specific number of years and specifically describe the comparative weight of each factor). The evil Gallion sought to remedy was the mechanistic application of the three sentencing factors, in which a circuit court simply described the facts of the case, mentioned the three sentencing factors, and imposed a sentence. Id., ¶¶26, 55. We perceive that the court was addressing what this court had also been seeing over the years in appeals involving sentencing discretion.

¶24      We do not accept Fisher’s contention that the circuit court’s sentencing remarks personified the evils the Gallion court sought to remedy …. The court plainly considered all three of the primary sentencing factors in light of the facts of Fisher’s case. …

Review -- Factors -- TIS, Generally
State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue/Holding:
¶6. In State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the Wisconsin Supreme Court revisited the seminal case in sentencing jurisprudence, McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971) …

¶7. The appellate standard of review is limited to determining if the sentencing court erroneously exercised its sentencing discretion. Id., ¶17. …

¶8. In Gallion, the supreme court reaffirmed the core concepts of McCleary, that to properly exercise its discretion, a circuit court must provide a rational and explainable basis for the sentence. Gallion, 270 Wis. 2d 535, ¶¶22, 39. … Gallion unmistakably requires that "[w]hat has previously been satisfied with implied rationale must now be set forth on the record." Id., ¶38. …

¶9. While Gallion revitalizes sentencing jurisprudence, it does not make any momentous changes. The weight to be given each factor is still a determination particularly within the wide discretion of the sentencing judge. Anderson v. State, 76 Wis. 2d 361, 364, 251 N.W.2d 768 (1977). Moreover, when we review a sentence, we still look to the entire record, including any postconviction proceedings and to the totality of the court's remarks. See State v. Santana, 220 Wis. 2d 674, 683, 584 N.W.2d 151 (Ct. App. 1998) ("The transcripts of the sentencing hearing as well as several postconviction hearings make an extensive record of the trial court's comments at sentencing and its explanation for what was considered."). Having been reinvigorated, we now turn to Stenzel's arguments.

“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.
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.

¶31. Likewise, we agree with the Criminal Penalties Study Committee that the judiciary must address the increased responsibility placed upon the sentencing court in light of truth-in-sentencing. As the Committee observed, truth-in-sentencing legislation caused a "shift of more complete--and informationally accurate--sentencing decisionmaking to the judiciary." …

¶34. Now judges have an enhanced need for more complete information upfront, at the time of sentencing. Judges would be assisted in knowing about a defendant's propensity for causing harm, the circumstances likely to precipitate the harm (e.g., alcoholic beverages, proximity to school children, etc.), and the connection between the elements of the sentence recommended and the objectives of sentencing. To this end, we encourage judges to request more complete presentence reports.


Factors -- Proof

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.
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.
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. 

See also State v. McQuay , 154 Wis. 2d 116, 126, 452 N.W.2d 377 (1990) ("Evidence of unproven offenses involving the defendant may be considered by the court for" the purpose of "determining the character of the defendant and the need for his incarceration and rehabilitation."); Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559 (1980) ("[T]he trial court in imposing sentence for one crime can consider other unproven offenses, since those other offenses are evidence of a pattern of behavior which is an index of the defendant's character, a critical factor in sentencing.") (citations omitted).

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).

¶55. As we have seen, the trial court “accepted” the jury's verdict in Arredondo's other case. But it also properly considered the facts underlying that case in gauging Arredondo's character. See State v. Leitner, 2001 WI App 172, ¶44, 247 Wis. 2d 195, 214, 633 N.W.2d 207, 216, aff'd, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341 (court may consider factual circumstances related to offenses for which the defendant has been acquitted). Simply put, the trial court did not, as the Dissent asserts, “‘replace the jury's conclusion with its own,’” Dissent at ¶62 (quoting Bobbitt, 178 Wis. 2d at 18, 503 N.W.2d at 15); rather, it properly considered Kim S.'s testimony as it reflected on what kind of a person Arredondo was and is. There was no error.

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.

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.

Factors -- Prior Juvenile Adjudication

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.
[5] Montroy did not ask the court to correct the improper references to his juvenile history at the sentencing hearing. Instead, he raised them as a basis for his request for resentencing.

Factors -- Public Protection

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.

¶7        The trial court considered the appropriate factors when it sentenced Trigueros.  It considered the seriousness of the crime, describing the devastating impact drugs have on families and children.  It commented that not only do parents and children become addicted to drugs, but also that:  “Drug trafficking brings violence into the neighborhoods.  And that’s exactly what the … Neighborhood Impact Statement describes here.  It points out that there was a young man who was shot over drugs.”  The trial court also considered Trigueros’s character, noting that he had no prior criminal record and that he was involved in a drug treatment program.  In its decision and order denying Trigueros’s motion for postconviction relief, the trial court further explained that at sentencing it had placed great weight on the negative impact drug dealing has on the community.  It noted that it was aware of Trigueros’s positive character traits, but that Trigueros’s “willingness to become part of the problem by selling drugs reflected negatively upon his character and greatly influenced [its] sentencing decision.”  The trial court properly exercised its sentencing discretion.


Factors -- Youthfulness of Defendant

Review -- Factors -- Youthfulness of Defendant
State v. Lonnie C. Davis, 2005 WI App 98
For Davis: Pamela Moorshead
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 ….

¶17      … It is clear from the record that the trial court was aware of Davis’s young age, but that the youth factor did not operate to significantly mitigate the appropriate sentence.  This did not render the trial court’s decision erroneous.

¶18      The trial court is not required to consider a defendant’s age because it is a secondary factor; moreover, even if age is addressed, the trial court determines whether it should carry any weight….

¶19      … Clearly, the trial court determined that the three primary factors outweighed any mitigating effect that the young age may have offered.  This did not constitute an erroneous exercise of discretion.

(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).)

Factors -- Minimum Custody / Probation

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.
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. …

¶25. Likewise, not new to our sentencing jurisprudence is the concept that probation should be considered as the first alternative. In Bastian v. State, 54 Wis. 2d 240, 248-49, n.1, 194 N.W.2d 687 (1972), this court expressly adopted Standard 1.3 of the ABA Standards Relating to Probation. That standard provides in part that, "Probation should be the sentence unless the sentencing court finds that:

(i) confinement is necessary to protect the public from further criminal activity by the offender; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the offense if a sentence of probation were imposed."
This requirement is consistent with the McCleary standard calling for the minimum amount of custody or confinement.
(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.)

Factors -- Articulation by Trial Court Required

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.
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.
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.

¶17      Contrary to Russ’ claim that nowhere in the record did the court explain why a sentence of fifteen years would promote its goal of rehabilitation while protecting the public, the court did explain its rationale. It clearly stated that concurrent sentences would unduly diminish the seriousness of the offenses as well as public protection. We also reject Russ’ implicit argument that a sentencing court must explain with mathematical precision why it chose the specific number of years. The court did not have to explain why twelve years would not do and why fifteen would. As we recently indicated in State v. Fisher, 2005 WI App 175, ¶¶21-22, ___ Wis. 2d ___, 702 N.W.2d 56, defendants are not entitled to this degree of specificity. Indeed, we noted that even in Gallion the supreme court had upheld a sentence in which the sentencing judge had not specifically explained how the factors before the court translated into a specific number of years. See Fisher, 702 N.W.2d 56, 21-22; Gallion, 270 Wis. 2d 535, ¶¶53-55. We affirm on this issue.

Review -- Factors -- Articulation by Court
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.)
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.

¶40. A basic framework for this process of reasoning that demonstrates the exercise of sentencing discretion has previously been set forth for sentencing courts. See Wis. J.I.--Crim. SM-34 at 8-9 (1999).9 Circuit courts are required to specify the objectives of the sentence on the record. These objectives include, but are not limited to, the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. Id.10

¶41. Courts are to identify the general objectives of greatest importance. These may vary from case to case. In some cases, punishment and protection of the community may be the dominant objectives. In others, rehabilitation of the defendant and victim restitution may be of greater import. Still others may have deterrence or a restorative justice approach as a primary objective.

¶42. Courts are to describe the facts relevant to these objectives. Courts must explain, in light of the facts of the case, why the particular component parts of the sentence imposed advance the specified objectives.

¶43. Courts must also identify the factors that were considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision. In Harris, we detailed factors that courts may take into account in the exercise of discretion.11 These factors assist courts in identifying relevant considerations at sentencing. In addition, the legislature has mandated consideration of applicable mitigating or aggravating factors.12

¶44. 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. See also Setagord, 211 Wis. 2d at 416; Borrell, 167 Wis. 2d at 764; Krueger, 119 Wis. 2d at 336-37. Accordingly, the circuit courts should consider probation as the first alternative. Probation should be the disposition unless: confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or it would unduly depreciate the seriousness of the offense. Bastian, 54 Wis. 2d at 248-49, n.1.

¶45. If a circuit court imposes probation, it shall explain why the conditions of probation should be expected to advance the objectives it has specified. Likewise, if a circuit court imposes jail or prison, it shall explain why the duration of incarceration should be expected to advance the objectives it has specified. Finally, if a circuit court imposes a bifurcated sentence for a crime committed after December 31, 1999, it shall explain why its duration and terms of extended supervision should be expected to advance the objectives.

¶46. In short, we require that the court, by reference to the relevant facts and factors, explain how the sentence's component parts promote the sentencing objectives. By stating this linkage on the record, courts will produce sentences that can be more easily reviewed for a proper exercise of discretion.

¶47. Because we recognize the difficulty in providing a reasoned explanation in isolation, we encourage circuit courts to refer to information provided by others. Courts may use counsels' recommendations for the nature and duration of the sentence and the recommendations of the presentence report as touchstones in their reasoning. Courts may also consider information about the distribution of sentences in cases similar to the case before it. We note that Wis. Stat. § 973.017(2)(a) requires sentencing courts to consider any applicable temporary sentencing guidelines adopted by the Criminal Penalties Study Committee and to consider in the future any applicable guidelines adopted by a sentencing commission.13

(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:

The majority requires that circuit courts must comply with the following list of prerequisites in order to render a valid sentence. Circuit courts must: 1) explain the objectives of the sentence; 2) identify which objectives are of the greatest importance; 3) describe the facts relevant to these sentencing goals; 4) explain why the elements of the sentence advance those goals; 5) consider the 12 factors identified in Harris and three primary factors in McCleary; 6) explain how these factors influence the decision and are expected to meet the goals of the sentence; 7) consider the aggravating and mitigating factors listed in Wis. Stat. §§ 973.017(3) to (8); 8) consider probation as the first alternative and explain why probation is or is not sufficient and whether probation would further the goals of the sentence; 9) explain why the existence and duration of any prison term advances the objectives of the sentence; 10) explain why the existence and duration of any term of extended supervision advances the objectives of the sentence; and 11) consider any applicable sentencing guidelines pursuant to Wis. Stat. § 973.017(2)(a). Majority op., 39-46.
This listing indeed seems to be a fair reading of the majority bullet-point requirements. Note, too, the concurrence’s phraseology: “list of prerequisites in order to render a valid sentence.” This, too, seems to be a fair reading, but one which will no doubt be resisted and require a good deal of litigation. The majority doesn’t quite say that its requirements underpin “a valid sentence” – indeed, whether they do strikes at the heart of the independent-review doctrine (if a failure to properly exercise discretion results in an invalid sentence, then it’s hard to see how an appellate court can go ahead and look for reason to sustain it.

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.
For Gallion's petition for review, go here.


Factors -- Expunged Priors

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.)

Factors -- Right to Trial

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.

Factors -- First Amendment Protected Activity

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:
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.

And everything I know about you, Omer, and everything I’ve gleaned about you from your—from the information that’s been provided to me, you dealt with those things appositionally. You weren’t willing to let those cultures and those different ideas intermingle. It had to be your way or no way at all. That’s too bad. And it’s that attitude that you’re going to have to change. And I would hope—I can’t do anything but give you the benefit of that.

I would hope that [you] turn to spirituality. Native American spirituality gives you something to build on in that regard. It had better because I can tell you right now if your attitude and your ruthlessness and the perception that you have of your relationship to the community in which you are going to find yourself continues as it is, you’re in for a real tough ride.

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.
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.
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.

Factors -- Victim-Related

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.)
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
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. …

¶64. Under Wisconsin law, victims have certain rights at sentencing. … The only limitation on the victim's ability to make a statement is that it must be relevant to the sentence. …

¶65. One type of information that appears to be relevant is that which relates to the impact of the crime on the victim or victim's family. …

¶68. We reject Gallion's assertion that the good character of the victim is irrelevant. The circuit court possesses wide discretion in determining what factors are relevant to its sentencing decision. State v. Echols, 175 Wis. 2d 653, 683, 499 N.W.2d 631 (1993). Here, it determined that Brown's good character and the loss her death caused her family, friends, and co-workers, were both relevant and appropriate considerations in assessing the gravity of the offense. …

¶69. Similarly, we reject Gallion's admonition that acknowledging the positive contributions of one victim will devalue the worth of victims who do not have family or friends to speak for them. We fail to see how one necessitates the other.

¶70. In doing so, however, we are mindful of the dangers in measuring a victim's comparative worth. …

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.

Factors -- Refusal to Name Accomplice

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 ....

¶10 ... Here, of course, unlike Roberts and, apparently, both Holmes and Olson, where it does not appear that "fear of retaliation" was ever raised, Kaczynski presented his fears of retaliation to the trial court. As we have seen, the trial court considered what Kaczynski and his lawyer offered, but, as revealed by its comments quoted above, doubted Kaczynski's veracity and also believed that stronger social values prevailed.

¶11 ... But just as child molesters who deserve prison should not get a pass from incarceration because they may be at special risk inside the institution, we cannot, as Kaczynski urges, decree that it is an erroneous exercise of sentencing discretion for a trial court to enhance a sentence when a defendant's refusal to cooperate is based on his or her incantation of a fear of retaliation-even when that fear might be justified. To do so, would be to enact the "Tony Soprano" "code of silence" into the substantive law of this state. This we refuse to do.

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).

Factors -- Jail Credit

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.

...

¶12. In concluding that a court may, in specific circumstances, consider presentence credit as a factor in determining an appropriate sentence, we remain mindful of a defendant's constitutional right to receive credit for time already served. Here, the record indicates that Fenz was credited 342 days for time served. Therefore, we affirm Fenz's sentence and the court's order partially denying sentence modification.


Factors -- Defendant's Characteristics and Personal history

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.
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.

¶16      Finally, Sherman claims the court erroneously exercised its discretion by failing to consider sentences given in other sexual assault cases involving teachers. Sherman provided this information to the court in a sentencing memorandum. In support of this argument, he relies upon our supreme court’s decision in Gallion, 270 Wis. 2d 535.

¶17      In Gallion, our supreme court suggested many facts that courts may consider during sentencing, including information about sentences in other cases. See id., ¶47. Here, Sherman’s argument fails because the court clearly considered Sherman’s sentencing memorandum. The court noted that other sexual assault cases “rise and fall on their own facts, and I know none of those facts so I’m not dealing with any of those cases here today.” The court also noted that it was familiar with a case not included in Sherman’s memorandum, which resulted in a sentence providing twenty years’ initial confinement. The court based its sentence on the facts of Sherman’s case: “[Y]our sentence, Mr. Sherman, rises and falls on the facts here and your character and your behavior. No one else’s.”

¶18      Individualized sentencing “has long been a cornerstone to Wisconsin’s criminal justice jurisprudence.” Id., ¶48. “No two convicted felons stand before the sentencing court on identical footing … and no two cases will present identical factors.” Id., ¶48 (quoting State v. Lechner, 217 Wis. 2d 392, 427, 576 N.W.2d 912 (1998)). Here, the court considered all the information before it, including Sherman’s sentencing memorandum. We reject any implication that the court was required to give his memorandum more weight. See Grady, 302 Wis. 2d 80, ¶¶41-42.

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.
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.
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. ...

¶13. However, the court did not place any weight on Stenzel's age because it concluded that the gravity of the offense was enormous. It explained at the postconviction hearing that at sentencing it was required to balance Stenzel's exemplary life against the gravity of the offense. The court struck a proper balance at sentencing. ...

¶14. The circuit court was correct in its assessment of the gravity of the offense. In 1957, the United States Supreme Court commented that the increasing slaughter on our highways perpetrated by drunk drivers "now reaches the astounding figures only heard of on the battlefield." Breithaupt v. Abram, 352 U.S. 432, 439 (1957). ...

¶15. The Wisconsin Supreme Court has also recognized the drunk driving plague ... State v. Nordness, 128 Wis. 2d 15, 33-34, 381 N.W.2d 300 (1986). In Wisconsin, the carnage is just as shocking as it is nationally ....

¶16. We conclude that the circuit court appropriately exercised its discretion when it did not give Stenzel's age the overriding and mitigating significance that he would have preferred.5 It remains within the discretion of the circuit court to discuss only those factors it believes are relevant, State v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183 (Ct. App. 1984), and the weight that is attached to a relevant factor in sentencing is also within the wide discretion of the sentencing court. State v. Perez, 170 Wis. 2d 130, 143, 487 N.W.2d 630 (Ct. App. 1992). The circuit court explicitly linked the sentence imposed to the gravity of the offense and the need to send a message to the public. See Gallion, 270 Wis. 2d 535, ¶46. It was permissible for the court to impose a stiff sentence to emphasize society's concern with the gravity of the offense. Roehl v. State, 77 Wis. 2d 398, 420, 253 N.W.2d 210 (1977). Similarly, in sending a message to the public that a death caused by intoxicated use of a vehicle would be dealt with harshly, the circuit court was appropriately considering the deterrence effect of the sentence. Harris v. State, 78 Wis. 2d 357, 370, 254 N.W.2d 291 (1977).

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).

...

¶20. We agree with these other jurisdictions that the defendant's life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of his or her life in prison, does not have to be taken into consideration by the circuit court.7 If the circuit court chooses to consider a defendant's life expectancy, then it must explain, on the record, how the defendant's life expectancy fits into the sentencing objectives. See Gallion, 270 Wis. 2d 535, ¶46.

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."
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 ....

Second, Bizzle overlooks the evidence available to the court at the time of sentencing. ... We conclude that the sentencing court reasonably relied upon the facts and reasonable inferences that Bizzle needed rehabilitative services and was justified in considering her treatment needs when imposing sentence.


Factors -- Pretrial Psychiatric Evaluation

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.")

Factors -- Setting PED -- Articulating Primary Factors Unnecessary

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.

Factors -- Defense Right to Present

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.

Factors -- Guidelines


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.

¶12      However, in cases involving reversed concurrent sentences, where the overall sentence structure remained intact after eliminating the reversed count, resentencing has been held to be unnecessary. See State v. Sinks, 168 Wis. 2d 245, 256, 483 N.W.2d 286 (Ct. App. 1992); State v. Church, 2003 WI 74, ¶¶19, 26, 262 Wis. 2d 678, 665 N.W.2d 141 (“Resentencing is unnecessary, and certainly not required, where, as here, the invalidation of one count on double jeopardy grounds has no affect at all on the overall sentence structure.”). Here, all of the sentences were concurrent, and the overall sentence structure was controlled by the longest sentence.\[1][4] Because the controlling sentence remains undisturbed, the overall sentence structure remains intact. Therefore, resentencing is unnecessary, and the circuit court did not err by declining to resentence Sherman. See Church, 262 Wis. 2d 678, ¶26.

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).
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:
(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.

¶18      Nothing in the language of § 973.017(10) suggests that a circuit court's failure to consider an applicable sentencing guideline pursuant to § 973.017(2)(a) is not a valid grounds for appeal. Therefore, we conclude that like the other provisions of Wis. Stat. ch. 973 that establish obligations for circuit courts during sentencing, an appellate court may review whether or not a circuit court satisfied its § 973.017(2)(a) obligation.[5]


  [5] See, e.g., State v. Campbell, 2006 WI 99, ¶¶77-78, 294 Wis. 2d 100, 718 N.W.2d 649 (court reviewed whether a circuit court properly imposed attorney fees pursuant to Wis. Stat. §§ 973.06(1)(e) and 973.09(1g)); State v. Beets, 124 Wis. 2d 372, 374, 369 N.W.2d 382 (1985) (court reviewed whether Wis. Stat. § 973.155(1)(1981-82) required a sentencing credit); State v. Volk, 2002 WI App 274, ¶¶35-36, 258 Wis. 2d 584, 654 N.W.2d 24 (court reviewed whether Wis. Stat. § 973.01(2)(1999-2000) permitted a penalty enhancer to be applied to the term of extended supervision); State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147 (court reviewed whether the circuit court satisfied its Wis. Stat. § 973.20(1r)(1997-98) obligation related to imposing restitution); State v. Pope, 107 Wis. 2d 726, 731, 321 N.W.2d 359 (Ct. App. 1982) (court reviewed whether the circuit court satisfied its Wis. Stat. § 973.09(1m)(1979-80) obligation to consider the financial resources and future ability of the probationer to pay when establishing the amount of restitution and method of payment). …
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.
Issue/Holding2:

¶33      The consideration of an applicable sentencing guideline must be found in the record. Appellate review of a circuit court's exercise of discretion depends on appellate courts being able to access a circuit court's acts of discretion from the record. …

¶35      The consideration of an applicable guideline must occur for each sentence imposed for a sentencing court to satisfy its § 973.017(2)(a) obligation. "Individualized sentencing, after all, has long been a cornerstone to Wisconsin's criminal justice jurisprudence." Gallion, 270 Wis. 2d 535, ¶48.

¶36      In this case, the record of the postconviction motion hearing reveals that the sentencing judge considered the applicable guideline during the sentencing hearing. During the hearing on Grady's postconviction motion, Judge DiMotto explicitly stated that she had considered the sentencing guideline for armed robbery when she sentenced Grady. In the order denying Grady's postconviction motion, the court also stated that it "considered the sentencing guidelines without explicitly identifying that fact and it is clearly apparent from the record that the court did so." Hereafter, supplementing the record with evidence beyond the sentencing hearing will be insufficient. Nevertheless, in this case, we are satisfied that Judge DiMotto considered the applicable sentencing guideline during Grady's sentencing hearing.

¶43      (W)e reject Grady's suggestion that § 973.017(2)(a) requires the sentencing court to explain its use of any applicable guideline.

¶44      Based on the enacted language and context, we hold that a circuit court satisfies its § 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record. 

¶45      Although the concept of sentencing guidelines has existed for over 25 years, there has been uncertainty about their use. Because our holding will require different practices by circuit courts sentencing defendants, this decision will become effective for any sentencing occurring after September 1, 2007.
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.
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.
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.
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.

¶39. We agree that having different guidelines in the various judicial districts may lead to some disparity. It is not a perfect solution to the sentencing disparity problem. However, under a rational basis test, it need not be a perfect solution. It must only be a step in the right direction. As noted by the court of appeals in Smart, 257 Wis. 2d 713, ¶7:

Smart argues the guideline scheme does not bear a rational relationship to the objective of reducing disparity and actually increases it by allowing each judicial district to develop their own standards. While we agree the statute may not be the best way to reduce drunk driving sentencing disparity, a rational basis inquiry does not require perfection. Our only question is whether the statute bears some relationship to advancing that goal. It does. By mandating the creation of guidelines within judicial districts, the statute attempts to reduce sentencing disparity within those districts. While statewide guidelines would perhaps be more equitable, there is no requirement the legislature choose the wisest or most effective means of reducing disparity.
In addition, this court has held: "The fact a statutory classification results in some inequity . . . does not provide sufficient grounds for invalidating a legislative enactment." 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.

Factors -- Restitution Payments


Factors: Basing Length of Extended Supervision Term on Making Restitution Payments
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.

Factors -- Seriousness of Offense


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. ...

Santana claims, however, that the judge's comments also evinced an impermissible consideration of how the sentence imposed would be perceived by the public, and he argues that this factor was primarily responsible for the lengthy sentence. However, we disagree with this characterization of Judge Kennedy's remarks. The complete transcript of the sentencing hearing convinces us that Judge Kennedy considered a wide range of information about Santana and offered numerous reasons for his ultimate decision. ...

Consideration of the trial court's comments in context convinces us that the judge's comments were merely a reference to giving a factor more weight than he had previously: the factor of imposing a sentence which does not unfairly depreciate the seriousness of the crime and its impact on the victim. ...


Review -- "Finality" of Sentence
See also
Double Jeopardy -- Sentence

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.)
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

Review -- Harmless Error

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.

Review -- Harsh and Excessive

Harsh & Excessive - Cruel and Unusual

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. …

¶5        Ninham contends the rarity of a life sentence without parole for a fourteen-year-old renders his punishment “unusual” under the Eighth Amendment. He provides statistics of children who were arrested [3] for murder or non-negligent manslaughter to establish that his sentence is unusual. Ninham’s crime was unusual for its senseless and extreme brutality. When combined with his lack of remorse, his prior record and other crimes he committed while awaiting trial, his case is distinguished from other juveniles arrested for murder or manslaughter. Without a presentation of the circumstances of other juveniles’ crimes, we cannot compare the sentences. The statistics Ninham provides do not establish that life without parole is a rare sentence for a juvenile whose crimes and character are comparable to his own.

¶6        Ninham next argues that the unique circumstances of his case render his sentence unconstitutional.  … The Eighth Amendment does not compel lenity based on a killer’s chaotic childhood.

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.


Harsh & Excessive -- Presumptively Correct

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).
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.
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.
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.

¶41      In this case Klubertanz does not argue that the sexual assault that occurred in prison was a new factor as defined in Crochiere, 273 Wis. 2d 57, ¶14. See footnote 4. This implicit concession is appropriate because there is no basis in the record for arguing the sexual assault in prison was highly relevant to the circuit court’s sentencing decision or an event or development that frustrates the purpose of the sentence the court imposed. Klubertanz also does not argue that the circuit court erroneously exercised its discretion by imposing a sentence that was unduly harsh. Rather, his argument is that the sentence became unduly harsh later, when he was assaulted in prison. The circuit court correctly decided that it did not have the authority to modify the sentence because the sexual assault in prison made the sentence unduly harsh.

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. 

¶49      A tangible result of these false hopes is that a considerable portion of this court’s resources is spent addressing appeals from motions for sentence modification. Precisely how much of our time is spent adjudicating these appeals is unclear. These cases also tax the resources of the public defender, the State and other appellate counsel—all for a sentencing review regime producing within a hair of the same results as one without any review of sentencing.

¶50      This court lacks the authority to restore meaningful review of sentencing or to scrap the pretense of meaningful review that currently exists and reverse Tuttle. However, either of these options would be preferable to the illusion of review that exists today. I do not know whether it would be better to eliminate review under the “unduly harsh or unconscionable” standard altogether or to give appellate courts real power to review sentencing decisions, but the choice is not mine to make. [11] I therefore conclude that under Grindemann, now expanded by the majority’s opinion, I must concur in the majority’s result.

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).

¶22. We conclude that the sentence is not so excessive as to be unduly harsh and unconscionable. When Stenzel entered his no contest plea to two counts of homicide by intoxicated use of a vehicle, a Class B Felony, he faced the possibility of a total sentence of sixty years. See Wis. Stat. § 939.50(3)(b). The sentence of fourteen years, with eight years of initial confinement, is within the statutory limits. "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." State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983). In addition, because there were two victims, making the sentences consecutive does not shock the public sentiment and make the sentences unduly harsh and unconscionable. See State v. Hamm, 146 Wis. 2d 130, 157, 430 N.W.2d 584 (Ct. App. 1988). Finally, considering the age of the victims and the gravity of the offenses, public sentiment supports the sentences imposed.

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.
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.
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
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.

¶42 … In the court's view, an extended period of incarceration was necessary to protect young girls from Taylor's sexual behavior and his disregard for the rule of law.

¶43 We believe the court clearly considered the nature of the offense, the character of the defendant, and the protection of the public. Taylor recognizes the court's legitimate concern about protecting the public, but he essentially contends the court relied too heavily on this factor and gave too little weight to the other primary factors and the specific considerations described above. We do not dispute the relative weight given by the trial court to its concerns about the safety of the public. As we have recognized, however, "[g]iving consideration to various relevant factors does involve a weighing and balancing operation, but the weight to be given a particular factor in a particular case is for the trial court, not this court, to determine." Cunningham v. State, 76 Wis. 2d 277, 282, 251 N.W.2d 65 (1977); accord Schreiber, 251 Wis. 2d 690, ¶8. Furthermore, "a sentence can be imposed which considers all relevant factors but which is based primarily on the gravity of the crime or the need to protect society." Cunningham, 76 Wis. 2d at 283.

Review -- Harshness -- Sexual Assault
State v. Richard G.B., 2003 WI App 13, PFR filed 1/13/03
For Richard G.B.: Bridget E. Boyle
Issue/Holding: Sentence of 18 years for sexual assault of a child (mouth-vagina intercourse with 15 year-old niece) wasn't harsh and excessive, measured against a maximum possible sentence of 20 years. Trial court also “articulated its reasoning for the sentence and considered the appropriate factors” (namely, primary sentencing factors, weighed against Richard’s character). ¶¶18-21.
Review -- Harshness -- Exceeding Life Expectancy
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
Issue/Holding: Sentence of initial confinement of 35 years not excessive:
¶25. Although we recognize that trial courts should impose "'the minimum amount of custody'" consistent with the appropriate sentencing facts, State v. Hall, 2002 WI App 108, ¶8, 255 Wis. 2d 662, 671, 648 N.W.2d 41, 45 (quoted source omitted), "minimum" does not mean "exiguously minimal," that is, insufficient to accomplish the goals of the criminal justice system-each sentence must navigate the fine line between what is clearly too much time behind bars and what may not be enough. Without an elaborate system of sentencing grids, like there is in the federal system, no appellate-court-imposed tuner can ever modulate with exacting precision the exercise of sentencing discretion. See Gallion, 2002 WI App 265 at ¶9, ___ Wis. 2d at ___, 654 N.W.2d at 450. The trial court here, unlike the trial court in Hall, 2002 WI App 108 at ¶12, 255 Wis. 2d at 674, 648 N.W.2d at 46, explained its rationale at great length and with full and careful exposition: it put "on the record the relevant and material factors" that informed its decision; it did not rely on any improper factors; and it did not give "too much weight" to "one factor [in] the face of other contravening considerations." Id., 2002 WI App 108 at ¶9, 255 Wis. 2d at 671-672, 648 N.W.2d at 45 (internal quotation marks omitted). It also recognized specifically that it was sentencing Ramuta under the truth-in-sentencing law, where the thirty-five years, with de minimis exceptions not material here, meant that Ramuta would spend at least thirty-five years in prison, provided he lived that long.

¶26. The trial court did not erroneously exercise its sentencing discretion. Further, in light of all the reasons given by the trial court as to why it believed Ramuta's sentence was necessary, we cannot say that thirty-five years of initial confinement is beyond the pale of what a civilized community would view as reasonable. See Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457, 461 (1975).

At the time this case was decided, review in Gallion was pending, as the court noted, albeit with a hint of skepticism that appellate courts would be given "broader authority" to review sentencing decisions, ¶26 n. 3. As it turns out, the supreme court indeed directed appellate courts to look much more closely at sentences, 2004 WI 42, ¶4. This doesn't mean that the result in Ramuta is discredited, especially given that the trial court "explained its rationale at great length and with full and careful exposition." But it does mean that the reviewing court's focus is indeed on the sentencing rationale, and not on disdain toward the prospect of "modulat(ing) with exacting precision the exercise of sentencing discretion."
Go To Brief
Review -- Harshness
State v. Curtis E. Gallion, 2002 WI App 265, affirmed, 2004 WI 42
For Gallion: Howard B. Eisenberg; Randall E. Paulson, SPD, Milwaukee App
Issue/Holding: Sentence of 30 years (21 years confinement, 9 years ES) for homicide by intoxicated use of motor vehicle -- "in the middle range of that authorized by the legislature," and committed by a defendant with a criminal history whose "situation presents something in the middle ground" -- isn't too harsh. ¶¶30-41.
Note: The supreme court affirmed the result that the sentence wasn't harsh, but not in the same glib manner as the court of appeals.
For Gallion's petition for review, go here.
Review -- Harshness
State v. Christopher Kaczynski, 2002 WI App 276, PFR filed 11/20/02
For Kaczynski: Eugene Kaluzny
Issue/Holding: Sentence of 10 years, where the conduct would have supported charges carrying 45 years, isn't harsh. ¶13.

Harsh & Excessive -- Exceeding Statutory Maximum

Review -- Sentence Exceeding Statutory Maximum -- Consecutive Terms of Probation -- Remedy
State v. Glenn F. Schwebke, 2001 WI App 99, 242 Wis. 2d 585, 627 N.W.2d 213, affirmed on other grds., 2002 WI 55
For Schwebke: Keith A. Findley, UW Law School
Issue/Holding: The remedy for this sentence which exceeded the permissible maximum -- multiple counts of probation running consecutive to one another, ¶¶25-30 -- is to commute the excess portion to the total allowable term of probation. ¶31.
Note: In a prior case, the court held:
We therefore hold that when a sentence is commuted pursuant to § 973.13, STATS., the sentencing court may, in its discretion, resentence the defendant if the premise and goals of the prior sentence have been frustrated.
State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841(Ct. App. 1996). Holloway involved prison terms, and Schwebke is therefore probably limited to probation cases.
Review -- Sentence Exceeding Statutory Maximum -- Extended Supervision, Bifurcated Sentence -- Remedy
State v. Joeval M. Jones, 2002 WI App 29, opinion ordered withdrawn, 2002 WI 53
For Jones: Paul G. Lazotte
Issue: Whether the remedy for a sentence imposed in excess of the permissible maximum includes resentencing.
Note: Because the opinion was ordered withdrawn it has no precedential value (Indeed, is no longer available on-line), but is summarized here for any informational value it may have.
Holding: Here, the bifurcated sentence exceeded the permissible maximum for the extended supervision portion: the excessive part of the ES sentence is therefore commuted under § 973.13 to the maximum term authorized for that class of felony. ¶19. Nonetheless, remand for resentencing is necessary as to the confinement portion:
¶21. Jones's bifurcated sentence is two-pronged. Both prongs of the bifurcated sentence, the term of confinement and the period of extended supervision, have a maximum term authorized by statute. Additionally, the overall length of the bifurcated sentence has a maximum statutory length. In sentencing, the two prongs often form a symbiotic relationship. As such, a variation in the length of either prong may affect the other, as well as the overall length of the bifurcated sentence.

¶22. At present, the "maximum term authorized by statute" would subject Jones to a maximum bifurcated sentence of eleven years, including maximum terms of eight years of confinement and three years of extended supervision. In its discretion, the trial court added only three years to Jones's term of confinement. However, the trial court may have added fewer years to Jones's term of confinement because it had also added two years to his extended supervision. Now, in light of our interpretation of Wis. Stat. § 973.01, the trial court may choose to alter the structure of Jones's sentence while not exceeding these maximum penalties.

¶23. Because the underlying premise of Jones's original sentence may have been frustrated, the trial court should have the opportunity to restructure his sentence in order to bring it in conformity with the law and to effectuate the court's intent. See generally Holloway, 202 Wis. 2d at 700-01 (holding that "when sentence [in excess of maximum penalty authorized] is commuted," the sentencing court may alter the sentence in order to bring it into conformity with law and to effectuate court's intent, or, "in the appropriate case and in proper exercise of discretion, may further ease a sentence already commuted"). Accordingly, upon remand, the court is directed to enter an amended judgment of conviction.


Harsh & Excessive -- "Excessive Fines Clause"

Review -- Forfeiture -- "Excessive Fines Clause"
State v. Kirk J. Bergquist, 2002 WI App 39
For Berhquist: Steven H. Gibbs
Issue: Whether the state’s refusal to return guns valued at between $5000 and $7,150, following conviction for disorderly conduct, violated the Eighth Amendment Excessive Fines Clause.
Holding:
¶8. Although the term "forfeiture" does not appear in this statute, our supreme court has recognized that the result of refusing to return a weapon to a person who committed a crime using the weapon is a forfeiture. See In re Return of Property in State v. Perez, 2001 WI 79, 61, 244 Wis. 2d 582, 628 N.W.2d 820.…

¶9. We are convinced that even though Wis. Stat. § 968.20(1m)(b) does not contain the word "forfeiture," it prescribes one. The determinative issue, therefore, is whether the statute prescribes a forfeiture subject to the Excessive Fines Clause.

¶10. The Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, as punishment for an offense. Austin v. United States, 509 U.S. 602, 609-10 (1993).…

¶11. Applying the Austin analysis here, we conclude that the Excessive Fines Clause applies to Wis. Stat. § 968.20(1m)(b). In State v. Williams, 148 Wis. 2d 852, 858, 436 N.W.2d 924 (Ct. App. 1989), we recognized that § 968.20(1m)(b) satisfies two legitimate police power objectives: deterrence and preventing the same firearms from being used again in criminal activities. In Perez, our supreme court agreed with this assessment…”
(Note: The trial court concluded that forfeiture of the guns would be grossly disproportionate; the state doesn’t contest this analysis, and the court of appeals affirms on that basis. ¶¶13-14.)


Harsh & Excessive -- Subsequent Reduction of Maximum Penalty

Harsh and Excessive – Post-Sentencing Reduction of Maximum Penalty
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265, 258 Wis. 2d 473, 654 N.W.2d 446
For Gallion: Randall E. Paulson, SPD, Milwaukee Appellate
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding: Subsequent legislative reclassification of offense, which substantially reduced maximum penalty, didn’t make Gallion’s sentence harsh and excessive. ¶¶73-74.

Review -- Inaccurate Information

Inaccurate Information – Prosecutorial Allocution
State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney
Issue/Holding: Asserted prosecutorial misconduct, in the form of misleading statements during allocution, is tested under State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498, 501 (Ct. App. 1992) (whether “what the prosecutor does has ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process’”), ¶15. On the merits, the prosecutor merely alluded to what the uncontradicted evidence at trial proved, hence “was wholly fair comment,” ¶17.
Does it make sense to import into the law of sentencing the test for mistrial occasioned by improper closing argument? Are these events sufficiently comparable? Not self-evidently so. If the court wants to go down that road, then why isn’t the test derived from Napue v. Illinois, 360 U.S. 264, 269-272 (1959) (defendant denied due process when prosecutor obtains conviction with aid of evidence prosecutor knew or should have known to be false and new trial required when there is a reasonable likelihood that false testimony affected verdict)? Worse, if the challenged argument “was wholly fair,” then why is the court fashioning a novel test? No error occurred anyway, there’s nothing to challenge, and the court’s exercise is entirely unnecessary. And worse still, the issue isn’t even ripe for review under this test (“Further, Haywood did not object to what the prosecutor did, and this forfeits his right to have review other than in an ineffective-assistance-of-counsel context,” ¶15.) So, the court has confected a novel test to deal with an issue that it says was really a mine-run no-harm no-foul ineffective assistance claim. Judicial activism, in a word. Maybe next time the court can wait till it has a record that actually supports grappling with the right test.
Accurate Information – Television Interview of Defendant, Relied on by Court
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether the sentencing court’s reliance on a television interview of the defendant, which led the court to criticize the defendant as “self-serving” rather than remorseful, violated the due process right to be sentenced on accurate information.
Holding:
¶24      We address first Lynch’s argument that the court had an obligation to give him advance notice that it was going to consider the television interview at sentencing. [7] The case he relies on, Gardner v. Florida, 430 U.S. 349 (1977), does not support his position. There the Supreme Court concluded that the sentencing court violated the defendant’s right to due process when it decided to impose the death penalty based in part on a confidential portion of the presentence report that had not been disclosed to the defendant. Id. at 355-62. A defendant has the right to an opportunity to rebut information presented at sentencing. State v. Damaske, 212 Wis. 2d 169, 196, 567 N.W.2d 905 (Ct. App. 1997). Obviously, if sentencing information is kept from the defendant, he or she cannot exercise this right. See Gardner, 430 U.S. at 360-61.

¶25      The facts of Gardner are not analogous to those here. The defendant in Gardner had no way of knowing what was in the confidential portion and, thus, no way to challenge its accuracy. Id. at 353. In this case, the contents of the interview were not kept secret from Lynch. Since Lynch gave the interview, he knew its contents and when it occurred. …

Other challenges going to editing and timing of interview rejected on basis that Lynch’s postconviction motion didn’t sufficiently preserve issue of evidentiary hearing to bring out underlying facts, ¶¶26-27.
Review -- Inaccurate Information – Review of Confidential Juvenile Records
State v. Jeris M. Moore, 2006 WI App 162
For Moore : Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶8        The issue in this case is whether the trial court erred when it denied Moore ’s motion without an in camera review of the confidential juvenile records. We conclude that the trial court should have conducted an in camera review to determine whether the contents of those records rendered the resulting sentence one that was based on inaccurate information. Because the trial court declined to review the confidential records, we reverse the postconviction order and remand the matter to the trial court with directions to conduct an in camera review. After the review has occurred, the trial court shall determine whether the records rendered the information relied on at sentencing inaccurate. If the trial court determines the confidential records did not render the sentencing information inaccurate, then the order denying Moore ’s postconviction motion shall be reinstated. If the trial court determines that the confidential records did result in reliance on inaccurate information at sentencing, then Moore ’s postconviction motion should be granted and resentencing should be ordered. [2]
 [2]   The trial court shall be guided by the new standard on this issue set forth in State v. Tiepelman, 2006 WI 66, ¶2, ___ Wis. 2d ___, ___ N.W.2d ___.
The sentencing court relied on prior juvenile contacts; Moore’s postconviction motion alleged that the PSI provided a biased, inaccurate account of the incidents and that juvenile court records would have presented a more rounded, exculpatory picture. The trial court, however, refused to allow Moore to present the confidential juvenile court records, and on remand must “conduct an in camera review of the confidential juvenile records to determine whether the records contain any information which renders the trial court’s reliance on the prior sexual assault incidents inaccurate,” ¶13. If this review shows that the sentencing information was inaccurate then a new sentencing hearing will be required, ¶14.
Review -- Inaccurate Information -- Test
State v. Larry A. Tiepelman, 2006 WI 66, reversing 2005 WI App 179
For Tiepelman: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether, on a claim that the sentence violated due process because based on inaccurate information, the defendant must show not only sentencing court reliance on the inaccurate information, but also prejudicial reliance.
Holding:
¶2        We hold that in a motion for resentencing based on a circuit court's alleged reliance on inaccurate information, a defendant must establish that there was information before the sentencing court that was inaccurate, and that the circuit court actually relied on the inaccurate information. Here, the court of appeals applied the wrong test——prejudicial reliance [2]——when it affirmed the circuit court. We must, therefore, reverse that affirmance, and withdraw any language in State v. Montroy, 2005 WI App. 230, 287 Wis. 2d 430, 706 N.W.2d 145, State v. Groth, 2002 WI App 299, 258 Wis. 2d. 889, 655 N.W.2d 163, State v. Suchocki, 208 Wis. 2d. 509, 516, 561 N.W.2d 332 (Ct. App. 1997), State v. Coolidge, 173 Wis. 2d 783, 496 N.W.2d 701 (Ct. App. 1993), and State v. Littrup, 164 Wis. 2d 120, 473 N.W.2d 164 (Ct. App. 1991), to the contrary.

¶26      We hold that the correct standard was set forth by this court in Lechner, in which the court held:  "A defendant who requests resentencing due to the circuit court's use of inaccurate information at the sentencing hearing 'must show both that the information was inaccurate and that the court actually relied on the inaccurate information in the sentencing.'"  Lechner, 217 Wis. 2d at 419 (quoting Johnson, 158 Wis. 2d at 468).  Once actual reliance on inaccurate information is shown, the burden then shifts to the state to prove the error was harmless.  As the Seventh Circuit Court of Appeals concluded in Lane:

A convicted offender does not have a constitutional right to a particular sentence available within a range of alternatives, but the offender does have a right to a fair sentencing process——one in which the court goes through a rational procedure of selecting a sentence based on relevant considerations and accurate information.
Lane, 738 F.2d at 864-65 (emphasis in original).
 [2]  Whether the test is actual reliance or prejudicial reliance is significant.  Obviously, establishing prejudicial reliance presents a far more difficult barrier for a defendant to overcome than establishing that the circuit court actually relied on inaccurate information at sentencing.
Potentially a very significant development. This is a pre-TIS case (sentencing after revocation), but this holding ought to impact TIS cases because TIS puts a premium on accuracy. E.g., State v. Gallion, 2004 WI 42, ¶34, relative to “enhanced need for more complete information upfront, at the time of sentencing.” Although Tiepelman doesn’t say anything about footing that bill, one implication is that sentencing courts will simply have to be more cautious about their assumptions. (Note the all-important reference in the quote from Lane to the sentencing process; results are often dictated by procedure.) In that sense, unquantifiable thought it might be, benefit should accrue to trial as well as appellate practitioners. But as to the latter: any time you’re considering a new-factor based motion to modify you ought to seriously consider whether to also (or instead) file an inaccurate-information motion—that’s because the new factor test will almost always satisfy the inaccurate information test but the latter is, especially now, much more forgiving (see discussion here); of course, there are greater risks, too (see discussion here), though that is generally true of the dynamic inherent to the risk-reward ratio.

Why this fuss? The court of appeals, in a series of cases, had distorted the test so that the defendant not only had to prove inaccurate information but also prejudicial reliance on the inaccuracy. Sometimes it didn’t matter (Groth: court found prejudicial reliance given highly inflammatory nature of the misinformation; Montroy: no reliance found, where trial court took remedial action and then explicitly disclaimed reliance), but in this instance things came to a head. Tiepelman’s trial court expressly relied on 20 prior convictions when he had only(!) 9, so that Tiepelman’s sentence was based at least in part on the erroneous belief he had 11 more convictions than actually existed. That was close enough for the court of appeals, which said in effect that there was no prejudicial reliance on any inaccuracy because it was Tiepelman’s behavior that counted not the gross number of convictions. Hard to square either result or analysis with such cases as United States ex rel. Welch v. Lane, 738 F.2d 863 (7th Cir. 1984) (judge’s mischaracterization of Welch’s prior conviction for armed robbery when it was in fact simple robbery required resentencing), a case cited with approval by Tiepelman, ¶¶13-14, 26. Now, with prejudice removed from the defendant’s burden of proof, the Wisconsin test is not only made much more manageable but is also brought back in line with constitutional requirements.

Potholes remain, to be sure. Availability of harmless error to save the sentence may or may not prove a big loophole for the State. The court doesn’t reach the issue on the particular facts, ¶31, largely because the State ended up conceding that Tiepelman should be resentenced; this decision, then, has no precedential value with respect to applying harmless error. Much more problematically, the court of appeals dropped two gratuitous footnotes which essentially game-planned for the State. This language wasn’t overruled, precisely because it is gratuitous, and there’s not much you can do but be aware of it and try to anticipate as much as you can in any given situation. Footnote 1 virtually invites the AG to make a waiver argument. This potential obstacle is easily enough rectified: just enter a timely objection. And postconviction counsel must be prepared to lodge an ineffective-assistance argument for trial counsel’s failure to do so. Footnote 2 has potentially broader impact, suggesting “that when the same judge presides at the postconviction hearing and at sentencing and determines that a sentence would be the same even with corrected information, the defendant has received a sufficient resentencing remedy.” That will have to be played by ear. It might be said that where it is clear the sentence would have been the same absent the inaccuracy the error is harmless, a point made by the dissent, ¶50; whether that can be said merely on the sentencing court’s say-so is something else, and is seemingly refuted by Groth (sentencing judge’s disclaimer of reliance on highly provocative (mis)information rejected by court of appeals), at least as an unvarying proposition.

One final point, with respect to the burden of proof. It is presently settled that the defendant’s 2-part showing must be made by clear and convincing evidence, Groth, ¶22. However, the court now expressly leaves that issue open, ¶25 n. 9: “There is nothing in State v. Johnson, 158 Wis. 2d 458, 463 N.W.2d 352 (Ct. App. 1990), State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), nor Welch v. Lane, 738 F.2d 863 (7th Cir. 1984), which indicates whether the defendant's burden of proof is clear and convincing evidence. Therefore, we do not decide that issue.” There is indeed something quite anomalous in the idea that a sentencing input need not be proved by anything more than preponderance yet the defendant’s refutation requires clear and convincing proof. The problem goes back to Littrup, which held that considerations of finality required that burden, 164 Wis. 2d at 131-32. But, finality isn’t generally a policy concern on direct appeal (as opposed to collateral attack or new-factor based sentence modification). In any event, the court didn’t explain how the interests of sentencing accuracy are served by the imbalance in burdens noted above; further, to the extent Littrup’s burden of proof discussion is bound up in its discussion of prejudice it, too, would now be overruled by Tiepelman.

Review -- Inaccurate Information -- Procedure for Challenging
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
On-Line Brief
Issue/Holding:
¶22. A defendant who asks for resentencing because the court relied on inaccurate information must show both that the information was inaccurate and that the court relied on it. Id. The defendant carries the burden of proving both prongs-inaccuracy of the information and prejudicial reliance by the sentencing court-by clear and convincing evidence. Id. See also State v. Littrup, 164 Wis. 2d 120, 132, 473 N.W.2d 164 (Ct. App. 1991). Once a defendant does so, the burden shifts to the State to show that the error was harmless. State v. Anderson, 222 Wis. 2d 403, 410-11, 588 N.W.2d 75 (Ct. App. 1998). An error is harmless if there is no reasonable probability that it contributed to the outcome. Id. at 411.
Review -- Inaccurate Information -- Necessity of Trial Court Reliance
State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn
Issue/Holding1: Though information before the sentencing court was indisputably inaccurate, the court took remedial action by ordering that this information be stricken, and thus Montroy can’t satisfy his burden of showing actual reliance on inaccurate information. ¶¶9-11. ( State v. Anderson, 222 Wis. 2d 403, 409-10, 588 N.W.2d 75 (Ct. App. 1998), distinguished: there, the court’s subsequent disclaimer of reliance was inconsistent with its comments at the sentencing hearing itself.)
Issue/Holding2: Although the PSI’s sentencing recommendation “was based on inaccurate information,” and although “the sentence essentially adopted the PSI’s sentencing recommendation,” the sentence was not thereby tainted by reliance on inaccurate information, given the sentencing court’s explicit disclaimer of reliance:
¶12 … However, as the court here acknowledged on the record, a sentencing court is not bound by the PSI’s sentencing recommendation. That the court ultimately reached a sentence in the same range as that recommended by the PSI, without more, does not demonstrate that the court relied on the PSI’s inaccuracies. Montroy has not provided evidence that, despite the court’s statement that it would not rely on the inaccurate information, it nonetheless did so when it sentenced him. Accordingly, Montroy’s reliance on Anderson is misplaced.
The holding is not as broad as this quote suggests. Whoever prepared the PSI was inept or dogmatic or both – he or she persistently recited the same inaccuracies despite court orders, ¶¶2-4; an habitual offender by any definition – but the sentencing court importantly took appropriate remedial action each time. The court twice ordered new PSIs, and when the 3rd PSI remained inaccurate the court threw up its hands and said it would simply ignore the defects, ¶4. In other words, the sentencing court was sensitive to, and took steps to ameliorate, the problem from the very outset – making it impossible for the defendant to show that the court’s disclaimer of reliance was somehow doubtful. But that background also indicates that the passage quoted above is misleadingly broad, at least to the extent that it suggests that judicial reliance on a PSI which is itself premised on inaccurate information isn’t enough to taint the sentence. The fact is that in this instance the sentencing court plainly did not rely on the PSI, not at least with respect to inaccurate information.

Hard cases, bad law. Montroy has a lengthy criminal history; it’s not recited in the opinion, except to mention that he had 6 juvenile adjudications, but you can find his entries on CCAP if you’re interested. Not difficult to imagine his being a chronic if low-level irritant to local authorities. On the current sentences he got 8 in, 8 out – perhaps that seems draconian by Pepin County standards, though elsewhere it might merely seem condign. But if it’s hard to take issue with the sentence per se, the beef with the PSI author is real enough. And yet … the court did take action on Montroy’s justified complaints. Note that Montroy did what a diligent litigant should have done, lodge contemporaneous objections resulting, ultimately, in the offending material being struck from the record – the sort of remedy approved by, for example, State v. David W. Suchocki, 208 Wis. 2d 509, 520, 561 N.W.2d 332 (Ct. App. 1997). In terms of curing the factual inaccuracies, Montroy seems to have done all that could have been done. So, too, the court: what else could it have done, short of recusing itself (which wasn’t requested)? Moreover, Montroy’s situation seems uncomfortably close to State v. Larry A. Tiepelman, 2005 WI App 179, PFR granted 12/14/05, in that both involved lengthy prior records, such that another one or two priors was just carrying coal to Newcastle (in the nature of surplusage, that is). Montroy’s beef, it bears repeating, was really with the PSI and not the judge, and it might be, then, that his argument thus suffers from misdirection. But how could he have framed the argument? He might, instead of focusing on the cured factual inaccuracies, have argued that the PSI was biased; how else, after all, to explain the author’s recidivism? He could then have argued that the court’s apparently undisputed reliance on the PSI’s sentencing recommendation as opposed to underlying inaccuracies was enough to taint the process. The principle is sound enough (e.g., Suchocki: “The process is not fair if the sentencing court relied upon a PSI from a biased writer”) in the abstract, though getting the court of appeals to accept the notion of PSI bias might have proved a tough sell. But it probably would have been a more straightforward sell than the pitch actually made.

Review -- Inaccurate Information -- Trial Court Disclaimer of Reliance not Controlling
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
On-Line Brief
Issue/Holding: The trial court's disclaimer (on postconviction ruling) of reliance on information challenged as inaccurate isn't binding on reviewing court; rather, appellate court "may independently review the record to determine the existence of any such reliance." ¶¶27-28. Here, the record shows that this disclaimer "was, at least in part, factually inaccurate" (the sentencing court seemed to adopt a remark by the prosecutor that itself embodied the inaccuracy); and the information -- that defendant beat pregnant women "is so heinous that it would be difficult (if not impossible or improper) for any sentencing court to ignore." ¶¶29-31.
¶34. Accordingly, we conclude that the record establishes both the State's conceded present inability to discern a factual basis for the information it presented about beating pregnant women and the sentencing court's apparent, consequential reliance on those allegations in sentencing Groth. Thus, "the integrity of the sentencing process" requires resentencing....

Modification/Review -- Judicial Estoppel Bar

Sentence Modification: Judicial Estoppel Bar -- Agreement to Recommended Sentence
Scott A. Magnuson, 220 Wis. 2d 468, 583 N.W.2d 843 (Ct. App. 1998)
For Magnuson: T. Gregory Amann
Issue/Holding:
We conclude that Magnuson is judicially estopped from asserting that the two twelve-year concurrent sentences are excessive. Although Magnuson contends he did not agree to the recommended sentence, the record belies his claim. Magnuson's probation officer set forth the recommendation in the presentence investigation report (PSI). The court asked Magnuson if he reviewed the PSI, and Magnuson's attorney stated that both he and Magnuson had reviewed it. After assistant district attorney Francis Collins concurred with the recommendation, defense counsel stated "we're also in agreement with the recommendations and also with what Mr. Collins has stated." During his allocution, Magnuson expressed no objection to the proposed sentence. The record thus demonstrates that Magnuson agreed to the proposed sentence. He cannot agree to the recommendation of an imposed and stayed sentence, violate probation, and then take the position on appeal that the sentence was excessive. If Magnuson objected to the recommendation, he should not have entered into the agreement.

Modification -- New Factors

Review - Sentence Modification - "New Factor," Generally
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶5 A new factor, as defined in Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), is
a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.
A new factor is something that frustrates the purpose of the sentencing court. See State v. Franklin, 148 Wis. 2d 1, 14, 434 N.W.2d 609 (1989). “To promote the policy of finality of judgments, strict rules govern the information that can be considered in a request for sentence modification.” State v. Carter, 208 Wis. 2d 142, 146, 560 N.W.2d 256 (1997) (citing Franklin, 148 Wis. 2d at 9).
Sentence Modification: New Factor, Generally
State v. Wayne Delaney, 2006 WI App 37
Pro se
Issue/Holding:
¶7        To have his sentence modified, Delaney must overcome two hurdles. First, he must demonstrate that a new factor exists. If so, he next must demonstrate that the new factor warrants sentence modification. State v. Franklin, 148 Wis.  2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor is a question of law this court decides without deference to the circuit court’s determination. Id. Whether the new factor warrants sentence modification, however, is a matter we entrust to the circuit court’s discretion. Id.

¶8        A new factor is a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties. Id. The effect of the “new factor” must frustrate the purpose of the original sentencing. State v. Michels, 150 Wis.  2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989).

Sentence Modification: New Factor, Generally
State v. Jose A. Trujillo, 2005 WI 45, affirming summary order of court of appeals
For Trujillo: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding:
¶13 We define a new factor as "an event or development which frustrates the purpose of the original sentence," Champion, 258 Wis. 2d 781, ¶4, and recognize it to be more than a change in circumstances since the time of sentencing. Crochiere, 273 Wis. 2d 57, ¶14. … As previously noted, to qualify for a sentence modification based on a new factor, the defendant must show: (1) a new factor exists; and (2) the new factor warrants modification of his sentence. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

¶14 Case law governing sentence modification based on a new factor is well settled. Champion, 258 Wis. 2d 781, ¶4. Wisconsin courts have reached the conclusion that many of the circumstances presented were not sufficient to establish a new factor. [9] See Crochiere, 273 Wis. 2d 57, ¶15. While there have been some cases where new factors have been identified, [10] there have been no cases involving TIS legislation where the reduction in penalties has been considered highly relevant to the imposition of sentence and, thus, a new factor.

The footnotes in this text aren’t reproduced here, just their links; what you’ll see is a dreary recitation of what have not, followed by a perversely illuminating list of what have been found to be a “new factor.” The former utterly dwarf the latter, which grandly total three in number; and of those lonely three examples, one is an instance of an increase in sentence, while the other two can equally be explained as accurate-information cases. For elaboration, go to comments under Crochiere summary. That said,you must also throw into the mix State v. John Doe, 2005 WI App 68 (cooperation with law enforcement is a new factor), which makes it hazardous to overgeneralize about new-factor based argument.
Modification -- New Factor -- General Test
State v. John Doe, 2005 WI App 68
For John Doe: Amelia L. Bizzaro (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”)
Issue/Holding:
¶6. Thus, sentence modification on the basis of a new factor is a two-step process. Id. First, the defendant must demonstrate, by clear and convincing evidence, that there is a new factor justifying a motion for sentence modification. See id. at 8-9. If the defendant demonstrated the existence of a new factor, the circuit court was then obliged to determine whether the new factor justifies modification. See id. at 8. In other words, in order to succeed on a claim for sentence modification based on a new factor, an inmate must prevail in both steps of the new factor analysis by proving the existence of a new factor and that it is one which should cause the circuit court to modify the original sentence. Id.

¶7. While the trial court explained, in its post-sentencing decision, its purposes for sentencing the defendant in the manner it did, and concluded that modification was not warranted, the trial court did so while operating under the mistaken belief that a new factor had to be something in existence at the time of sentencing. Finding that the evidence came into existence after sentencing, the trial court denied the motion. Consequently, the trial court's analysis was flawed. The holding in the seminal case of Rosado clearly provides that a new factor may be something that comes into existence after the sentencing proceeding has been held. Indeed, in State v. Ramuta, 2003 WI App 80, 261 Wis. 2d 784, 661 N.W.2d 483, this court stated that: "Our recent decision in State v. Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, is an excellent example of how something that happens after sentencing can be a new factor warranting sentencing modification because it frustrates what the sentencing court wanted the sentence to accomplish." Ramuta, 261 Wis. 2d 784, ¶10.

Elsewhere, the cynical view is taken that Norton is an outlier, that in practice there is really no such thing as a “new factor”; can two cases still be an aberration, or must they represent a trend?
Modification -- New Factor -- General Test
State v. Randy D. Stafford, 2003 WI App 138
For Stafford: Robert G. LeBell
Issue/Holding:
¶12. … To obtain sentence modification, a defendant must establish that (1) a new factor exists, and (2) the new factor justifies sentence modification. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor presents a legal issue which we decide de novo. Id. Whether a new factor justifies sentence modification, however, presents an issue for the trial court's discretionary determination, subject to our review under the erroneous exercise of discretion standard. Id.

¶13. A new factor is a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of the original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties. Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). Further, a new factor is "an event or development which frustrates the purpose of the original sentence. There must be some connection between the factor and the sentencing-something which strikes at the very purpose of the sentence selected by the trial court." State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (Ct. App. 1989).

Sentence Modification – New Factor – DOC Determination of Ineligibility for Boot Camp (CIP)
State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se
Issue/Holding: DOC determination that an inmate isn’t eligible for CIP doesn’t constitute a new factor, notwithstanding the sentencing court’s determination that he is eligible.
¶11      Here, the trial court determined that Schladweiler was eligible for the CIP. … The sentencing court expressly indicated that participation in the CIP is a possibility to be ultimately determined by the department, explaining to Schladweiler the sentencing modifications that would take place “ if you are placed in … the [CIP] as determined by the department.” (Emphasis added.) Based on these statements and the statutory framework which provides the DOC with the final word on his eligibility, Schladweiler simply cannot establish that the DOC’s potential denial of placement was a fact not known to the trial court at the time of sentencing.

¶14      In sum, there is nothing in the court’s explanation that in any way indicates that its sentencing decision was premised upon Schladweiler’s acceptance into the CIP. We therefore conclude that Schladweiler has failed to demonstrate that his inability to meet the CIP placement criteria frustrated the purpose of the trial court’s sentence. See Johnson, 158 Wis. 2d at 466.

Sentence - Modification - New Factor: Research on Adolescent Brain Development
State v. Omer Ninham, 2009 WI App 64
For Ninham: Frank M. Tuerkheimer, Bryan Stevenson, Rebecca Kiley, PFR filed 4/1/09
Issue/Holding:
¶9        Ninham has not established a new factor that would support a sentence reduction. A new factor is a fact “highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing.” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). It is a fact that frustrates the purpose of the original sentence. State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (Ct. App. 1989). Ninham contends recent research on adolescent brain development demonstrates biological reasons for adolescents’ inability to control impulses, avoid risky behaviors, and make good decisions, rendering them less culpable than adults or older teenagers. Recent research also shows adolesents’ amygdalas are more active than adults’. The amygdala is closely related to emotionally-laden responses. In addition, Ninham argues that mounting research suggests alcohol causes more damage to developing brains of teenagers than previously thought. The trial court correctly concluded the new research does not constitute a new factor. The court was aware of the differences between juveniles and adults. Continued medical and scientific research that provides a physiological explanation for the differences is not highly relevant to the sentence. The new information does not frustrate the purpose of the sentence.
True, new-factor analysis is often farcical, but this one appears to be exceptionally uninformative. “The court was aware of the differences between juveniles and adults”? Meaning what, exactly? That the sentencing judge indeed knew about the brain development research when it imposed sentence? That the research didn’t tell the judge anything important about adolescent-adult differences he didn’t already know at the time of sentencing? Or, more likely, that it didn’t matter anyway—“did not frustrate the purpose of sentence”—in which case, at least let us in on “the purpose of sentence,” and why it wouldn't be "frustrated" by any new research revelations.
Sentence - Modification - New Factor: Parole Policy
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding: The governor’s 1994 letter exhorting bureaucratic opposition to (pre-TIS) parole for certain crimes was not a new factor, even though the sentencing court expressly took into consideration DOC data purporting to show the likely chance of parole:
¶11 We held in Delaney that the Thompson 1994 letter was not a “new factor” in part because: (1) there was no showing that the 1994 letter had any impact on Delaney’s discretionary parole eligibility; [2] (2) the letter was not to the Parole Commission, but to the DOC Secretary who has no control over the Commission; [3] (3) the letter urged more aggressive conduct, but did not change existing law; [4] and (4) the letter did not mention parole, but referred only to mandatory release. [5] Thompson’s 1994 letter to the DOC Secretary is not a “new factor” justify ing sentence modification. Delaney, 289 Wis. 2d 714, ¶¶16-18.

¶12 Although unlike in Delaney, the trial court which sentenced Wood specifically considered when he would “likely” be paroled, nothing in the court’s sentencing explanation was a promise that he actually would be paroled at that date. Indeed, because an inmate’s behavior in prison has an impact on actually being granted parole, the trial court could not have ordered his release at a specific time.

Yet again, we are instructed as to what is not a new factor. In Delaney, the court of appeals stressed that the sentencing judge “neither expressly relied on nor discussed parole policy,” 2006 WI App 37, ¶12. But Wood’s judge did rely on assumed likelihood of parole release. That seemingly critical distinction turns out however to be meaningless.
Sentence -- Modification -- New Factor: Parole Policy
State v. Wayne Delaney, 2006 WI App 37
Pro se
Issue/Holding: Governor Thompson’s 1994 letter to the DOC exhorting pursuit of all available remedies to block release of (pre-TIS) violent offenders reaching their mandatory release date is not a new factor:
¶9        The existence of a new factor must be shown by clear and convincing evidence. Franklin, 148 Wis.  2d at 8-9. “In order for a change in parole policy to constitute a new factor, parole policy must have been a relevant factor in the original sentencing. It is not a relevant factor unless the court expressly relies on parole eligibility.” Id. at 15.

¶12      … The June 10, 1994 sentencing transcript reveals that Judge Flynn neither expressly relied on nor discussed parole policy. Nor did the judge address the April 28, 1994 Thompson letter, the parole board’s policy generally, or Delaney’s prospects for parole in particular. …

¶13      … Judge Flynn in no way suggested that Delaney would be paroled after serving only one-fourth of the time. To the contrary, the record demonstrates a sentence carefully fashioned after an express consideration of the relevant factors, and Delaney’s parole eligibility was not one of those factors.

¶16      Delaney also fails to show what impact the Thompson letter might have had on his discretionary parole eligibility. The letter refers only to Wisconsin’s mandatory release law, not parole eligibility. … Until 2014, Delaney will be eligible only for discretionary parole review. The Thompson letter thus does not apply to his situation.

¶21      In summary, Delaney has failed to establish that the Thompson letter was a new factor. The letter had nothing to do with parole and, even if we were to assume that it did, the prospect of parole played no demonstrated role in Judge Flynn’s sentencing of Delaney. As such, Judge Ptacek correctly rejected Delaney’s argument for sentence modification under the law of new factors.

Sentence -- Modification (at State’s Behest) -- New Factor: Defendant’s Economic Circumstance
State v. Frederick W. Prager, 2005 WI App 95
For Prager: Daniel P. Fay
Issue: Whether, six days after original sentencing and imposition of probation, the State’s proffered new factor (that defendant had quitclaimed the jointly owned farm to his wife) supported a modification to an active prison term.
Holding: Although the term of probation was premised in part on the economic hardship that defendant’s wife would suffer if he were sentenced to prison (¶¶4, 13), the farm was mentioned only peripherally at sentencing, and the circuit court failed to explain how the quitclaim deed (which would not in any event have expanded the spouse’s marital interest, see ¶15 n. 4) “was new or highly relevant to the original sentencing scheme or to the resentencing,” ¶15. Thus, the sentence modification is reversed, ¶19: “Given the circuit court’s extensive commentary and express interest in factors other than the quitclaim deed and its impact on the economic well-being of Prager’s family, we conclude that there was only a minimal connection between the factor and the court’s resentencing. For this reason, we are convinced that no new highly relevant factor exists.”
A very odd decision, in the sense that there is seemingly nothing of precedential value. The only thing the court ultimately concludes is that you can’t modify a sentence on the basis of some thoroughly inconsequential “new” fact. Really? Who knew? Indeed, a few days after the release of this opinion, the supreme court issued State v. Jose A. Trujillo, 2005 WI 45, reaffirming just how narrowly the court construes the existence of a new factor (see, esp., ¶14, nn. 9 and 10, which recite the cases on both sides of the ledger); and State v. James Hubert Tucker, Jr.. 2005 WI 46 (like effect). And so, a spelunking exercise is required, to explore the real meaning, which can only be found in the subtext.

You might think that, once Prager was placed on probation, he had a legitimate expectation in its finality, and thus earned double jeopardy protection against its increase to active imprisonment, see e.g., State v. Guy R. Willett, 2000 WI App 212. But double jeopardy protection with respect to sentence isn’t necessarily that well-defined. It is clear, for example, that fraud by the defendant eliminates a double jeopardy barrier to sentence increase, State v. Jones, 2002 WI App 208; and, there’s no impediment to “prompt” corrections of “obvious errors” based on “good faith” mistake, State v. Bart C. Gruetzmacher, 2004 WI 55. But the court explicitly rejected the idea of fraud by Prager (¶8), and there is no suggestion of any illegality or other obvious error in the original sentence. The supreme court has also held that probation is a nullity, and may therefore be supplanted with an active prison term, if premised upon a condition that turns out to be unfulfillable. State v. Sepulveda, 119 Wis. 2d 546, as clarified on reconsideration, 120 Wis. 2d 231 (1984) (“As stated in the concurring opinion, the imposition of probation was a nullity upon the impossibility for the condition of probation to be satisfied. The trial court, given the impossibility of fulfillment, was then free to modify its original sentence by imposing a new sentence of three years imprisonment.”). See also Trujillo, ¶14 n. 10 (“[T]he untreatable nature of an inmate's mental condition is such that it ‘frustrated’ a primary condition of his sentence” – a somewhat slippery characterization, more of which later). But that principle has no applicability to Prager, either. You might surmise (but no more than that) that the court of appeals was concerned about giving blanket authority to the State to seek new-factor-based reconsideration of sentence, but realized that bright-line prohibition would be a virtual invitation to review and possible reversal. And so the court expressly declined to reach the double jeopardy impediment, thus leaving the question open (¶¶10, 20) – only to do the next best thing, which was to dress up its limiting dicta as binding precedent:

¶20      As stated earlier, we do not reach the merits of Prager’s double jeopardy argument because our new factor analysis disposes of the appeal. See Castillo, 213 Wis. 2d at 492. Nonetheless, we observe that Prager was subject to a final judgment of conviction and sentence imposed on May 1, 2003, and signed on May 9, 2003. The circuit court subsequently set aside the conviction and declared the sentence void, raising concerns about whether the court’s resentencing was in fact the modification of an existing sentence or the imposition of a second conviction and sentence for the original offense. The Fifth Amendment’s Double Jeopardy Clause protects against multiple punishments for the same offense.  United States v. DiFrancesco, 449 U.S. 117, 120, 129 (1980). [6]
 [6]   A similar concern may be raised regarding Prager’s probation placement. In State v. Sepulveda, 119 Wis. 2d 546, 560, 350 N.W.2d 96 (1984), our supreme court held that a circuit court may use a new factor to invoke its power to modify the terms of probation under Wis. Stat. § 973.09(3)(a). Here, Prager’s probation was not modified; rather, it was abandoned upon resentencing. This was done despite the undisputed fact that Prager had not violated any of the conditions of probation. Prager’s resentencing served to revoke his probation without any finding of probable cause. Revocation of probation is an administrative, not judicial, procedure pursuant to Wis. Stat. § 973.10(1) and (2).
It’s possible, when you’re not the one on the receiving end, to appreciate just how clever these guys can be. The opinion applies mundane law to non-recurrent facts, derives an irresistible conclusion and by all rights therefore should resist review, if sought. And yet the language quoted is as close to favorable as you might want. That said, is it greedy to expect a yet-stronger statement? Fraud has always been regarded as an exception to double jeopardy. (The notion, of course, is that because of the fraud you were not actually placed in jeopardy in the first place.) And an “illegal” sentence works an exception for similar reasons (jeopardy can’t attach to an illegality; or, to put it otherwise, it’s hard to establish a legitimate expectation of finality in something that’s illegitimate). Why, though, should the State, in the absence of these narrow exceptions and the still further absence of any enabling legislation, be entitled to seek sentence modification? The court of appeals seems to have merely assumed the existence of such authority, but it is by no means clear that it exists, and it ought to be fiercely resisted. Sepulveda has to be dealt with, but it is certainly an outlier. Go back to the very holding of that case: “the imposition of probation was a nullity upon the impossibility for the condition of probation to be satisfied. The trial court, given the impossibility of fulfillment, was then free to modify its original sentence[.]” Keep in mind the facts, namely admission to Mendota was a condition of probation, but Mendota refused admission given Sepulveda’s unamenability to treatment, 119 Wis. 2d 549. (We’ve come a long way; now, Sepulveda would have no trouble gaining life-long admission to Mendota despite [because of?] his very untreatability.) Would’ve been nice to iron out this little detail prior to Sepulveda’s sentencing, but the fact remains that probation was premised on something that couldn’t be fulfilled, as the opinion makes clear. Recall the language of the opinion: probation was a nullity, then note the court’s gloss in later cases, that Sepulveda’s “untreatable … mental condition … ‘frustrated’ a primary condition of his sentence.” The characterization waters down the holding, to the point of mischaracterization. Sepulveda’s condition didn’t “frustrate” a “primary” condition of sentence; rather, his condition made the sentence impossible to fulfill. Again: probation became a “nullity”; akin, in that limited sense to an “illegal” sentence.
Modification -- New Factor -- Assistance to Law Enforcement
State v. John Doe, 2005 WI App 68
For John Doe: Amelia L. Bizzaro (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”)
Issue/Holding: “(A) defendant's substantial and important assistance to law enforcement after sentencing may constitute a new factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted,” ¶1.
¶8. Remarkably, there are no published cases in Wisconsin touching on whether post-sentencing substantial assistance to law enforcement is a new factor. We have looked to federal law for guidance, and have found it particularly instructive. The Federal Rules of Criminal Procedure specifically address post-sentencing assistance to law enforcement as an appropriate factor for possible sentence modification. See Fed. R. Crim. P. 35(b)(1)(A). Rule 35(b)(1)(A) expressly authorizes a reduction in a sentence if "the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person."4 Id.

¶9. A similar provision is found in the Federal Sentencing Guidelines. See U.S. Sentencing Guidelines Manual § 5K1.1 (2004). While § 5K.1.1 concerns sentence reductions for substantial assistance given to authorities before sentencing and affects the imposition of the original sentence, we find the enumerated considerations quite helpful in determining whether the post-sentencing assistance constitutes a new factor for the purposes of a postconviction motion for sentence modification as well. … We adopt these factors for the court's use in assessing whether the assistance constitutes a new factor.

¶10. We are satisfied that the broader rule of permitting the trial court, in appropriate cases, to modify a sentence after substantial assistance has been given to authorities, promotes sound public policy. Sentence modification should be available to those already sentenced who possess and can provide valuable information to law enforcement to assist in ferreting out and curtailing crime. To limit sentencing credit to only those facing sentences will act as a disincentive for prisoners to contact law enforcement when they either possess or come to possess valuable information that could prevent crimes or bring the guilty to justice. Indeed, permitting trial courts to modify sentences in this manner will also address some of the concerns expressed in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, about sentencing discretion in light of truth-in-sentencing changes …. In light of these conclusions, clearly the supreme court envisioned the trial court's need to have greater discretion in sentencing. Thus, we remand this matter for the trial court to apply the second part of the Franklin two-part test to determine whether the defendant is deserving of a sentencing reduction in light of his post-sentencing assistance. (Emphasis supplied.)

Remarkably, there are no published cases …. True, but that is simply because the court consistently, in an unbroken string of unpublished cases going back nearly two decades rejected the idea of post-sentencing assistance as a new factor. The court thus took it for granted that activity such as Doe’s was not a new factor, a conclusion apparently so obvious that publication was never warranted -- and a good thing, too: absence of negative precedent may have invited recurrent litigation, but it culminated in this reversal. Indeed, as recently as 12/3/02, the court came to the following (representative) conclusion, in State v. Nkosi K. Brown, 02AP0397:
¶22. Nkosi Brown claims that his "enthusiastic" post-sentencing cooperation with the federal government in an unrelated case is a new factor. We disagree. "Post-sentence conduct is not a new factor for sentence modification purposes." State v. Kaster, 148 Wis.  2d 789, 804, 436 N.W.2d 891, 897 (Ct. App. 1989). Nkosi Brown's cooperation with the authorities and his favorable progress in the prison rehabilitation system are matters to be considered by parole authorities, not the courts. See State v. Kluck, 210 Wis.  2d 1, 8, 563 N.W.2d 468, 471 (1997).

¶23. Moreover, Nkosi Brown's post-sentencing cooperation with the authorities does not frustrate the purpose of the original sentence. The trial court selected the sentence in part because Nkosi Brown refused to identify a co-actor in the robberies: "I also express my concern that Mr. Brown has not identified the coactor who participated in the armed robberies."2 Thus, Nkosi Brown's subsequent willingness to cooperate with law enforcement authorities is not a proper basis for sentence modification-indeed, it is evidence that the sentence is achieving its purpose. See id., 210 Wis. 2d at 10, 563 N.W.2d at 472 ("it flies in the face of reason and logic to modify a sentence that is achieving its purpose").

Doe, then, works substantial revision of caselaw, so that assistance to law enforcement may now be regarded a new factor, as a matter of law. (Of course, whether this will be enough in any given case to justify sentence reduction is a fact-specific, discretionary exercise which involves the second phase of the new-factor test; the point is simply that now, you can get to that stage and before, you couldn’t.)

There are several immediate points of interest. First is the court’s invocation of policy concerns, which is itself (to borrow a term) bifurcated into both a specific incentive to help law enforcement and a more general one to assure a fair and just result in light of the TIS abolition of parole. These aren’t unrelated considerations. Under a parole regime, cases such as Brown might readily dispatch a substantial-assistance argument by placing it in the rehabilitation-therefore-parole pigeonhole. That, of course, is no longer the case, as Doe recognizes. More interesting still, this conclusion runs counter to the prevailing (and heretofore rigidly adhered to) assumption that the TIS abolition of parole did not, as a matter of law, make rehabilitative progress a new factor, State v. James D. Crochiere, 2004 WI 78. (The court previously held that unavailability of parole, as in the case of misdemeanor sentence, similarly could not be a new factor, Kluck.) At least in the context of substantial-assistance, the TIS abolition of parole does impact new-factor analysis.

This leads to the second point, which is really more of a question: how far can you extend the holding? (It should be noted that no petition was filed by the AG and therefore Doe is final, and binding; no need, in other words, to ask whether the holding will stand.) Any extension beyond the immediate factual context is potentially problematic, as illustrated by the recent cases of State v. Jose A. Trujillo, 2005 WI 45 and State v. James Hubert Tucker, Jr.. 2005 WI 46 (TIS-II reduction of TIS-I penalties not new factor to support TIS-I sentence modification). Trujillo and Tucker might be read narrowly to mean that where the legislature has, however tentatively, occupied the field, then the matter so occupied can’t support a new factor. More concretely: the legislature has enacted a “safety-valve” provision, § 973.195, which both safeguards against TIS-I vs. –II disparity and also evinces legislative intent that this provision be the exclusive mechanism for relief on that particular ground. But to be sure, there is no language in these cases which explicitly supports such a narrow reading.  Moreover, some cases rejecting the proffered new factor have nothing to do with any legislative scheme. That said, there ought to be some effort to reconcile Doe with these cases. Doe is premised on the combined effects of the TIS abolition of parole, and societal value in encouraging revelation of crime. But we know that the first rationale is a nonstarter under Crochiere at least as a standalone argument. And the clear message of Trujillo (¶26, advancing “certainty of confinement” as the overarching goal of TIS, and rejecting “open-ended” sentence modification) is that “policy” grounds are viewed skeptically. If you assign a value of “zero” to each of these variables, then (zero + zero being zero), then it’s hard to explain Doe. But perhaps they each have some weight, however faint; or they synergize each other in some fashion. Or perhaps new-factor analysis is simply incoherent and doomed to yield idiosyncratic, irreconcilable results.

Finally, it should not – must not – be overlooked that the true significance of this case may lie in its impact on sentencing discretion, not post-sentencing procedure. Note, that is, the court’s explicit adoption of federal sentencing provisions, in the form of the FRCrP and USSGM; and, equally significant, note its invocation of Gallion, the seminal case on general sentencing discretion, and its linkage to the Guideline. It is hard to imagine, then, that the particular Guideline adopted by the court is limited to merely post-sentencing consideration; or that other Guidelines would be considered irrelevant to sentencing. Counsel therefore is well-advised to acquire at least a passing acquaintance with the Guidelines.

Sentence Modification: New Factor -- TIS-II, Reduced Penalty In Relation to TIS-I (Unclassified Felony) Sentence, Not New Factor
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:
¶2 We conclude, based on our holding in State v. Trujillo, 2005 WI 45, ___ Wis. 2d ___, ___ N.W.2d ___, that the reduced maximum confinement penalties under TIS-II do not constitute new factors when a defendant such as Tucker moves for the modification of sentences imposed under TIS-I. Although Tucker’s initial confinement time for his TIS-I felonies exceeded the TIS-II maximum for each sentence, the changes are not highly relevant to the imposition of his original TIS-I sentences. …

¶13 This case similarly involves a motion for sentence modification, where the defendant’s current penalties for possession with intent to deliver cocaine and felony bail-jumping under TIS-I exceed the maximum penalties for those crimes under TIS-II. Accordingly, our decision in Trujillo is controlling. Thus, we conclude that a reduction in the maximum penalty under TIS-II is not a new factor and that the circuit court ruled correctly when it concluded that no new factor was present and therefore denied Tucker’s motion for sentence modification.

Sentence Modification: New Factor -- TIS-II, Reduced Penalty In Relation to TIS-I Sentence, Not New Factor
State v. Jose A. Trujillo, 2005 WI 45, affirming summary order of court of appeals
For Trujillo: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether the TIS-II reduction of penalty, such that this TIS-I defendant was sentenced to confinement exceeding what would have been the TIS-II maximum, is a “new factor” supporting modification of sentence.
Holding:
¶21 We are not persuaded by Trujillo's attempt to convince us to distinguish Hegwood and overrule Torres. We agree with the court of appeals in Torres that the holding in Hegwood should be applied to sentence modification motions involving TIS legislation. Trujillo does not present a sufficient reason as to why the legislature’s two-stage implementation of TIS should be considered a new factor, especially since we have never held that the reduction of maximum penalties was a new factor in any other case, where the legislature has not mandated the retroactive application of the lower penalties.

¶22 We also conclude that Trujillo's argument, that we should hold that there is a new factor here, is not consistent with the plain language used by the legislature in the TIS-II enactments. …

¶23 … We hold, in line with Hegwood and Torres, that the omission by the legislature of retroactive language in enacting TIS-II is significant, and we accord deference to that legislative decision. [13]

The remedy for potential TIS-I sentencing disparity is § 973.195 which, the court holds without elaboration, is “adequate” to this task, ¶25. Consider, though, the tension this creates with the very purpose of TIS. The court, that is, stresses that the goal of TIS “is to create certainty of confinement,” ¶26. And this goal, the court says, is inconsistent with the idea of “open-ended” sentence modification, id. Put aside the yawning gap in logic (no one has ever claimed that new-factor based reduction is “open-ended”; and in any event this begs the question of whether the legislature can prevent the judiciary from exercising its inherent authority): mere days before releae of this decision, the court of appeals cavalierly dismissed the notion that a guilty plea defendant is entitled to know that a specific consequence of the plea is confinement time up to a specified length, State v. Richard C. Plank, 04AP2280-CR, Dist. III, 4/19/05. Here, then, is the tension: “the certainty as to the duration of confinement at the time a sentence is imposed” trumps any possibility of modifying sentence; but when it comes to requiring that the guilty plea defendant actually know about this all-important consequence, then all of a sudden the significance of adamantine punishment vanishes from sight. Certainty of punishment for purpose of keeping the defendant confined; but not for confining him in the first instance.
Modification -- New Factor -- TIS-I: Elimination of Parole
State v. James D. Crochiere, 2004 WI 78, affirming unpublished opinion
For Crochiere: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether post-sentencing events such as rehabilitation which would not be considered “new factors” supporting reduction of indeterminate sentence may be regarded as new factors under the determinate regime of TIS-I.
Holding:
¶9. Crochiere bases his argument for sentence reduction, in part, on this shift away from the executive branch's participation due to the legislature's elimination of parole. He contends that this change brought about through TIS-I requires courts to examine rehabilitative progress and to conclude that since there is no longer any other way to review it, rehabilitation must become a new factor upon which a circuit court may base sentence modification. …

¶17. Crochiere claims he has shown a new factor by his rehabilitation and the court's lack of knowledge of his child support obligation. …

¶20. Crochiere contends that we should reject the reasoning in Champion because Champion was grounded solely on the inmate's rehabilitation during incarceration. While by comparison, Crochiere also has a child support obligation, which was not known to the circuit court at sentencing and is linked to his rehabilitation….

¶21. The circuit court held a hearing to permit Crochiere to develop all the facts relevant to his child support obligation. The court then reviewed the factors on which it based Crochiere's sentence and concluded that its lack of knowledge that Crochiere had a son to help support would not have affected the sentence it imposed. … Therefore, even though the circuit court initially was unaware of Crochiere's obligation to support his son, that fact was not one that frustrated the purpose of the sentence imposed.

¶22. Additionally, Crochiere's rehabilitation is not a circumstance that frustrates the purpose of the sentence. … The court was of the opinion that Crochiere was a danger to the community. Deterrence and punishment were the major factors upon which the court focused. And, as has been noted, rehabilitation while incarcerated is not a circumstance that will frustrate the purpose of a sentence, Champion, 258 Wis. 2d 781, 13, as we conclude it is likely that circuit courts sentence with the hope that rehabilitation will occur.

¶23. Furthermore, Crochiere's early release would undercut the seriousness of the offense, the court's concern about the victim's injuries and its efforts at protecting the public. And, as Champion pointed out when interpreting TIS-I, the legislature intended that conduct subsequent to incarceration would not reduce an inmate's sentence.13

¶24. And finally, a decision on whether to modify a sentence is within the circuit court's discretion. …

¶25. Here, when the circuit court became aware of Crochiere's child support obligation, it held a hearing to take additional testimony to determine whether that fact would have caused it to select a sentence different from that which it imposed and concluded it would not. It also concluded that Crochiere's rehabilitation was insufficient to constitute a new factor. In so doing, the circuit court correctly identified and applied the law. Accordingly, we conclude that the circuit court appropriately exercised its discretion in refusing to modify Crochiere's sentence.14

The court somewhat coyly acknowledges that “new factor analysis has been applied to a multitude of factual circumstances, with appellate courts often reaching the conclusion that the facts presented were insufficient to establish a new factor,” ¶15. Often? Only if that’s a synonym for always. The court’s examples of viable new factors, ¶16, is revealing: Sepulveda found a new factor that supported an increase in sentence; Stafford may have found a new factor in a formal sense, but is better understood as involving a different theory (accuracy of informational inputs); and Norton too is premised on the right to be sentenced on the basis of accurate information, 2001 WI App 245, ¶¶11-16 – at worst, Norton just might be singular, an anomaly (an “outlier,” to use a voguish term). That said, the court of appeals subsequently found a new factor, in State v. Tony G. Longmire, 2004 WI App 90, ¶¶42-46: where the length of extended supervision was premised on a hefty restitution order and that order was reduced on appeal, the trial court should be given the opportunity to revisit the question of the length of extended supervision. But it's hard to see why this result could not also be based on the idea that the term of supervision became premised on inaccurate information, namely the amount of restitution.

UPDATE: A federal case discussing the distinction between a sentence which is based on inaccurate information and one whose intent has somehow been thwarted helps explain problems with the Wisconsin approach, U.S. v. Eakman, 3rd Cir. No. 03-1835, 7/12/04. There, the sentencing judge relied on a mistaken understanding that the prison authority could place Eakman in a half-way house; not that it would happen, only that it could. On habeas review, the government argued that frustration of the judge's expectations wasn't enough to show error of constitutional magnitude (something that is necessary for entertaining the collateral attack). The leading case is U.S. v. Addonizio, 442 U.S. 178 (1979), which says that a change in parole policy didn't invalidate the sentence, even though it thwarted the judge's sentencing expectation. In other words, constitutional sentencing error has to be "objectively ascertainable," and can't rest on the frustration of subjective intent of the sentencing judge. But Eakman's instance was critically distinguishable: "Unlike Addonizio, Eakman does not challenge his sentence on the basis that the district judge made a bad predictive judgment about how his sentence would be executed – he rather argues that the court misunderstood the law." Back to Wisconsin: thwarting, or frustrating, the judge's sentencing intent is sufficient to raise an out-of-time sentencing challenge, albeit under a "new factor" rubric. In the federal system, constitutional error is required for a non-direct-appeal attack; in Wisconsin it isn't. And yet, Wisconsin case law seems in practice to have merged the doctrines, virtually from the dawn of the new factor test. Thus, in a situation very similar to Eakman's, the Wisconsin supreme court authorized sentence modification on new factor grounds, when due process / inaccurate basis might have been closer to the mark: Kutchera v. State, 69 Wis.2d 534, 230 N.W.2d 750 (1975) (misinformation re: parole eligibility -- a misunderstanding of applicable law, as the Eakman court would have put it, and not merely "a bad predictive judgment about how his sentence would be executed"). Initially, the definition of a "new factor" was left vague, its only purpose being to ensure that a sentence wasn't reduced on "mere reflection." State v. Foellmi, 57 Wis.2d 572, 582, 205 N.W.2d 144 (1973). At some point along the way, the test morphed into the rigid, formidable, thwarted-intent obstacle. And even at that, an Addonizio-type argument (frustration of sentencing judge's intent with respect to likelihood of parole) would not support a new factor basis for sentence modification, see State v. Franklin, 148 Wis.2d 1, 434 N.W.2d 609 (1989). The long and short of it is that few if any new factor arguments could not also be cast as due process / inaccurate information arguments. The latter test is more forgiving (e.g., State v. Jeffrey R. Groth, 2002 WI App 299, ¶22: "A defendant who asks for resentencing because the court relied on inaccurate information must show both that the information was inaccurate and that the court relied on it"; and Eakman: sentencing judge (1) "made an objectively ascertainable error," and (2) "materially relied on that error"). If in any given case inaccurate-information seems to fit as well as new-factor, then some thought ought to be given to grounding the motion in that theory. (As with anything, caveats may apply. It may be that inaccurate-information will subject the client to a greater risk, in that the remedy in the first instance is procedural, namely resentencing. See discussion here, scrolling down.)

Modification -- New Factor -- TIS-II, Change in Offense Classification and Penalty Structure
State v. Jonathan R. Torres, 2003 WI App 199, PFR filed 9/18/03
For Torres: Michael Yovovich, SPD, Madison Appellate
Issue: Whether reclassification of Torres’ offense by TIS-II, 2001 Wis. Act 109 §§545-559, which substantially reduced the maximum penalty, amounts to a new factor that would support reduction of his sentence imposed under the prior, TIS-I regime.
Holding:
¶7 First, we conclude that a change in the classification of a crime, which would result in a shorter sentence if the defendant were convicted under the new classification, is not a “new factor” under our traditional model for sentence modification. This is because as part of 2001 Wis. Act 109, the law created WIS. STAT. § 973.195, which provides the procedure for judicial review of a sentence when the law relating to sentencing changes.

¶9 WISCONSIN STAT. § 973.195 reflects the legislature’s intent to create a separate and specific statutory procedure for requesting a sentence reduction that should be used in place of WIS. STAT. § 809.30 (2000-01) whenever “a change in law or procedure related to sentencing … effective after the inmate was sentenced that would have resulted in a shorter term of a confinement” is the basis for the modification.2 WIS. STAT. § 973.195(1r)(b)(3). Torres’ October 2002 filing of a § 809.30 motion based on the pending February 2003 change cannot be used to defeat the purpose of § 973.195. If Torres wanted to avail himself of the 2003 sentence change as a basis for his sentence change, he was required to follow the § 973.195 procedure, which he could not do until February 1.

¶11 Second, in Hegwood, the supreme court concluded that a reduction in the maximum penalty does not constitute a new factor and is therefore not a proper basis for modifying a sentence. Hegwood, 113 Wis. 2d at 548.

¶12 ... Torres is in the same situation as Hegwood—there is no mandatory retroactive application of the lower penalty—so the Hegwood rule applies and the change in penalty is not a new factor.


2 The motion in this case also alleges the trial court erroneously believed at sentencing that Torres was in a gang, although that issue is not before us. However, we note that where there are other grounds for requesting modification, or where there are other new factors separate from the WIS. STAT. § 973.195 grounds, a defendant is not precluded from filing a WIS. STAT. § 809.30 motion in addition to a § 973.195 petition. The grounds upon which a § 973.195 petition is based are specific and limited.
Modification/Review – New Factor, Extended Supervision – TIS-II Reduction in ES Maximum
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶42. Finally, Longmire cites three matters which he argues are "new factors" and thus grounds for the trial court to modify his term of extended supervision:  (1) a reduction in the maximum term of extended supervision for the class of felony of which Longmire was convicted; (2) the rationale of the Criminal Penalties Study Committee Final Report on 1997 Wisconsin Act 283 for recommending reduced maximum terms of supervision….

-…

¶45. Longmire contends that both the reduction in penalty and the rationale behind it constitute new factors for the purposes of sentence modification. However, it has long been the law in Wisconsin that a reduction in the maximum penalty for a crime subsequent to a defendant's sentencing is not a new factor….

¶46. We conclude that, just as a change in the classification and maximum sentence of a crime is not a new factor for traditional sentence modification purposes, neither is the rationale underlying the change. The study committee's rationale for recommending to the legislature that certain maximum terms of extended supervision be reduced is not a "fact or set of facts" relevant to the imposition of Longmire's sentence. Rather, it is an opinion on an aspect of correctional policy held by a committee created to conduct a study and make recommendations regarding the implementation of the Truth in Sentencing laws in Wisconsin….

Modification/Review – New Factor, Extended Supervision – Reduction in Restitution
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶47. Finally, we acknowledge (and the State does not dispute) that the amount of restitution the court ordered Longmire to pay played a significant role in the court's determination of the length of extended supervision it ordered. We have directed that the restitution amount be reduced from $34,985 to $27,252. We conclude that this twenty-two percent reduction in restitution constitutes a new factor given the prominent role the restitution amount played in the court's sentencing decision. We therefore direct that on remand Longmire may renew his motion for a reduction in the term of his extended supervision on the basis of this new factor. Because the trial court may or may not conclude that the reduction in restitution we have ordered warrants a modification, and because this factor was not present when the court entered the appealed judgment and order, we will not vacate Longmire's present sentence or reverse the postconviction order denying sentence modification.
Modification -- New Factor -- General Test
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
Issue/Holding:
¶8. The law appropriately recognizes that sentences may be based on what is unknowingly incomplete information, and, if they are, that there should be some mechanism to correct a resulting injustice. Thus, if after sentencing it turns out that there was something that would have been important to the sentencing court but was either unknown or unknowingly overlooked, the court may resentence the defendant to take the new matter into account. State v. Macemon, 113 Wis. 2d 662, 668, 335 N.W.2d 402, 406 (1983). The hurdle, however, is fairly high: the new factor must be "highly relevant" to the sentence so that its newly revealed existence "frustrates" the court's sentencing intent. State v. Michels, 150 Wis. 2d 94, 98-99, 441 N.W.2d 278, 280 (Ct. App. 1989). A defendant must prove by "clear and convincing evidence" that what he wants the sentencing court to consider is a "new factor." State v. Franklin, 148 Wis. 2d 1, 9, 434 N.W.2d 609, 611 (1989).

¶9. We review de novo whether something is a new factor. Id., 148 Wis. 2d at 8, 434 N.W.2d at 611. "[W]hether the new factor justifies modification of the sentence" is, however, within the trial court's discretion. Ibid.

Go To Brief
Modification -- New Factor -- PSI Assessment Tainted by Conflict of Interest
State v. Randy D. Stafford, 2003 WI App 138
For Stafford: Robert G. LeBell
Issue/Holding: A mental health professional whose assessment of the sexual assault defendant was incorporated into the presentence report and cited at length by the sentencing judge and who had, unbeknownst to the defense, treated the victim for the six months prior to the assessment, had a conflict of interest that amounted to a new factor requiring resentencing.
The result is favorable, but that shouldn’t obscure the idea that the new-factor test is all but unworkable: it takes facts as extreme as these to compel relief. (Doesn’t hurt to throw good lawyering into the mix, either, as this result attests.) The parties and the PSI all recommended probation; the judge meted out 10 years. But as the summary above suggests, the PSI incorporated an assessment from a “mental health professional” (sneer quotes, because she was unlicensed) who labored under a very clear conflict of interest; who was very likely inept (her conclusion that Stafford is a pedophile was later conceded to be erroneous, ¶16); and whose assessment was heavily relied on by the sentencing judge, ¶17, despite his subsequent, less-than-credible contrary assertion. So, you’ve got a sentencing wildly out of line with unanimous recommendations, and based on a hopelessly tainted evaluation. Why isn’t that alone enough to warrant resentencing? Indeed, the court of appeals cites as “persuasive” a  holding that a presentence report author’s conflict of interest renders the sentencing unfair (at least if the sentencing court relied on the tainted PSI; but here reliance isn’t a problem). ¶9, citing State v. Suchocki, 208 Wis. 2d 509, 520, 561 N.W.2d 332 (Ct. App. 1997), a case has also been cited for the following proposition: “A defendant is entitled to resentencing when a sentence is affected by a trial court's reliance on an improper factor.” State v. Leitner, 2001 WI App 172, ¶39, 212, 247 Wis.2d 195, 633 N.W.2d 207, affirmed, 2002 WI 77, 253 Wis.2d 449, 646 N.W.2d 19. It ought, in other words, to suffice here that an important component of the PSI was both tainted and relied on by the sentencing judge; the sentence was based on tainted information and resentencing should ineluctably follow. You can say that the sentence was an erroneous exercise of discretion (because based on an improper factor, namely the discredited assessment). And you might similarly say that the sentence was a violation of due process (because the integrity of the PSI – which is really an arm of the judge – was tainted). It’s simply not necessary to descend into the swamp that the new factor test has become. But the court of appeals’ embrace of the new factor test is too strong to permit such disentangling, and the result is an overly complex analysis. Stafford clears new-factor hurdles because he wasn’t aware of the conflict of interest until after sentencing, ¶15; and the trial court’s reliance on the tainted assessment was demonstrable (the court repeatedly referred to and quoted from the assessment), ¶16. Note, though, that the court of appeals fudges a bit at the finishing line: a new factor is supposed to thwart “the very purpose” of the sentence, but the court doesn’t even cite that requirement, ¶¶18-19. Instead, the court
recognizes that sentences may be based on what is unknowingly incomplete or inaccurate information, and, if they are, that there should be some mechanism to correct a resulting injustice. Here, Nooe's treatment of the victim prior to her assessment of Stafford undermines our confidence in the objectivity and accuracy of her report and, as a result, the fairness of the sentencing process to Stafford. We, therefore, conclude that the trial court erroneously exercised its discretion in determining that a modification of Stafford's sentence was not justified. Accordingly, we reverse and remand for resentencing.
 ¶19. Well, yeah, that’s just about right, but the connection to the new factor test isn’t apparent. And if you take out paragraphs 12 through 18 then you’ve got an opinion that makes sense.
Modification -- New Factor -- Health
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
Issue/Holding:
¶21. Further, Ramuta's obesity-related health problems and his resulting shorter-than-normal life expectancy are also not new factors. See Michels, 150 Wis. 2d at 99-100, 441 N.W.2d at 280-281 (defendant's health and its post-sentence worsening not new factors). Ramuta not only knew about his condition when he appeared before the trial court in Milwaukee, but, contrary to his contention, the trial court's sentencing comments do not envision either its expectation or desire that Ramuta would actually survive his confinement; the trial court merely wanted to assure, as it explained in its written decision denying Ramuta's motion for postconviction relief, that Ramuta, if released, would no longer be able to terrorize the community:
The court was fully aware that the defendant would be age 76 at the end of initial confinement and age 90 at the end of extended supervision. The court specifically intended the defendant to be too old to terrorize the community before he would ever be released, and it specifically noted that previous long periods of confinement were ineffective to provide deterrence.
(Trial court's references to the sentencing transcript omitted.) Ramuta's obesity is not a "new factor."
Go To Brief
Modification -- New Factor -- Subsequent Sentence
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
Issue/Holding: Subsequent sentences on charges pending at the time of this sentencing didn’t amount to a new factor,
State v. Norton, 2001 WI App 245, distinguished:
¶20. Ramuta has not demonstrated by clear and convincing evidence that either the Waukesha sentencing was unknown or overlooked, or that the sentences imposed by the court in Waukesha frustrated the intent of the trial court's sentencing scheme under review here. The Waukesha sentences are not new factors any more than would be, as Norton pointed out, sentences later imposed following a revocation of probation. Norton, 2001 WI App 245 at 10, 248 Wis. 2d at 168, 635 N.W.2d at 659 ("revocation of probation in another case does not ordinarily present a new factor").
Go To Brief
Modification -- New Factor -- Rehabilitation -- Truth-in-Sentencing
State v. Dawn M. Champion, 2002 WI App 267, PFR filed 12/2/02
For Champion: Patricia L. Arreazola
Issue: Whether the defendant's early completion of all available rehabilitation programs is a new factor justifying reduction of the confinement portion of her sentence.
Holding:
¶13. Our review of the legislative history of 1997 Wis. Act 283 demonstrates that the legislature intended something inconsistent with Champion's proposal. That is, the legislature intended that truth-in-sentencing create certainty as to the duration of confinement at the time a sentence is imposed, something fundamentally inconsistent with the open-ended availability of sentence modification based on post-sentencing factors relating to rehabilitation. ...

¶17. Accordingly, we conclude that the legislature, with the limited statutory exceptions noted above, intended that truth-in-sentencing inmates serve every day of the confinement term imposed. Regardless whether Champion's proposed expansion of "new factor" law is good or bad policy, it must fail because it would seriously undermine the legislature's intent to create certainty in the length of confinement at the time of sentencing. It is not reasonable that the legislature would intend to provide both the defendant and the public with certainty regarding confinement and at the same time permit the courts to undo that certainty with the change in sentence modification law proposed by Champion. At the same time, we stress that this opinion should not be read as suggesting the legislature has undone "new factor" case law. Nothing in this opinion affects a defendant's right to seek sentence modification under existing "new factor" law.

(This rationale is entirely unconvincing: if truth-in-sentencing "certainty" has such trump value, then why is any new factor-based modification permissible? The court, that is, utterly fails to explain why extant new factor law survives but only in a frozen-in-amber sense. But, there you have it; the right to seek denial of a new-factor motion remains.)
Modification -- New Factor -- Defendant's "New-Found Realization" of Past Victimization
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: The defendant's new-found realization that his behavior was caused by childhood sexual exploitation isn't a new factor justifying sentence reduction: "¶25 ... Just as a new expert opinion based on previously known or knowable facts is nothing more than the newly discovered importance of existing evidence ... not newly discovered evidence for purposes of plea withdrawal, a court's recharacterization or reweighing of previously known facts is not a new factor for sentence modification purposes." (Internal quotes omitted.)
Modification -- New Factor -- Post-Sentencing Revocation -- Linkage to Intended Drug Treatment
State v. Steve Norton, 2001 WI App 245
For Norton: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether an unanticipated, post-sentencing revocation amounted to a new factor justifying modification of sentence.
Holding:
¶10. Although we agree with the State that, in general, revocation of probation in another case does not ordinarily present a new factor, the specific facts involved in this case require an exception to the general rule. ...

¶13. The question here is whether such circumstances present a new factor and, if so, whether sentence modification is warranted. We conclude that the circumstances do constitute a new factor and resentencing is required because the inaccurate information relied on by the trial court frustrates the purpose of the sentence. A new factor is a set of facts highly relevant to sentencing, but not known, or not in existence, at the time of sentencing. The probation and whether it was going to be revoked was highly relevant to sentencing. The trial court focused on imposing a sufficiently long sentence to permit Norton to "dry out" and become "drug free." The trial court was advised that Norton's probation was not going to be revoked as a result of the felony theft committed in the instant case. The prosecutor expressed disappointment that the probation would not be revoked, and the trial court inquired as to why the probation was not being revoked. After discussing the probation and understanding that the nine-month sentence would not have any impact on the instant case, the trial court proceeded to impose its sentence. The trial court believed that the nine-month stayed sentence from the misdemeanor conviction would not be an issue.

¶14. In a case where a defendant commits a new crime while on probation, whether or not the defendant will be exposed to the sentence underlying the probation is significant. A criminal sentence should represent the minimum amount of custody consistent with the factors of the gravity of the offense, the character of the offender, and the need to protect the public. State v. Setagord, 211 Wis. 2d 397, 416, 565 N.W.2d 506 (1997). It was not known to the trial court at the time of sentencing in this case that Norton's probation would be revoked; rather, the trial court was advised by Hubbard that probation was not going to be revoked. Thus, the trial court imposed a sentence in this case which was based on inaccurate information.

¶15. Moreover, the inaccurate information was directly linked to the purpose of the sentence. As noted, the State recommended thirty months in prison, indicating that this would be sufficient to 'dry Norton out.' Both defense counsel and Hubbard recommended at least twenty-four months in prison so that Norton would become drug-free. The trial court, referencing Norton's need for drug treatment, imposed a forty-two month sentence.

¶16. Norton has a right to be sentenced on accurate information. State v. Slagoski, 2001 WI App 112, ¶7, 244 Wis. 2d 49, 629 N.W.2d 50. Under the circumstances here, Norton's sentence was based, in part, on inaccurate information from an ordinarily reliable source -- a probation agent. Accordingly, we must reverse and remand for resentencing to permit the trial court an opportunity to review the sentence with the benefit of the new information; i.e., that Norton must now serve the nine-month sentence on the misdemeanor theft.

Modification -- New Factor -- Lesser Culpability -- Not "Unknowingly Overlooked"
State v. Andre D. Crockett, 2001 WI App 235, PFR filed
For Crockett: David D. Cook
Issue:Whether facts suggesting that the defendant might have been less culpable than his codefendants amounted to a new factor justifying modification of sentence.
Holding: A new factor may be relate to facts "unknowingly overlooked" at sentencing; here, although the asserted new factor may have been unknowingly overlooked by the sentencing court, the defendant makes no claim that he was unaware of it, and it therefore fails the test. ¶14, citing State v. Kluck, 210 Wis. 2d 1, 7, 563 N.W.2d 468 (1997).
Modification -- New Factor: Community Support
State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530
For Koeppen: Richard L. Zaffiro
Issue/Holding: Level of community support" enjoyed by the defendant not a new factor justifying sentence reduction.
Modification -- New Factor: Reversal of Conviction in Another Case
State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook
Issue/Holding: Reversal of defendant's conviction in another case is new factor (where remaining, valid sentence was concurrent to vacated sentence) upon which trial court may, but is not required, to reduce sentence.
Modification -- New Factor -- Escalona-Naranjo Bar to Raising
State v. John Casteel, 2001 WI App 188, PFR filed
Issue: Whether Casteel's failure to argue in a prior new-facotr based attempt to modify sentence bars him from now arguing that the special action release program, § 304.02 -- a statute extant at the time of the prior motion to modify -- is a new factor.
Holding:
¶17. We note that the special action parole release statute was first adopted in 1989. See 1989 Wis. Act 31. In 1993, Casteel argued that a new factor justified resentencing, but did not raise the current issue. See Casteel, Nos. 93-1306-CR and 93-1307-CR. In the additional six appeals since 1989, Casteel failed to raise this issue. He has not provided any reason that prevented him from arguing it previously. His appeal on this issue is untimely. See Escalona-Naranjo, 185 Wis. 2d at 181-82.
This reasoning is dubious. Escalona merely interprets § 974.06 -- the statutory authority for collateral attacks on convictions; the limits it imposes on serial litigation are those it discerned in the statute. Sentence modification, on the other hand, is an exercise of inherent, common law authority, and importing purely statutory restrictions into this exercise is arbitrary. Nonetheless, the case is on the books and so long as it is strictly limited to its facts (asserted new factor extant at time of prior new-factor motion; no attempt to explain why not raised), then the impact may be limited.
Modification -- New Factor: Transfer to out-of-state Prison
State v. Anthony A. Parker, 2001 WI App 111
Issue: Whether transfer to an out-of-state prison was a new factor supporting sentence modification.
Holding:
¶11. Parker contends that his transfer out of state is a new factor that frustrates the purpose of his sentence because his placement no longer coincides with the judgment of conviction confining him to 'Wisconsin state prisons.' Parker's reliance upon these words is excessively literal and finds no support in the case law. In Evers, we held that such language simply identifies the initial place of imprisonment for those who are imprisoned for more than one year. Evers, 2000 WI App 144 at ¶12. It creates neither a right of inmates to remain in Wisconsin institutions nor a restriction on the authority of the department to place inmates outside of Wisconsin when appropriate. Id.; see also Lambert, 35 F. Supp. 2d at 1132. Consequently, Parker's transfer to a Minnesota prison does not violate his judgment of conviction.

¶12. Moreover, in reviewing the sentencing transcript, there is no indication that serving a portion of his term in a Minnesota prison, as opposed to a Wisconsin one, somehow frustrates the original intent of the trial court's sentence. Indeed, the transcript makes clear that the court was primarily concerned about protecting the public from the violent conduct demonstrated by Parker in the case before it and his criminal history. The sentence was based on the gravity of the offense, the need for protection of the public, and Parker's need for reform. Accordingly, we reject his claim.


Modification -- Procedure

Modification -- Procedure -- Necessity of Motion
State v. Roger S. Walker, 2006 WI 82, affirming as modified summary order
For Walker: James Rebholz
Issue/Holding: In order to obtain review, a defendant must file a postconviction motion to modify sentence, even if the event was a re-sentencing which came to the same result as originally imposed.
¶37      In the hope of clarifying appellate procedure, we conclude that when a defendant seeks modification of the sentence imposed at resentencing, Wis. Stat. (Rule) § 809.30(2) and Wis. Stat. § 973.19 require the defendant to file a postconviction motion with the circuit court before taking an appeal. These rules on sentence modification apply even though the sentence imposed at resentencing is identical to a previous sentence. [12] The rules apply regardless of whether a defendant challenges the original sentence, a sentence after revocation, or the sentence imposed at resentencing.

¶38      Because, however, Wis. Stat. (Rule) § 809.30(2) and Wis. Stat. § 973.19 are silent in how they relate to a motion to modify a sentence imposed at resentencing, we conclude that there is good cause to grant Walker an extension of time to file a notice of intent to pursue postconviction relief.


 [12]  Wisconsin Stat. (Rule) § 809.30(2)(h) recognizes two situations in which a defendant need not go back to the circuit court: when the grounds for seeking relief are "sufficiency of the evidence or issues previously raised." These exceptions would not normally apply to modification of a sentence.
The appellate court may excuse failure to file a motion where a “compelling circumstance” exists and though the court finds none here it is “not unsympathetic to the confusion that this unusual set of facts must have created for counsel,” ¶35, hence the deadline extension for filing a postconviction motion on remand.
Modification -- Procedure -- Notice to State
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: The trial court erred in granting a motion to modify sentence without either seeking the state's response or holding a hearing. Procedure on motion to modify sentence is similar to that for a post-conviction motion under § 974.06(3) -- if the motion is obviously non-meritorious, the trial court should deny it outright; otherwise, the court should ensure service of the motion on, and response by, the DA and grant a prompt hearing. ¶¶18-19
Modification -- Procedure -- Timeliness
State v. Robert L. Noll, 2002 WI App 273
Issue: Whether a new-factor based motion to modify sentence may be rejected as untimely under § 973.19.
Holding: The motion invoked the trial court's inherent authority to modify, and therefore § 973.19 and its 90-day deadline was inapplicable. ¶5. The two procedures are distinct. Under § 973.19 a defendant may within 90 days of sentence "assert[] an erroneous exercise of discretion based on excessiveness, undue harshness, or unconscionability," ¶10, while a court's inherent authority to modify based on a new factor isn't constrained by any time limit, ¶¶11-12. The court's prior intimation in State v. Scaccio, 2000 WI App 265, ¶13, 240 Wis. 2d 95, 622 N.W.2d 449 that § 973.19 requires a new factor is expressly withdrawn. ¶¶14-16.
(The court declines to rule that the result should be sustained due to lack of merit, saying that this is something that must be addressed in the first instance by the trial court. ¶¶6-7.)

Review -- Resentencing

Resentencing – (Judicial Vindictiveness) Generally
State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding:
¶8        Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). “[W]henever a judge imposes a more severe sentence upon a defendant after a new trial,” the reasons for doing so must be free from a retaliatory motive. See Pearce, 395 U.S. at 726. Because retaliatory motives can be complex and difficult to prove, the Supreme Court has found it necessary to “presume” an improper vindictive motive. See United States v. Goodwin, 457 U.S. 368, 373 (1982). This presumption also applies when a defendant is resentenced following a successful attack on an invalid sentence. See State v. Carter, 208 Wis. 2d 142, 154-55, 560 N.W.2d 256 (1997). 

¶9        The underlying concern of all vindictiveness case law is that a defendant could be punished by a resentencing court for exercising postconviction rights to challenge a conviction or a sentence. See State v. Martin, 121 Wis. 2d 670, 687-88, 360 N.W.2d 43 (1985); Grobarchik v. State, 102 Wis. 2d 461, 474, 307 N.W.2d 170 (1981). Vindictiveness is not presumed in all cases where a defendant’s sentence is increased at resentencing. The presumption stands only where “a reasonable likelihood of vindictiveness exists.” See Goodwin, 457 U.S. at 373.

Re-Sentencing - Generally
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶6 “When a resentencing is required for any reason, the initial sentence is a nullity; it ceases to exist.” Carter, 208 Wis. 2d at 154. In resentencing “the court imposes a new sentence after the initial sentence has been held invalid.” Id. at 147. At resentencing not only may a court consider a defendant’s conduct after the imposition of the invalid sentence, id. at 146, but the court is not required to defer to the original sentencing objectives, State v. Naydihor, 2004 WI 43, ¶¶78-79, 270 Wis. 2d 585, 678 N.W.2d 220. In effect, the resentencing court is starting over. See Carter, 208 Wis. 2d at 157 (“The circuit court’s role in determining an appropriate sentence is the same whether the proceeding is an initial sentencing or a resentencing.”). Resentencing is limited only by the constitutional requirement that if a longer sentence is imposed at the second sentencing, a record must be made of the specific reasons for increased punishment in order to protect a successful defendant from vindictiveness by the court. North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). Our supreme court has read the Pearce rule as “extending to information about events and circumstances either that the circuit court was unaware of at the initial sentencing or that occurred after the original sentencing.” Carter, 208 Wis. 2d at 149 (citations omitted).
Resentencing – No Presumption of Vindictiveness
State v. Charles Lamar, 2009 WI App 133, PFR filed 9/10/09
For Lamar: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding: No presumption of vindictiveness applied to resentencing by a different judge upon guilty pleas re-entered after the original trial court granted Lamar’s postconviction motion to withdraw the initial guilty pleas.
¶17      In Naydihor, our supreme court found that the Pearce presumption did not apply. Id., ¶35. Nor does it apply here. As noted, case law has evolved since Pearce was handed down. Double jeopardy does not apply where a correction to an original invalid sentence results in a sentence increase, State v. Martin, 121 Wis. 2d 670, 677-78, 360 N.W.2d 43 (1985) (citing Bozza v. United States, 330 U.S. 160 (1947)), or where an increased sentence occurs after a retrial, id. at 678 (citing Pearce, 395 U.S. 711). We see no distinction which requires a different result between a new sentencing that takes place after a sentence is vacated and a new guilty plea entered and a sentencing that takes place after a retrial. Consequently, Lamar’s sentence given after his second guilty plea did not violate the prohibition against double jeopardy.
Keep in mind that the Naydihor resentencing was, as here, accomplished by a different judge. Broadly speaking for that matter, where the trial court itself grants relief, a presumption of vindictiveness probably isn’t going to apply to resentencing, State v. Lord L. Sturdivant, 2009 WI App 5, ¶15. Contrast grant of relief by appellate court: e.g., State v. William J. Church, 2003 WI 74, ¶¶53-57. In other words, Lamar’s argument was probably doomed at the outset.

The court also notes that “the sentence meted out by the second judge was not more severe than that of the original judge,” ¶18. That observation is a bit jarring, because you’d think it the basis of a narrower decision (one that avoids the question of presumptive vindictiveness, that is, in favor of the idea that Lamar ended up no worse anyway). But the court has a broader message to impart:

¶18      Finally, we are not persuaded that Lamar’s circumstances fall within the double jeopardy penumbra for another reason. Here, the sentence meted out by the second judge was not more severe than that of the original judge. Originally, Lamar was sentenced to twelve years of initial confinement, to be followed by five years of extended supervision. Lamar’s second sentence, occurring one year and approximately three-and-one-half months later, consisted of ten years of incarceration, to be followed by five years of extended supervision. The original combined sentence was seventeen years. The second combined sentence is fifteen years. Although the second sentence was to be served consecutively to the original bail jumping charge, this second sentence was not greater than that given at the first sentencing—a seventeen-year sentence. Further, at his initial sentencing, Lamar got sentence credit on the misdemeanor bail jumping as a habitual criminal charge of 177 days.

¶20      Although we do not believe Lamar is “worse off” for having one of his convictions overturned, he is not entitled to additional sentence credit. Finally, it is well to remember that Lamar brought this upon himself by seeking to withdraw his plea after receiving a combined sentence of seventeen years because the trial court told him he faced a nineteen-year sentence, when in fact the maximum possible sentence was twenty-one years. For the reasons stated, the judgment and order are affirmed.

What the court doesn’t say is just how Lamar found himself in this predicament. He was charged with 3 counts and pleaded to 2 with the 3rd dismissed pursuant to plea bargain. CCAP reflects that, when he withdrew one of these counts, “The court further ordered Count 3 REINSTATED in its entirety as the dismissal was pursuant to a plea negotiation. The court further advised all parties that it will take no action as to Count 2 at this time but will take under advisement whether the plea and sentencing in Count 2 should also be vacated.” Not clear why no further action was taken on 2, maybe that was Lamar’s own choice, very possibly vacating 2 would have been counter to his interests, but for whatever reason 2 remained intact. The point is that the potential remedy for “partial” plea withdrawal lies at the heart of the case—and as to which, extraction of overarching principles has become difficult, with recent cases collected here (scroll down to State v. Mark J. Roou, 2007 WI App 193).  

Final word: file Lamar under, “Risk-assessment Counseling.” Indeed, the court pointedly quotes its prior warning in State v. Daniel C. Tuescher, 226 Wis.2d 465, 595 N.W.2d 443 (Ct. App. 1999) that, with respect to sentence credit, “a defendant could actually be worse off for having one of several convictions reversed.” For that matter, if you don’t inform your client that a motion to vacate any conviction runs the risk of a greater sentence (assuming, of course, an initial sentence under the maximum), then you’re probably asking for trouble.

Re-Sentencing - Modification of Seentence, Distinguished
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser
Issue/Holding:
¶7 Counsel for Wood points out that published opinions have been somewhat imprecise in distinguishing between the requirements for, and effect of, sentence modification as opposed to resentencing. We acknowledge that language has, on occasion, been imprecise. …

¶9 Similarly, in State v. Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, we reversed and remanded “for resentencing” when we concluded that the trial court relied upon inaccurate information (a probation officer’s representation that Norton’s probation would not be revoked) coupled with later circumstances that extended Norton’s sentence for nine months (when his probation was revoked). Id., ¶1. We held that the misrepresentation constituted “a new factor.” Id., ¶¶1-4. We held that “the circumstances do constitute a new factor and resentencing is required because the inaccurate information relied on by the trial court frustrates the purpose of the sentence.” Id., ¶13 (emphasis added). A new factor analysis and frustration of a purpose of the sentence are concepts related to modification of the sentence to correct specific problems, not to resentencing when it is necessary to completely re-do the invalid sentence. We inadvertently muddled the linguistic and legal waters with our mixing of distinctly different concepts.

¶10 We again mixed resentencing and sentence modification concepts in State v. Delaney, 2006 WI App 37, 289 Wis. 2d 714, 712 N.W.2d 368 …. Our use of the word “resentencing” in the context of a new factor analysis relevant to sentence modification may have contributed to additional confusion.

¶17 Once the trial court found that grounds for sentence modification did not exist, particularly with an unrepresented defendant, [8] the trial court should not have converted a motion for sentence modification to a motion for resentencing in the absence of a clear, unequivocal and knowing stipulation by the defendant. Accordingly, we reverse and remand with instructions to vacate the sentence now in effect, to deny the motion to modify the sentence and to reinstate the sentence originally imposed with credit for all time served from the date the original sentence was vacated.

Wood moved for new-factor based sentencing relief; the trial court denied relief on that basis, but went ahead and converted the request to one for re-sentencing, which it granted over Wood’s objections. The court of appeals says that refusal to find a new factor should have ended the matter. [Wood, by the way, got the same sentence re-imposed on re-sentencing, so “vacat(ing) the sentence now in effect” can’t have any real impact on him.] What are the implications? Re-sentencing wipes the slate clean, and affords more latitude for either a greater or lesser sentence. Greater potential risk, greater potential reward. But there is larger problem, one lying at the very core of new-factor analysis and exemplified if not articulated by this very case. When you get right down to it, the new-factor test is so stringent, and the courts’ administration of it so fussy, that satisfying the test is a virtual impossibility. Our reports are now littered with decisions telling us what does not amount to a new factor (as, indeed, is also true in this case). But just what does satisfy the test? As it turns out, the very sort of thing that would amount to inaccurate sentencing data and would therefore support re-sentencing based on inaccurate information – see discussion here. In brief, virtually every “new factor” will amount to inaccurate information; on the other hand, you can satisfy the inaccurate-information test for re-sentencing even though you fall short of the new-factor test. It’s not so much, then, that various decisions have used “imprecise” language but, rather, that there is very little if any functional difference between new-factor and inaccurate-information based sentencing relief—satisfy the former and you almost certainly satisfy the latter. This case takes us right up to the water’s edge but doesn’t plunge in. Note the court’s curious aside: “the trial court should not have converted a motion for sentence modification to a motion for resentencing in the absence of a clear, unequivocal and knowing stipulation by the defendant.” What difference would it make whether or not the defendant assented? Since when does a defendant rather than the court get to determine whether a sentence can be disturbed? Wood either had a basis for re-sentencing or he didn’t; and if he didn’t then his whole-hearted embrace of something he wasn’t entitled to would be utterly meaningless. Most likely, the trial court simply had an intuitive, and entirely correct, sense that his new-factor motion also went to inaccurate information. But that theory goes to a much different and riskier form of relief, one that Wood was not willing to undertake—which is undoubtedly why the court of appeals required his willing assent. Note that the court of appeals does not distinctly hold that Wood fell short of an inaccurate-information argument. Instead, the court simply holds that, given Wood’s unwillingness to go down that path, the trial court should have stopped immediately upon declining to find a new factor, ¶14. The point, again, is that failure to satisfy the impossibly daunting new-factor test doesn’t preclude inaccurate-information relief. The latter analysis wasn’t undertaken in this case because the defendant expressly disavowed it. At some point, perhaps, the doctrinal tensions will require either a loosening of the new-factor test or its abolition. As things now stand it is more or less a fiction.
Resentencing -- after grant of partial relief
State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate
Issue: Whether resentencing is required on all remaining, valid counts after one multiplicitous count is vacated.
Holding:  
¶25. We have never held, however, that remand for resentencing is always required, even where the vacated count in a multi-count case has no affect whatsoever on the overall sentence structure, as is the case here. ...

¶26. A double jeopardy bar to one conviction and sentence in a multi-count case does not operate to invalidate the sentences on all the remaining counts, nor does it necessarily invalidate the sentence on the specific surviving parallel count which gave rise to the double jeopardy challenge. The court of appeals was entirely correct that "there is nothing invalid or illegal" about the sentences on the counts that remain after a successful double jeopardy challenge. Martin and the Ronzani-Gordon line of cases hold that resentencing is procedurally and constitutionally permissible if the invalidation of one sentence on double jeopardy grounds disturbs the overall sentence structure or frustrates the intent of the original dispositional scheme. Martin, 121 Wis. 2d at 682. Resentencing is unnecessary, and certainly not required, where, as here, the invalidation of one count on double jeopardy grounds has no affect at all on the overall sentence structure.

¶27. As we have noted, however, Church himself requested resentencing as a remedy for the multiplicity of the child enticement counts. He argued at resentencing for reimposition of the same overall sentence. Instead, he received four more years in prison. But for his successful appeal, Church would be serving a 13-year sentence. Because of his successful appeal, he is now serving a 17-year sentence.

A cautionary tale for appellate practitioners. Church, as the foregoing quote suggests, originally had a 13-year prison term and several concurrent terms of probation. He successfully asked that one of the probationary-term counts be vacated as multiplicitous; he also asked for resentencing – careful what you wish for – and got that too, along with an increased prison term of 17 years. The court now says that in such situations (i.e., “no affect at all on the overall sentence structure”) resentencing isn’t required. The holding, then, may be quite narrow: if there's no effect to the relief, then the court shouldn't resentence. But this leaves open the problem of whether the trial court does have the authority to resentence when partial relief is meaningful. Keep in mind the federal practice, U.S. v. Rivera, 7th Cir. 02-3165, 5/1/03:

But as we have explained before, where a defendant is sentenced on multiple counts, he has “no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal.” United States v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987); see also United States v. Smith, 103 F.3d 531, 535 (7th Cir. 1996) (no expectation of finality “until action is taken with regard to the whole sentence”). It is therefore well-settled that the Double Jeopardy Clause does not bar the district court on remand from unbundling the package and resentencing on the remaining counts.

See also United States v. Binford, 108 F.3d 723 (7th Cir. 1997) (“sentencing package” becomes “unbundled” by partial relief, and may be “re-bundled” via resentencing). Note, too, that partial relief against plea-bargained counts also presents a distinct circumstance which may not be affected by Church. E.g., State v. Richard A. Lange, 2003 WI App 2, ¶¶32-37 (partial relief against a plea bargain-based guilty plea "constitutes a repudiation of the entire plea agreement," including unchallenged convictions). But compare, State v. Theodore J. Krawczyk, 2003 WI App 6 (remedy fashioned by trial court of simply vacating multiplicitous count with concurrent sentence, and leaving other count untouched, proper remedy.) What about challenges outside this particular context (multiplicity), such as procedural challenges of one sort or another to a sentence on one count but not others? See, e.g., State v. Groth, 2002 WI App 299, ¶39 n. 1 (successful challenge to one sentence as based on inaccurate information requires resentencing on all counts, though they were unchallenged). The logic of Church would seem to apply to such situations.)
Go To Brief
Resentencing -- Correction of "Good Faith Mistake" by Sentencing Court
State v. Bart C. Gruetzmacher, 2004 WI 55, on certification
For Gruetzamacher: Jennelle London Joset
Issue/Holding:
¶14. We now decide whether circuit courts should be allowed to correct obvious errors in sentencing where it is clear that a good faith mistake was made in an initial sentencing pronouncement, where the court promptly recognizes the error, and where the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another, seeks to impose a lawfully structured sentence that achieves the overall disposition that the court originally intended.

...

¶35. Given the United States Supreme Court's decision in DiFrancesco, and subsequent Wisconsin cases that relied on its holding, we conclude that the language in North stating that the due process clause acts as a bar to increasing sentences must be withdrawn. The Jones decision clearly recognizes that such a per se rule no longer exists in Wisconsin. Id., ¶9. Thus, we conclude that the per se rule language in North, which states that "(m)odification to correct sentencing flaws runs afoul of the double jeopardy provisions when the amending court seeks to increase sentences already being served," must be and it is withdrawn. North, 91 Wis. 2d at 509-10 (citing Benz, 282 U.S. at 308). Nevertheless, we leave the remainder of the North decision intact, to be read in light of the factors set forth in Jones. 36. In the case at hand, we conclude that the circuit court clearly intended to sentence Gruetzmacher to 40 months initial confinement….

¶38. Moreover, the circuit court discovered the sentencing error the same day, and the parties would have reconvened that day if the circuit judge did not have assignments outside of the county. Instead, the court notified the parties and everyone was back in court two days later to address the matter. We also find it noteworthy that the circuit court purposely kept Gruetzmacher in jail, and did not send him to prison, pending the resentencing reset for March….

¶39. Nevertheless, we conclude that Gruetzmacher did, in fact, have a legitimate expectation of finality in the sentence imposed during resentencing in March, 2002. After the March resentencing, Gruetzmacher was sent to prison, and the justice system as a whole was acting on the sentence handed down by the court. However, when the circuit court again resentenced Gruetzmacher six months later in September, 2002, it made an error of law and, therefore, erroneously exercised its discretion. State v. Meeks, 2003 WI 104, 19, 263 Wis. 2d 794, 666 N.W.2d 859; State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968). At the September resentencing, the court incorrectly accepted Gruetzmacher's argument that the March sentence had been imposed in violation of his double jeopardy rights. This was an incorrect conclusion, as the sentence imposed in March was valid for the reasons noted earlier. Thus, the court made a mistake of law when it applied the wrong legal test. Because the circuit court erroneously exercised its discretion when it imposed the September sentence, we reverse and vacate that judgment and order of the circuit court, and we reinstate the sentences imposed at the March resentencing.

The factual background may not be clear from the recitation above, but the overarching principle is more important anyway, namely: double jeopardy doesn’t bar an increase in sentence when the sentencing court “promptly recognizes” that a “clear … good faith mistake was made in the initial sentencing pronouncement,” such that a re-jiggering of the disposition “achieves the overall disposition that the court originally intended.” That standard is loose enough to give pause, but might not be so bad if you focus on the key elements (“prompt” corrective action; “clear” good-faith mistake). That means looking at the facts, which are these: Gruetzmacher was sentenced on several consolidated cases; the judge clearly wanted to give him 40 months confinement and attempted to do so, but chose the wrong count in that the maximum for that one was 24 months. The judge caught the error later the same day, tried to rectify it right away but scheduling difficulties caused a delay of a couple weeks. He then reconfigured the sentence, so that the excessive count was reduced to the correct maximum, and a term of probation in another case was converted to the 40 months confinement he wanted to impose. Later, Gruetzmacher moved to reinstate the original sentence, arguing that the subsequent modification violated State v. North, 91 Wis. 2d 507, 511, 283 N.W.2d 457 (Ct. App. 1979). The trial court agreed, and this State’s appeal followed. As you can tell from the quoted excerpt, the supreme court now says that North is no longer binding, at least to the extent that it imposes a bright-line bar on any increase where a sentence is already being served. The court “emphasize(s) that the remainder of North remains intact, and is to be read with the factors set forth in State v. Jones, 2002 WI App 208, 257 Wis. 2d 163, 650 N.W.2d 844,” ¶3. Nonetheless, North is essentially gutted, given that it stood for little beyond its bright-line rule. But despite that, and despite the result in Gruetzmacher, increases should be exceptionally rare. It’s not quite clear just what the court means to preserve out of the ruins of North. Reference to viability of the “remainder” of that case isn’t especially helpful: North did indicate that, because a sentence can’t be decreased upon mere reflection, it can’t be increased “without some substantive reason” – if that is all that is left of that case, than the language is worrisomely broad. But Gruetzmacher also took pains to link North to Jones, and that last case says that a sentence based in some substantial way on the defendant’s misrepresentation can later be increased when the fraud is discovered. This holding is quite unremarkable, because has always been understood to be an exception to double jeopardy. E.g., McFarland v. State, 68 Wis. 400, 32 N.W. 226 (1887). If the compass in North points to fraud as a “substantive reason” for sentencing increase, then the double jeopardy landscape will be pretty easy to track. And note, too, the cases that Gruetzmacher cites with seeming approval: State v. Willett, 2000 WI App 212, ¶4, 238 Wis. 2d 621, 618 N.W.2d 881 [sentencing court merely expressed desire for consecutive sentences but through mistaken view of law and not slip of tongue made them concurrent, therefore no cause existed for court to modify sentences months later to consecutive terms]; and State v. Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42 [court misspoke in imposing concurrent rather than the consecutive terms it clearly intended; proper for court to correct that misstatement later that same day]. Thus, increases have been authorized only in narrow and therefore exceptional circumstances: defendant’s fraud and obvious judicial slips of the tongue. Gruetzmacher fits the latter pattern more or less, in that the judge clearly wanted to give 40 months and just happened to pick the wrong count. It was not, to be sure, a slip-up in the same sense as Burt, but an obvious mistake nonetheless – an extension, but not an extreme one, of the latter holding. For now, then, the line seems to be drawn at the inadvertent failure to impose a very clearly intended disposition. Of greater concern, perhaps, is the idea that commencing service of the sentence doesn’t necessarily provide finality and therefore protection against an unwanted modification. Gruetzmacher hints very strongly that this is so, ¶¶28-30, but is much too glib. The judge caught his mistake the very day of sentencing; and the court seemingly didn’t need to discuss this factor at all. Finality of sentence turns on the defendant’s legitimate expectation of finality and that necessarily turns on what state law allows (not different, really, from the idea that multiplicity turns on the allowable unit of prosecution intended by the legislature). It’s one thing to say that the legislature can, consistent with double jeopardy, authorize post-sentencing increase [thereby eliminating any expectation of finality upon commencing the sentence], and quite another to say that the courts can simply wade into that thicket. The legislature has declared that “all sentences commence at noon on the day of sentence,” § 973.15(1). That’s it. There’s no provision for post-sentencing increases. At what point after beginning to serve the sentence does a defendant acquire a legitimate expectation in its finality? A week? A month? A year? Never? Willett disallowed an increase months after the event, but this wasn’t so much because of the passage of time but because the judge didn’t clearly intend to impose a different sentence. Just keep in mind that corrective action was begun almost immediately in Gruetzmacher. Appellate attorneys making risk-assessments in similar situations should keep in mind, too, that although § 973.13 provides that a sentence exceeding the maximum is void “and shall stand commuted without further proceedings,” requesting such relief opens a potential can of worms, State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841(Ct. App. 1996) [“We therefore hold that when a sentence is commuted pursuant to § 973.13, STATS., the sentencing court may, in its discretion, resentence the defendant if the premise and goals of the prior sentence have been frustrated.”] Nothing in Gruetzmacher is likely to change that.
Resentencing -- Defendant's Right to Presence
State v. Rodney K. Stenseth, 2003 WI App 198, PFR filed 9/2/03
For Stenseth: Robert A. Ferg
Issue: Whether violation of the defendant's right to be present at resentencing (occasioned by the original sentence exceeding the maximum allowable period of confinement) is subject to harmless error analysis.
Holding:
¶16. Wisconsin Stat. § 971.04(1)(g) provides that a defendant shall be present "[a]t the pronouncement of judgment and the imposition of sentence." The State concedes that the modification amounted to a resentencing and that Stenseth had the right to be present. However, the State argues this was harmless error, and we agree.

¶17. Violation of the right to be present under Wis. Stat. § 971.04(1) is subject to a harmless error analysis. State v. Peterson, 220 Wis. 2d 474, 489, 584 N.W.2d 144 (Ct. App. 1998). An error is harmless if it does not affect the defendant's substantial rights. State v. Harris, 229 Wis. 2d 832, 840, 601 N.W.2d 682 (Ct. App. 1999).

¶18. In Peterson, the court found the defendant's absence during supplemental jury instructions was harmless because the defendant had failed to establish any prejudice resulting from the violation of his right to be present and also had failed to "advance on appeal any specific contribution he would have made had he been present." Peterson, 220 Wis. 2d at 489.

¶19. Here, Stenseth already had a full sentencing hearing. He had the opportunity to present witnesses and did, in fact, present two witnesses. He exercised his right of allocution. His attorney made an argument on Stenseth's behalf. At the end of the presentations, the court made detailed findings and extensive observations, explaining the reasons for its sentence. Stenseth does not indicate any additional witnesses he would have called at a resentencing hearing, any new information he would have provided the court or any further arguments he would have presented.

¶20. Further, we note that when the court recognized the original sentence had been illegal, the court stated that did not change the fact that it had "intended that [Stenseth] should be supervised for the full ten years." Further, the court added, "I wanted the public protected in one way or another for a total of ten years." Stenseth does not indicate anything he would have done to effect a different outcome. In short, Stenseth does not suggest any contribution he would have made at the resentencing or any way in which he was prejudiced. The error was harmless.

(The court's analysis leaves a bit to be desired. Start with the procedural posture, from which all else flows. The original sentence exceeded the maximum, at least as to confinement, which made the sentence “illegal.” A sentence in excess of the maximum is automatically commuted to the maximum, § 973.13 (excess portion of the sentence is void and the sentence is commuted without further proceedings), which is a merely clerical exercise. E.g., State v. Theriault, 187 Wis. 2d 125, 133, 522 N.W.2d 254 (Ct. App. 1994). Apparently, that remedy wouldn’t have satisfied the judge, who wanted to increase the length of supervision to offset the decrease in confinement. It so happens “that when a sentence is commuted pursuant to § 973.13, STATS., the sentencing court may, in its discretion, resentence the defendant if the premise and goals of the prior sentence have been frustrated.” State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841 (Ct. App. 1996). Typically, too, an illegal sentence leads to resentencing. And so it seems clear beyond any doubt that this particular event became a resentencing. But not a typical one, in that “resentencing” implies minimal formality; rather, this was one which was handled during a telephone conference between judge and attorneys to discuss the postconviction motions, ¶7. Consider, though, Holloway's insistence that the remedy of resentencing after a § 973.13 error “is not a one-way street which will always operate to the disadvantage of the defendant. In a different case, it may produce a lighter sentence than the maximum for the underlying offense.” See also State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997) (resentencing courts directed to consider all information, including that occurring after original sentencing and that which court was unaware of at time of original sentencing). In other words, resentencing (putting aside double jeopardy-type inhibitions) is supposed to allow the court to truly revisit the sentence -- which would in turn seem to implicate the panoply of sentencing rights, including presence of the defendant. Unless the right to presence at sentencing is more plastic than previously thought. You can see, then, the potential this case has to create mischief, in that it essentially reduces resentencing to a mechanical exercise whereby the judge simply restates his or her original intent. Just how did the court reason its way to this highly questionable result?

The right to presence at sentencing is inalienable, i.e., not waivable “even if the waiver is made knowingly and voluntarily.” State v. Koopmans, 210 Wis. 2d 671, ¶1, 563 N.W.2d 528 (1997). Once Stenseth's postconviction proceeding became a resentencing, it became for all practical purposes a sentencing, as the court indeed acknowledges. See also, e.g., State v. Manke, 230 Wis.2d 421, 602 N.W.2d 139 (Ct. App. 1999) (after original sentence vacated and with defendant then facing resentencing, motion to withdraw guilty plea is governed by more lenient pre-sentencing test). You might think that Koopmans would preclude harmless error analysis. But Peterson contains throw-away language about Koopmans that wasn't discussed by the Stenseth court but apparently relied on by it: “No argument was made, however, that the trial court's error in treating the defendant's voluntary absence as a waiver was harmless, and the court explicitly did not consider the issue.” 220 Wis. 2d at 487. Peterson did not, however, itself rely on harmless error, and its gratuitous remark about Koopmans is therefore dicta. In any event, discussion of harmless error no doubt seemed entirely unnecessary to the Koopmans court. There is a well-developed body of case law, exemplified by Peterson, that a defendant need not be present during a purely legal phase of the proceeding. But sentencing is an entirely distinct stage. The analogy to presence at trial simply doesn't fit. A sentencing court exercises discretion by weighing necessarily fact-bound considerations. Nor does it matter that the trial court imposed a previous sentence and merely sought at resentencing to implement its original intent -- the proceeding, as noted, is tantamount to sentencing; the trial court’s intent to implement its original intent might be quite relevant to a subsequent challenge to its exercise of discretion, but that is something quite distinct from the procedure by which that discretion was exercised. Contrast, State v. Prihoda, 2000 WI 123 (correction of merely clerical sentencing error doesn't require defendant's presence). Then there is the matter of allocution, afforded both by § 972.14 and due process. Bottom line: doing away with the defendant’s right to presence at resentencing is but a short distance from doing away with that right at sentencing. But we’re still not quite done. Even if you assume applicability of the harmless error doctrine, the court applied it exactly backward, by requiring Stenseth to show how his presence would have made a difference. ¶19. It is axiomatic that the state, as beneficiary of the error has the burden of showing beyond reasonable doubt that the error did not contribute to the result. How that burden might be satisfied in this context is anyone’s guess – which only shows why this ought to be regarded as “structural” error not supporting harmless error analysis anyway – but the fact remains that the court assigned the burden to the wrong party.)

Resentencing -- Increase in Original Sentence After Appellate Relief
State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate
Issue: Whether an increase in sentence on re-sentencing violated due process, where the resentencing judge deviated from the original sentencing scheme by increasing the term of imprisonment.
Holding: Due process precludes an increase in sentence which is meant to punish a successful appeal; a more severe sentence imposed after re-trial is presumptively vindictive and must be overcome by objective information in the record. ¶¶29-34, citing North Carolina v. Pearce, 395 U.S. 711, 725 (1969). This presumption does not apply whenever a harsher result follows relief, but only where there is a realistic likelihood of vindictiveness. ¶38. Pearce is not applicable to a resentencing based on an originally invalid sentence “as long as the circuit court does not deviate from the original sentencing record and dispositional scheme.” ¶48.  Here, the judge increased the sentence by four years because Church had spent four years in prison “without acknowledging his offense and without doing anything to obtain treatment,” ¶15, and by this manifest intent to deviate from the original sentencing scheme triggered Pearce’s protection:
¶53…. The circuit court evidently treated this resentencing as an opportunity to revisit the original sentence based upon updated information and argument. Under these circumstances, we conclude that the Pearce presumption is triggered. Although Church was not resentenced after retrial, as in Pearce, the circumstances of this case created the same sort of likelihood of vindictiveness as to require application of the presumption.

¶54. In this case, as in Pearce, the defendant received a longer sentence upon resentencing after successful post-conviction proceedings. The appeal in this case posed a direct challenge to a decision of the circuit court. The circuit court's decision on multiplicity was reversed, the entire case was remanded, and the circuit court was essentially "'do[ing] over what it thought it had already done correctly.'" Smith, 490 U.S. at 801 (quoting Colten, 407 U.S. at 117); Goodwin, 457 U.S. at 374, 383 nn. 5, 16 (quoting Colten). Inherent in these circumstances is the "reasonable likelihood of vindictiveness" that the Pearce presumption is intended to protect against. Goodwin, 457 U.S. at 373.

¶55. The Pearce presumption of vindictiveness can be overcome if "affirmative reasons" justifying the longer sentence appear in the record and if those reasons are "based upon objective information" regarding events or "identifiable conduct on the part of the defendant" subsequent to the original sentencing proceeding. Pearce, 395 U.S. at 726.

¶56. The longer sentence in this case was premised on the passage of time: four years of incarceration had gone by, and Church was still (mostly) in denial and had not sought or received treatment. This does not constitute "objective information" of "identifiable conduct on the part of the defendant" subsequent to the original sentencing. It constitutes a subjective evaluation of the status of Church's rehabilitation at the time of resentencing, based not on any new facts but on the mere continued existence of the original facts.

¶57. Church was in denial and untreated at the time of the original sentencing. That he remained so four years later is not a new factor justifying a longer sentence after a successful appeal; it is merely a continuation of the status quo ante. Defendants who exercise their right to appeal often maintain their innocence. To premise an increased sentence after a successful appeal on a defendant's continued denial of responsibility, without more, comes far too close to punishing the defendant for exercising his right to appeal.

Resentencing – Increase in Original Sentence Upon Resentencing Ordered by Trial Court (to Correct Illegal Sentence)
State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding: The initial sentence was “illegal” (because the court did not order sufficient time on extended supervision). The court granted defendant’s motion for resentencing (because of the illegality) and ordered an increase in supervision time (rather than reduction in confinement time, which would have accomplished the same purpose). The court of appeals upholds this increase, ruling that “there was no realistic motive for vindictive sentencing” (hence, no presumption of vindictiveness), largely because resentencing was prompted by the improper sentence: “The court, upon being made aware of the invalid sentence, recalculated and imposed a sentence that complied with the percentages required by Wis. Stat. § 973.01(2)(d),” ¶13. Moreover, even if a presumption of vindictiveness does apply, it is overcome by “objective information,” ¶14 (which, truth to tell, the court doesn’t spell out, except to say in effect that the trial “court took into consideration all of the factors from the first sentencing hearing,” a bit of a non-sequitur in this context. Possibly, the court of appeals meant that the amount of confinement time should not be reduced, and that therefore the amount of supervision time had to be increased to bring it into line with the statutory minimum). In addition, the fact that procedural relief (grant of resentencing by the trial court rather than an appellate court) eliminates the possibility of “self-vindication,” ¶15, citing Texas v. McCullough, 475 U.S. 134 (1986).
Nonetheless, due to apparent computational error by the trial court the court of appeals orders (slight) reduction in supervision time. When it resentenced Sturtivant, the trial court initially imposed 8 years of supervision time. However, at a second resentencing hearing, the court noted “that my intention was to give the minimum amount of time on extended supervision,” ¶6, and it reduced the length to 6 ½ years. Noting that the latter figure also exceeds the minimum, hence is contrary to the trial court’s express intent, the court of appeals orders further, if very slight, reduction:
¶17     As a final matter, we note that in order to comply with TIS-I, Sturdivant’s minimum term of extended supervision would be six and one-quarter years. Several times, on the record, the court indicated that it was setting the term of extended supervision at twenty-five percent of the confinement term in order to comply with the law. Sturdivant’s current sentence does not incorporate the minimum term of extended supervision required for twenty-five years of initial confinement. Where the record is clear as to the circuit court’s intent and the only sentence modification required rests on a mathematical calculation, an appellate court may modify a sentence rather than remanding the matter to the circuit court. See State v. Walker, 117 Wis. 2d 579, 584, 345 N.W.2d 413 (1984) (when it is clear what the trial court intended to do, appellate courts have modified a sentence to carry out that intent while bringing the sentence into accordance with the applicable law). We therefore modify the term of extended supervision on Count 1, the first-degree sexual assault, to six and one-quarter years. All other terms of the sentence remain unchanged.
Resentencing -- Increase in Original Sentence After Grant of Relief
State v. Victor Naydihor, 2004 WI 43, affirming 2002 WI App 272, 258 Wis. 2d 746, 654 N.W.2d 479
For Naydihor: Philip J. Brehm
Issue1: Whether an increase in sentence (from 3 to 5 years’ initial confinement), after resentencing before a different judge due to a plea bargain violation, was presumptively vindictive and therefore violated due process.
Holding1: Under the circumstances, the North Carolina v. Pearce, 395 U.S. 711 (1969) presumption of vindictiveness following an increased sentence doesn’t apply:
¶37. The Court has also explained that a reasonable likelihood of vindictiveness exists only if there is a realistic possibility that the sentencing court, after being reversed, may engage in self-vindication and retaliate against the defendant for having successfully pursued appellate relief. …

¶47. Applying these principles in Church, 262 Wis. 2d 678, 54, we held that the Pearce presumption applied when the defendant received a longer sentence from the same court after successfully challenging the validity of multiple convictions. We reasoned: "The appeal in this case posed a direct challenge to a decision of the circuit court. The circuit court's decision on multiplicity was reversed, the entire case was remanded, and the circuit court was essentially '"do[ing] over what it thought it had already done correctly."'" Id. (quoting Smith, 490 U.S. at 801 (quoting Colten, 407 U.S. at 117)).

¶48. However, the facts of the present case stand in stark contrast to those in Church and Pearce. Here, Naydihor moved for resentencing due to prosecutorial error. The court before which he was sentenced granted his postconviction motion and ordered resentencing before a new judge. The State did not oppose the motion. Naydihor's conviction was not reversed because of an error by the court. In addition, it was the court itself that granted his motion. In other words, this is not a case where an appellate court reversed a conviction due to a circuit court error and the same circuit court that erred resentenced the defendant. The judge that resentenced Naydihor was not the same judge that originally sentenced him; nor was the resentencing court the court in which the error that led to resentencing took place. We conclude that under the facts of this case, consistent with Chaffin, Colten, McCullough, and Smith, no presumption of vindictiveness is warranted because the reasons justifying the prophylactic Pearce presumption are not present.

¶56. Consistent with the approach taken by the United States Supreme Court, we hold that the Pearce presumption of vindictiveness does not apply here because the defendant was resentenced by a different judicial authority at his request due to a non-judicial defect at the original sentence hearing, and the resentencing was granted by the original court in which the defect occurred. In such circumstances there is "no realistic motive for vindictive sentencing," McCullough, 475 U.S. at 139, such that it can be said there was a "reasonable likelihood of vindictiveness," Goodwin, 457 U.S. at 373, much less a "possibility of vindictiveness." Chaffin, 412 U.S. at 26. As there was no hazard that Naydihor was being penalized for seeking enforcement of the terms of his plea bargain, the Pearce presumption does not apply to this case.

(The fact that the second judge was aware of the first sentence isn’t meaningful. ¶¶48-52.)

Issue2: Whether the increased sentence was justified on the basis of “objective information,” namely, deterioration in the victim’s condition.
Holding2:

¶74. The Court has repeatedly stated that the Pearce presumption may be rebutted by "'"objective information . . . justifying the increased sentence."'" Smith, 490 U.S. at 799 (quoting McCullough, 475 U.S. at 142 (quoting Goodwin, 457 U.S. at 374)). This may be an actual intervening event set in motion by prior conduct on the part of the defendant, as in Wasman, 468 U.S. at 569-70, or new information concerning prior conduct of the defendant that relates to the nature and extent of the defendant's crime, as in McCullough, 475 U.S. at 143-44. While McCullough opened the door for increased sentences based on "new information" concerning the crime, it is clear under Church, 262 Wis. 2d 678, 56-57, that when the Pearce presumption applies, a resentencing court cannot use "old facts"--information that was available to the original sentencing authority--to justify an increase because presumably the first sentencer was aware of this information and took it into consideration in rendering the initial sentence.

¶76 … However, nothing in Church precludes a court from increasing a sentence based on new objective information of an event such as the victim's deteriorated condition, which occurs subsequent to the original sentencing.

¶77. We again reiterate that the United States Supreme Court in McCullough stated that Pearce "was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified." McCullough, 475 U.S. at 141. None of the Court's decisions subsequent to Pearce have construed the phrase "objective information . . . justifying a sentence increase" to refer only to new conduct on the part of the defendant. Indeed, the Court in McCullough stated that a sentence increase could be justified based on "pertinent new information" that "bore legitimately on the appropriate sentence to impose." McCullough, 475 U.S. at 144. To summarize Wasman, McCullough, and Church, without using artificial labels or engaging in semantics, a sentence may be legitimately increased as a result of "any objective, identifiable factual data not known to the trial judge at the time of the original sentencing proceeding," Pearce, 395 U.S. at 751 (White, J., concurring in part), so long as that data relates to legitimate sentencing factors and is set forth clearly in the record. See McCullough, 475 U.S. at 153-55 (Marshall, J., dissenting)(noting that the majority opinion permits a sentence increase to be based on new information about the crime charged and removes the restriction that led to Justice White's concurrence in Pearce). Whether the basis for the sentence increase here is characterized as an event under Wasman14 or new information about the nature and extent of the crime under McCullough, the fact that the condition of the victim deteriorated since the original sentence proceeding clearly constitutes a change in the status quo, something that was not present in Church. As discussed below, this change was clearly relevant to the sentencing factors Judge Schroeder was required to consider at resentencing.

¶80. We hold that when a victim testifies at resentencing that her condition has deteriorated since the original sentencing proceeding as a result of the defendant's underlying criminal act, this constitutes "'objective information . . . justifying the increased sentence.'" McCullough, 475 U.S. at 143. As Judge Schroeder specifically stated that this was the basis for increasing Naydihor's sentence, he provided "an on-the-record, wholly logical, nonvindictive reason for the sentence. We read Pearce to require no more, particularity since trial judges must be accorded broad discretion in sentencing." Id. at 140.

(A dilemma, certainly, for appellate counsel: in no small percentage of cases, at the time you’re providing a risk assessment the victim’s condition [or the consequences of the crime to victim’s family] will be unknown and unknowable. Revelation therefore will be the price of admission for the grant of relief.)
Resentencing -- Modification, Distinguished From
State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue/Holding:¶5, n. 2: “Technically, Stenzel is seeking a modification of a sentence imposed by an erroneous exercise of discretion; resentencing is only available if the initial sentence is vacated because it was illegally imposed. State v. Carter, 208 Wis. 2d 142, 146-47, 560 N.W.2d 256 (1997).”
Well, as long we’re being technical … Carter doesn’t quite say that:
¶3. This case does not involve sentence modification. Sentence modification involves an entirely different line of authority than resentencing. The purpose of sentence modification is to allow a court to correct a sentence when new factors frustrate the purpose of the sentencing court. State v. Franklin, 148 Wis. 2d 1, 14, 434 N.W.2d 609 (1989). To promote the policy of finality of judgments, strict rules govern the information that can be considered in a request for sentence modification. Id. at 9. There is no finality concern when the court imposes a new sentence after the initial sentence has been held invalid.
In context, then, it’s clear that by “sentence modification” Carter meant new-factor-based modification. (A point underscored, incidentally, by the holding of David Lozano, Jr. v. Frank, 7th Cir No. 03-2997, 9/13/05 that a new factor-based sentence modification doesn't trigger a new federal habeas deadline, in contradistinction to a direct-appeal event.) Whether there’s good reason also to apply the distinction between resentencing and “sentence modification” to erroneous exercises of discretion is something else. Or was something else, before this toss-away footnote. But does it make a difference? Maybe: on the downside, it might make a challenge somewhat harder to mount if you assume that getting a reviewing court to reduce a sentence is tougher than getting it to set aside the sentence and return it to the trial court. But on the plus side, you can plausibly claim that by not unsettling the sentence, a motion to modify doesn’t waive whatever double jeopardy protection is left against an increase in sentence (see generally State v. Victor Naydihor, 2004 WI 43).
Resentencing – Imposition of Incorrect Penalty Scheme
State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: The remedy for a sentence imposed under an incorrect penalty scheme is resentencing:
¶14      Both parties agree that if the sentence the circuit court imposed was improper, Thums is entitled to be resentenced as to both components of the bifurcated sentence. We have held that the court did err when it applied TIS-I statutes during sentencing because those penalties were obsolete before Thums’ conduct became chargeable as stalking with a dangerous weapon. Accordingly, we remand to the circuit court for resentencing in accordance with the proper penalty scheme. The court may also visit whether the companion charges should be concurrent or consecutive as the court sees fit.
The court doesn’t say just why Thums is subjected to resentencing on all counts, when his attack was just on a single, improperly sentenced count. But the theory might be that a multi-count sentencing “package” becomes “unbundled” when one count falls; see various cases throughout this topic, scrolling down through summaries. If that’s so, then perhaps the theory can be used to your client’s benefit in any given case. It might also be wondered just why the automatic commutation provision of § 973.13 (sentence exceeded permissible maximum automatically commuted to proper maximum) doesn’t apply to instances such as Thums’. The short answer is, because the court of appeals says it doesn’t, e.g., State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841(Ct. App. 1996) (“when a sentence is commuted pursuant to § 973.13, STATS., the sentencing court may, in its discretion, resentence the defendant if the premise and goals of the prior sentence have been frustrated”); cf.,   State v. Joseph F. Volk, 2002 WI App 274, ¶¶46-49 (remedy for unsupported enhancement is resentencing rather than § 973.13 commutation of ES excess: “When a crucial component of such a sentence is overturned, it is proper and necessary for the sentencing court to revisit the entire question”). But see State v. Glenn F. Schwebke, 2001 WI App 99, ¶¶25-31, affirmed on other grds., 2002 WI 55 (remedy for sentence which exceeded the permissible maximum—multiple counts of probation running consecutive to one another—is automatic commutation to total allowable term of probation).
Resentencing – Illegal Sentence: Maximum Term of Initial Confinement Exceeded
State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Where the term of initial confinement exceeds the permissible maximum, based on the rule that this term may not exceed 75% of the total sentence, the error is not harmless even though the term is less than the maximum that could have been imposed had the maximum sentence been given; the remedy is resentencing. ¶¶22-24.
The court holds open the possibility “that the error was harmless under reasoning analogous to that used in penalty enhancer cases in which error with respect to a penalty enhancer is ignored if the penalty enhancer is not used to enhance a sentence. See State v. Kourtidias, 206 Wis. 2d 574, 590, 557 N.W.2d 858 (Ct. App. 1996).” ¶24 n. 4. But are the situations at all analogous? “When a sentence is within the term prescribed by the statute for the substantive crime, the repeater statute is not invoked. Harris, 119 Wis.2d at 619, 350 N.W.2d at 637. Since the sentence on the enticement conviction did not invoke the repeater provisions, we do not address Kourtidias's argument on the merits.” If the sentencing court never actually uses the enhancer, it simply doesn’t matter whether the enhancer was improperly brought to the court’s attention: no harm, no foul. No comparable argument can be made relative to miscomputation of the sentence itself. Note, too, that where the sentence is less than the overall permissible maximum, resentencing may risk exposure to a greater sentence, see generally State v. Victor Naydihor, 2004 WI 43. In that instance, you might give some thought to invoking § 973.13 (sentence exceeding maximum permissible penalty automatically commuted to permissible maximum).
Review -- Resentencing -- Correction of Unlawful Sentence -- Double Jeopardy -- Increase in Original Sentence
State v. Timothy J. Helm, 2002 WI App 154, PFR filed 6/11/02
Issue: Whether resentencing, to correct an illegal sentence, violated double jeopardy because it resulted in an increase in the original sentence.
Holding: On sentence after revocation, the trial court reimposed probation on one of the counts; this was an unauthorized disposition which the trial court properly corrected by subsequently resentencing to an active term of imprisonment on that count.  Resentencing had the effect of increasing the original sentence, which triggers double jeopardy concerns. However, those concerns are satisfied, because the new sentencing result is based on the trial court's desire to implement the original dispositional scheme (supervision for lengthy period), as manifested in the prior sentencing proceeding. ¶¶12-14
Resentencing - modification of probation before term commences.
State v. James E. Gray, 225 Wis.2d 39, 590 N.W.2d 918 (1999), affirming unpublished decision.
For Gray: Helen M. Mullison.
Issue/Holding: Gray was originally convicted of three counts. On postconviction motion, the trial court vacated and dismissed with prejudice one count for lack of proof, and ordered a new trial on a second count. The third count conviction, for which Gray had received probation, remained viable. However, the trial court, after granting relief on the other counts, modified probation to include one year in jail as a condition. The supreme court upholds that modification. A court has statutory authority to modify probation before its expiration, Wis. Stat. § 973.09(3)(a). The circuit court can invoke this authority even if probation has not yet started. And, when the intent of probation is frustrated because of an unmet condition - here, confinement on the vacated counts - the court has authority to modify it, even if this occurs before probation commences.
Review -- Re-Sentencing -- Multiple Counts, Challenge to One Count
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
On-Line Brief
Issue/Holding:
Groth was sentenced on all three counts at the same hearing and, therefore, the court's determination of his sentence on any of the counts may well have affected its determination and structuring of his sentences on all three. Neither party on appeal has suggested otherwise. Therefore, although Groth has not challenged his convictions for aiding a felon and carrying a concealed weapon, his resentencing should encompass those counts as well as the homicide. See State v. Anderson, 222 Wis. 2d 403, 409-12, 588 N.W.2d 75 (Ct. App. 1998).
¶39 n. 1.
(Note: The language quoted above is probably broader than necessary. All the sentences seem to have stemmed from the same incident, so it's hard to imagine how inaccurate information could taint one sentence but not another. Moreover, the relevance of Anderson to this issue is simply difficult to see.)

Review -- Sentence after Revocation

Review -- Reconfinement Sentence (After Revocation of Extended Supervision), Imposed by Different Judge – Review of Original Sentencing Transcript not Absolute Necessity
State v. Clayborn L. Walker, 2008 WI 34, reversing 2007 WI App 142
For Walker: Amelia L. Bizzaro
Issue: Whether the judge is required, at a TIS reconfinement hearing, to have read the original sentencing transcript.
Holding:
¶3        We agree with the State and conclude that State v. Gee [3] misinterpreted our decision in Brown. We conclude that a circuit court is not required to read the original sentencing transcript in every reconfinement hearing. Rather, the circuit court should be familiar with the particulars of the case at issue. That can be accomplished in any number of ways, and we acknowledge that this may differ from case to case. As articulated in Brown, the circuit court must decide which factors are relevant for consideration in any given case, and the circuit court must use its discretion as to how it ascertains the information needed to consider the relevant factors. Accordingly, we reverse the court of appeals' decision in this case and overrule Gee.

¶19      As stated in Brown, the original sentencing transcript can be an important source of information regarding these factors and is generally readily available. … The parties are, therefore, encouraged to identify relevant information from the sentencing transcript or any other document and bring it to the circuit court's attention, so the judge may then specifically review that information.

¶20      While the circuit court may ascertain relevant information from a number of sources, we do not require that any one source or list of sources be utilized in every case. Rather, we merely require that the circuit court be familiar with the case before it. Ultimately, it is for the circuit court to determine the appropriate manner in which to accomplish this, and it may vary based upon the particular case.

¶23      While we did emphasize the likely usefulness of the sentencing transcript in our Brown decision, we did not intend for that to be construed as a per se rule that circuit courts must read the original sentencing transcript before every reconfinement hearing. Rather, we leave it to the circuit court's discretion to determine which factors articulated in Brown are relevant, and we leave it to the circuit court to determine how best to ascertain information pertaining to the relevant factors. While it certainly may be good practice for the circuit court to review the sentencing transcript, it may not always be necessary, and therefore, we do not create a per se rule, but instead leave it to the trial court's discretion.

What about sentencing after revocation (of probation)? Good question indeed. In that context, the court of appeals has separately held, a successor judge must have read the original sentencing transcript before proceeding to disposition, State v. Reynolds, 2002 WI App 15. Or so the holding may have been construed … but no longer. This is how the court of appeals, by way of distinguishing reconfinement from SAR, read its own holding in Reynolds:
   Jones also contends that the circuit court failed to review the original sentencing transcript and presentence investigation report prior to ordering reconfinement in violation of Reynolds. Reynolds holds that where the “record does not reflect the sentencing judge’s awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in ... the withholding of sentence, resentencing is appropriate.” Reynolds, 249 Wis. 2d 798, ¶2. We conclude that Reynolds is not applicable here because of a significant and meaningful difference in the procedural background. In eynolds, the circuit court withheld sentence and placed Reynolds on probation; a different judge imposed sentence for the first time after revocation of Reynolds’s probation. Id., ¶4. We conclude that Reynolds is not sufficiently analogous to the case at hand and reject Jones’s arguments to the contrary.
State v. Brandon E. Jones, 2005 WI App 259, ¶13. Has that result now been overturned along with Gee? Not quite, but it’s certainly been limited:
¶26      Walker, relying primarily on State v. Reynolds, argues that even pre-Brown court of appeals' decisions established that a circuit court must review the original sentencing transcript prior to a reconfinement hearing. We reject this argument. Reynolds was a sentencing after revocation of probation case and not a reconfinement hearing case. State v. Reynolds, 2002 WI App 15, 249 Wis.  2d 798, 643 N.W.2d 165. Moreover, Reynolds did not establish such a bright-line rule. Id., ¶¶9-11, 13-15. Rather, Reynolds supports the conclusion that reviewing the original sentencing transcript may be necessary in some cases. Id. For example, in Reynolds, a review of the original sentencing transcript, in order to ascertain the severity of the original offense, was "essential to a fair sentencing after revocation." Id., ¶11. To the extent that Reynolds even supports Walker's argument, the court of appeals seemingly had conflicting published decisions prior to Brown and Gee. Compare Reynolds with State v. Jones, 2005 WI App 259, ¶13, 288 Wis. 2d 475, 707 N.W.2d 876 (rejecting the defendant's argument that under Reynolds, a judge must review the original sentencing transcript prior to a reconfinement hearing). Our decision today resolves any potential conflicts that existed at the court of appeals——no per se rule exists.
This analysis is potentially jarring – the court of appeals simply lacks authority to ignore its own precedent; indeed, arguably lacks authority to withdraw any language from its own published caselaw. E.g., State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40, citing, Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246, 256 (1997); American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 ("This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so"). What this necessarily means, then, is that a conflict in court of appeals’ caselaw is theoretically impossible. Either the earlier holding must be construed as having been overruled or modified by subsequent authority from a higher court, or else the later, supposedly conflicting court of appeals’ holding must be given no effect because it represented an unauthorized exercise of judicial authority. Nugatory, in a word. See State v. Esteban Martinez, 2007 WI App 225, ¶23 (““Where two court of appeals decisions conflict, the first decision governs. State v. Swiams, 2004 WI App 217, ¶23, 277 Wis.  2d 400, 690 N.W.2d 452”). These observations don’t undermine the result in Walker, but are made simply to clarify that you shouldn’t read too much into the court’s idea about dueling court of appeals decisions.
Review -- Reconfinement Sentence (After Revocation of Extended Supervision) – Exercise of Discretion
State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
For Brown: Randall E. Paulson, SPD, Milwaukee Appellate
Amicus: Robert R. Henak and Amelia L. Bizzaro; Walter J. Dickey & David E. Schultz
Issue/Holding:
¶22     We conclude that a reconfinement decision, like an initial sentencing decision, involves the circuit court's discretion, and we review the circuit court's decision to determine whether that discretion was erroneously exercised. See State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999). An erroneous exercise of such discretion occurs "whenever it appears that no discretion was exercised in its imposition [of the sentence] or discretion was exercised without the underpinnings of an explained judicial reasoning process." McCleary, 49 Wis. 2d at 278. As long as the reconfinement court considered the relevant factors, and not irrelevant or improper ones, and the decision was within the statutory limits, the sentence will not be reversed, unless it "'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.'" Taylor, 289 Wis. 2d 34, ¶18 (citations omitted).
The court takes pains to say that “(a) reconfinement hearing is certainly akin to a sentencing hearing,” ¶20—strongly suggesting that the standards by which discretion is informed and reviewed ought to be pretty much the same. And that does seem to be the overall thrust of the opinion, although the court doesn’t quite say so explicitly. Note that the court of appeals very clearly held (¶17), “Moreover, we note that a reconfinement hearing is simply an extension of the original sentencing proceeding, and thus, the trial court need not address all relevant factors.” The supreme court now appears to have rejected that view, at least as an absolute proposition, albeit sub silentio:
¶21     In the present case, the court of appeals quoted Wegner, 239 Wis. 2d 96, ¶7, stating, "'[W]e will review the two sentencing proceedings on a global basis, treating the latter sentencing as a continuum of the first.'" State v. Brown, 2006 WI App 44, ¶17, 289 Wis. 2d 691, 712 N.W.2d 899. See also State v. Jones, 2005 WI App 259, ¶8, 288 Wis. 2d 475, 707 N.W.2d 876. In Wegner, the judge imposing the reconfinement sentence was the same judge who imposed the original sentence. Treating the reconfinement hearing as a continuum of the sentencing hearing is logical when the same judge is presiding over both the original sentencing hearing and the reconfinement hearing. However, in many cases, one judge will preside over the original sentencing and a different judge will do the reconfinement hearing, as was the situation in Brown's case. Under such circumstances, there is no continuum.
Review -- Reconfinement Sentence (After Revocation of Extended Supervision)
State v. Donald Odom, 2006 WI App 145
For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial
Issue/Holding: The requirement of sentencing after probation revocation that the judge review the original sentencing transcript, State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165 (Ct. App. 2001), does not apply to reconfinement after revocation of extended supervision, State v. Brandon E. Jones, 2005 WI App 259. Instead, reconfinement is reviewed under State v. John C. Brown, 2006 WI App 44, ¶17, whose requirements were met. ¶¶30-32.
Interestingly, the court failed to mention that the supreme court had granted review in Brown. Subsequently, a decision was issued, 2006 WI 131, partially summarized above; also see here. There's a strong argument to be made that Brown has overruled Jones and Odom on the idea that the reconfinement court's failure to review the sentencing transcript is categorically proper, ¶¶20-22. And, the Odom analysis is likewise very dubious to the extent it encourages a truncated reconfinement decision along with stinted appellate review. Point is, it must be read very carefully and with the Brown supreme court opinion very much in mind.
Review -- Sentence After (Extended Supervision) Revocation -- Sufficiency of Articulated Rationale
State v. Brandon E. Jones, 2005 WI App 259
For Jones: Amelia L. Bizarro
Issue: Whether the sentencing court provided sufficient reasons for Jones’s reconfinement following revocation of extended supervision.
Holding:
¶9        ….  The key is for the circuit court to provide sufficient information about its reasoning so as to allow for meaningful review. The “need for meaningful appellate review of a trial court’s decision to take away a person’s liberty must be our polestar.” Swiams, 277 Wis.  2d 400, ¶18.

¶10      In State v. Wegner , 2000 WI App 231, ¶8, 239 Wis. 2d 96, 619 N.W.2d 289, we considered this very issue. There the judge imposing a reconfinement sentence was the same judge who imposed the original sentence. As in Swiams, we held that the circuit court’s duty at sentencing after revocation and its duty at the original sentencing were the same. Wegner, 239 Wis. 2d 96, ¶7 n.1. Nonetheless, we clarified the reconfinement court’s responsibilities. ….  Finally, we held that proper sentencing discretion can exist without an explicit delineation of the McCleary sentencing factors at reconfinement. Wegner, 239 Wis. 2d 96, ¶7. There must, however, be an indication that the circuit court considered those factors. Id. Ultimately, we concluded that as long as the reconfinement court considered the proper factors and the sentence was within the statutory limits, “the sentence will not be reversed unless it is so excessive as to shock the public conscience.” Id., ¶12 (citing State v. Owen, 202 Wis. 2d 620, 645, 551 N.W.2d 50 (Ct. App. 1996)).

¶11      Here, at the reconfinement hearing, the circuit court referenced Jones’s original offense and the accompanying sentence. Jones’s attorney told the court of Jones’s accomplishments while in confinement and after release to the community. ... The court heard and considered the DOC report of Jones’s violations of the terms of his extended supervision and the DOC recommendation regarding reconfinement.

¶12      We observe that the circuit court connected the DOC report of Jones’s “abysmal” conduct while on extended supervision to the court’s conclusion that Jones continued to need rehabilitation. … Accordingly, the court concluded that Jones’s rehabilitation would have to occur in a “structured confined setting.” From this, we can reasonably infer that the court considered the most important sentencing factors to be the gravity of Jones’s offenses and his character. [ 4]


[4]  Although the circuit court makes no reference to protection of the public as a sentencing objective, we can infer from the nature of Jones’s extended supervision violations that reconfinement also advanced the goal of protection of the public. In particular, Jones’s failure to comply with Wisconsin ’s Sex Offender Registry and his unsupervised contact with minors support this inference.
It may seem like another era, but State v. Curtis E. Gallion, 2004 WI 42 is a mere 18 months’ old. No doubt you vividly recall its high-flown rhetoric about “reinvigorating” sentencing review and its explicit recognition that “the advent of truth-in-sentencing [imposes] a greater need to articulate on the record the reasons for the particular sentence imposed.” Gallion (¶38) specifically rejected the idea that implied rationales would any longer suffice. And, as relevant here, this regime of presumably meaningful review was extended to ES revocation, in State v. Swiams, 2004 WI App 217, ¶23, 277 Wis. 2d 400, 690 N.W.2d 452 (reconfinement proceeding is tantamount to “sentencing,” including for purposes of Gallion-type “meaningful review”). So far so good; indeed, you’d think a straightforward application of Gallion precludes footnote 4 above (which brazenly infers a reconfinement rationale). But you’d be wrong: no sooner had the supreme court released Gallion than the court of appeals began determinedly retreating from its mandate, scanting its impact, in State v. Wallace I. Stenzel , 2004 WI App 181, ¶9 (“it does not make any momentous changes”); and watering it down, in State v. Edward W. Fisher , 2005 WI App 175, ¶¶21-24 (sentencing court need not “explain[] with specificity the comparative weight it ascribed to each factor and exactly how these factors translated into a specific number of years”). Indeed, a cursory review of Gallion-type appeals uncovers none which vacated the sentence. (To be sure, it’s not really possible to review summary orders, so a definitive accounting isn’t possible; and, it's not feasible to go through each and every Gallion-type appeal accessible on-line. But it’s a fair assumption that reversals are few and far between; some “reinvigoration” of the review process.

And now the court of appeals comes to bury Gallion with a final spadeful of dirt, without pausing for pretense of praise. Indeed, it simply replaces Gallion’s acclaim for meaningful review with … State v. Brian C. Wegner , 2000 WI App 231, 239 Wis.2d 96, 619 N.W.2d 289, which, the court says (¶10), “considered this very issue.” Just as a purely procedural matter, one might wonder why, if the “very issue” was previously considered and therefore controlled by existing precedent, the need to publish what would be redundant authority. That quibble aside, is it really true that Wegner considered the issue? Note that the court repeatedly characterizes Wegner as a “reconfinement sentence” case (¶10). Now, read the very first sentence (¶1) of Wegner: “Brian C. Wegner argues that the trial court erroneously exercised its discretion when it sentenced him after probation revocation.” Not reconfinement, but sentencing after revocation of probation. Is this mischaracterization, then, mere sloppiness that however irksome (if the court can’t get that obvious a detail right, what else did it get wrong?) didn’t really impact the result? To answer that, consider two significant details.

First, Wegner is a pre-Gallion case. That wouldn’t make any difference if you don’t think that Gallion makes any difference. Apparently the court of appeals takes that view, hence the seamless applicability of Wegner. But note that whenever confronted with a sentencing that preceded Gallion, the court of appeals has been quick to say that Gallion applies only to future cases; see, e.g., State v. Eduardo Jose Trigueros , 2005 WI App 112, ¶4 n. 1. (“ State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, was decided after Trigueros was sentenced. Gallion in haec verba applies only to ‘future cases.’ See id., 2004 WI 42, ¶76 …”). In other words, the Gallion regime of strict review doesn’t apply to pre- Gallion sentencing; but the prior, anything-goes line of caselaw applies to post- Gallion sentencing. Heads I win, tails you lose.

Second, Wegner is also a pre-TIS case. This is where the court of appeals’ mischaracterization of “reconfinement” becomes insolubly problematic. “Reconfinement” all but says, “TIS”; you get reconfined only on a bifurcated sentence. And it is TIS, remember, that lies at the heart of Gallion: determinate sentencing, and elimination of parole, imposes greater responsibility on accurate sentencing data, articulation of sentencing rationales, and closer review on appeal. All of which may have pertained to a pre-TIS world, but only in much diminished form; hence the need for more meaningful review under TIS.

Thus, when the court of appeals (¶10) recites Wegner for the idea “that proper sentencing discretion can exist without an explicit delineation of the McCleary sentencing factors at reconfinement” it is twice-wrong. Wegner does not purport to address reconfinement factors. And, even if it did, such a holding would be supplanted by Gallion’s subsequent requirement that explicit delineation is necessary. Or, rather, was necessary. That case is now, for the time being at least, all but a dead letter.

Review -- Sentence After (Extended Supervision) Revocation -- Reconfinement Sentence Imposed by Different Judge
State v. Twaun L. Gee, 2007 WI App 32
For Gee: Amelia L. Bizzaro
Issue/Holding: The holding of State v. Brandon E. Jones, 2005 WI App 259, ¶13, that the reconfinement judge need not review the original sentencing transcript was overruled by State v. John C. Brown, 2006 WI 131, ¶38:
¶14   In Brown, the supreme court addressed the very issue raised in Jones and advised the trial courts that:
The original sentencing transcript is an important source of information on the defendant that discusses many of the factors that circuit courts should consider when making a reconfinement decision. The original sentencing transcript is readily available for a circuit court to examine, and those portions that are considered by the court to be relevant should be mentioned.
Brown, 725 N.W.2d 262, ¶38.

¶15   … The supreme court concluded that the original sentencing transcript is an important source of information and that the transcript most likely will contain a discussion of the many factors that trial courts should consider at reconfinement hearings. Brown, 725 N.W.2d 262, ¶38. Given the explanation of the importance of sentencing transcripts, we find it puzzling that the State would argue that the trial court need not review the original transcript. Moreover, the directive that the trial court should determine which portions of the original sentencing transcript are relevant clearly assumes that the transcript will be read and considered by the sentencing court. Thus, we conclude that the trial court was obligated to review, at the very least, the original sentencing transcript. Consequently, we reverse and remand this case to the trial court to conduct a reconfinement hearing consistent with the relevant factors set forth in the supreme court’s Brown opinion, including a reading of the original sentencing transcript.

Gee argued that the reconfinement judge erred in failing to review the original sentencing transcript and the PSI, ¶1. The court of appeals doesn’t seem to say anything about the PSI, but note the carefully phrased enunciation of the obligation: “to review, at the very least, the original sentencing transcript.” You may want to press for review of the PSI where tactically advantageous; nothing in this decision says that it need not be reviewed, and perhaps the appellate court will put the PSI on the same footing as the transcript. Note, as well, that the recent State v. Donald Odom, 2006 WI App 145, ¶¶30-31 (unmentioned here by the court of appeals but also holding transcript-review unnecessary on reconfinement) is overruled as well, if sub silentio. Separately, the court of appeals upholds the reconfinement sentence as supported by an adequate explanation of reasons, because “(t)he trial court considered the three primary factors and explained its concerns,” ¶10; and rejects a claim that the reconfinement court must give deference to DOC’s recommendation, ¶12—both these holdings follow Brown without elaboration.
Review -- Sentence After (Extended Supervision) Revocation -- Reconfinement Sentence Imposed by Different Judge
State v. Brandon E. Jones, 2005 WI App 259
NOTE: This holding subsequently overruled see State v. Twaun L. Gee, 2007 WI App 32, ¶¶14-15, separately summarized
For Jones: Amelia L. Bizarro
Issue/Holding:
¶13      Jones also contends that the circuit court failed to review the original sentencing transcript and presentence investigation report prior to ordering reconfinement in violation of Reynolds. Reynolds holds that where the “record does not reflect the sentencing judge’s awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in ... the withholding of sentence, resentencing is appropriate.” Reynolds, 249 Wis.  2d 798, ¶2. We conclude that Reynolds is not applicable here because of a significant and meaningful difference in the procedural background. In Reynolds, the circuit court withheld sentence and placed Reynolds on probation; a different judge imposed sentence for the first time after revocation of Reynolds’s probation. Id., ¶4. We conclude that Reynolds is not sufficiently analogous to the case at hand and reject Jones’s arguments to the contrary.
If you ignore the established principle that a reconfinement proceeding is tantamount to an original “sentencing,” State v. Swiams, 2004 WI App 217, ¶23, 277 Wis. 2d 400, 690 N.W.2d 452 (including for purposes of Gallion-type “meaningful review”), then the analogy to State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165 (Ct. App. 2001) might not be exact. On the other hand, if your goal is to ensure migration of pre-TIS/ Gallion mechanical review to the TIS regime, then it makes sense to reject a requirement that the sentencing judge be familiar with relevant data.
Review -- Sentence After Revocation -- Sentence imposed by Different Judge
State v. Danny A. Reynolds, 2002 WI App 15
For Reynolds: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether, on sentencing after revocation where a different judge is imposing the sentence, the new judge is required to review the record from the original sentencing.
Holding:
¶2. We conclude that because the sentencing-after-revocation record does not reflect the sentencing judge's awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in deciding that Reynolds' case was an exceptional one justifying the withholding of sentence, resentencing is appropriate. Accordingly, we reverse and remand for resentencing.
(Note: The court has previously, as it stresses here, regarded SAR as a continuation of the original sentencing, so that where the same judge presides as both he or she need not restate the reasons supporting the original disposition. State v. Wegner, 2000 WI App 231 ¶7. However, where a different judge is involved, the reviewing court has no basis to assume that he or she has adopted or acknowledged the first judge's reasoning. ¶8. In this case, the two judges articulated entirely different views of offense severity, causing doubt as to whether the SAR was based on accurate information. ¶10. Though the SAR judge wasn't bound by the first judge's "findings," s/he "was required to be informed of the trial record and (first judge's) assessment, based on the evidence, of the severity of ... the crime." ¶14. The original judge is directed to conduct the resentencing on remand. ¶15.)
Go to Brief
Review -- Sentence After Revocation -- Imposed by same Judge
State v. Brian C. Wegner, 2000 WI App 231, 239 Wis.2d 96, 619 N.W.2d 289
For Wegner: Scott A. Szabrowicz
Issue: Whether the sentencing court erroneously exercised discretion, in sentencing after revocation, by failing to consider primary sentencing factors.
Holding:
¶9 We conclude that when the same judge presides at the sentencing after revocation and the original sentencing, the judge does not have to restate the reasons supporting the original sentencing; we will consider the original sentencing reasons to be implicitly adopted. Like the appellate court, the trial court should be able to rely upon the entire record, including the previous comments at the first sentencing. Cf. [McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971)]. This is especially true where it is the same judge. Further, it would be a mismanagement of judicial resources to require a court to go back to square one when sentencing after revocation. Accordingly, we find the proper exercise of discretion.

Review -- Waiver of Objection

Review, Generally, Preserved by Postconviction Motion
State v. Vincent T. Grady, 2007 WI 81, affirming 2006 WI App 188
For Grady: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding: ¶14 n. 4:

The State contends that Grady waived the issues presented. Grady did not waive the issues presented because he filed a postconviction motion pursuant to Wis. Stat. § 809.30(2)(h). Filing a postconviction motion is a timely means of raising an alleged error by the circuit court during sentencing. See e.g., State v. Gallion, 2004 WI 42, ¶14, 270 Wis. 2d 535, 678 N.W.2d 197.

Review -- Waiver of Objection to Reliance on Information
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
On-Line Brief
Issue/Holding: Reviewing court may address merits of attack on sentence based on inaccurate information, notwithstanding absence of contemporaneous objection. ¶25. It is appropriate here for the court to overlook waiver, where the state concedes that it can't support the information now challenged; and defendant's postconviction motion showed that information was inaccurate and also established a basis for believing that he didn't have an adequate opportunity to refute the information. ¶26.
Review -- Waiver of Objection to Reliance on Information
State v. Anthony J. Leitner, 2001 WI App 172, affirmed on other grds., 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341
For Leitner: Jim Scott
Issue: Whether the defendant waived his right to object to trial court reliance on certain information by failing to lodge a contemporaneous objection.
Holding:
¶41 ... When the prosecutor subsequently argued that the trial court should not consider the convictions, but was free to consider the underlying behavior, Leitner's counsel did not object. More importantly, there was no objection when the trial court made reference to the underlying behavior in passing sentence. So far as the trial court knew, Leitner agreed with the prosecutor's analysis and did not object to the court's consideration of the underlying conduct. Accordingly, Leitner waived the claim. See Mosley, 201 Wis. 2d at 46; State v. Rogers, 196 Wis. 2d 817, 826-29, 539 N.W.2d 897 (Ct. App. 1995); State v. Holt, 128 Wis. 2d 110, 122-24, 382 N.W.2d 679 (Ct. App. 1985).
(Court, however, chooses to ignore waiver, because "questions raised here merit a decision." ¶42. And, on review, the supreme court expressly declined to “decide the present case on grounds of waiver, although the defendant failed to object at sentencing to the introduction of the facts underlying the expunged records of convictions,” ¶11.)
Review -- Waiver of Objection to Reliance on Information
State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565, affirmed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak
Issue: Whether the defendant waived objection to the sentencing court's reliance on information sealed from the defendant's inspection.
Holding:
¶42 We accept the State's waiver argument. First, just because the trial court was in its "imposing sentence" phase, that did not prevent Samuel from objecting. He had as much right to object then as at any other time during the proceeding. Second, while we acknowledge that there are times when we will reject the State's waiver argument if it was not made at the postconviction stage, there is no iron-clad rule. A waiver analysis depends, in part, not on whether an issue was raised at the postconviction stage, but on whether the trial court could have taken some type of preventive action had the issue been timely raised. We agree with the State that had the issue been timely raised before the sentencing court, a solution could likely have been arrived at.
(Court stresses, though, that the material at issue "is of little consequence," and wasn't "important to the integrity of the result"; court implies that otherwise waiver bar might not have been  imposed. ¶43.)

PRESENTENCE REPORT

Presentence Report -- Bias of Author: Spouse of Another Agent Concurrently Responsible for Defendant’s Supervision
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: The rule of State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997) (conflict of interest where PSI author married to defendant’s prosecutor) does not extend to situation where PSI author is married to another probation agent and both are jointly supervising the defendant:
¶5       We do not believe that the same inherent bias exists in the relationship between two supervising probation agents. Suchocki stated that it was vital for the author of the report to be independent of either the prosecution or the defense. Id. at 518. This independence is crucial because the prosecution and the defense are the two parties to a criminal action, and the report’s author functions as an agent of the court which must deal impartially with both parties. Thexton’s argument is essentially that a report’s author must be independent of other probation agents, but this cannot be the case. The State correctly points out that the supervising probation agent often conducts the PSI. [4] If one supervising probation officer can be a neutral agent of the court, we can think of no reason why two cannot be, or why it should make any difference if the two happen to be married. The reasoning of Suchocki does not fit the facts of this case, and we affirm the circuit court on this point.
Presentence Report – Miranda Warnings
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: Because “no elements were outstanding at the time the PSI was being prepared,” Thexton wasn’t entitled to Miranda warnings, ¶¶8-9.
Presentence Report – Right to Counsel
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: The agent’s use of a prior PSI during the interview of defendant for the current case did not trigger any additional right to counsel:
¶10      Thexton further argues that his right to counsel was violated because he was unable to consult with his attorney regarding the use of the prior PSI during the interview. Thexton relies upon State v. Knapp, 111 Wis. 2d 380, 330 N.W.2d 242 (Ct. App. 1983). In that case, we rejected the argument that a defendant had the right to have an attorney present at a presentence interview. Id. at 381. We noted, however, that there are other safeguards for a defendant with regard to the presentence investigation, including the right to consult with counsel before a presentence interview and the right to have counsel dispute information contained in the report. Id. at 385. Thexton does not allege that he was prevented from consulting with counsel before the investigation. Instead, he seems to be claiming that he had a right to consult with counsel before any questions relating to his prior PSI. We disagree. The right to consultation with counsel before a presentence interview does not include a right to be apprised of all lines of questioning before the interview occurs. The other safeguards noted in Knapp, including the right to dispute information in the report, adequately protect a defendant’s Sixth Amendment rights, and Thexton’s counsel did in fact vigorously and meticulously challenge the information and conclusions in the PSI at the sentencing hearing.
Presentence Report -- Defendant’s Right of Access, No-Merit Appeal
State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison Appellate
Amicus: Meredith J. Ross & William E. Rosales
Issue/Holding:
¶30      We reject Parent's contention that Wis. Stat. § (Rule) 809.32(1)(d) confers an unqualified right for a no-merit appellant to access personally the PSI report. …

¶31      But neither are we persuaded by the State's argument, which would place the onus on the defendant to demonstrate a "substantial need" for the PSI report without knowing (or recalling) its contents. …

¶35      We conclude that permitting a defendant in a no-merit appeal access to the PSI report is consistent with the design and purpose of the no-merit procedure. …

¶43      Accordingly, under Wis. Stat. §  972.15(4m) (2005-06), we conclude that a defendant subject to the no-merit procedure may view a copy of the PSI report but may not keep a copy of it. This opportunity to view the report must be meaningful; the defendant should have sufficient time to conduct a thorough review of the document and, if the defendant has made a timely request to view the PSI report, the viewing should occur soon enough to give the defendant time to incorporate material from the PSI report in the defendant's response to the no-merit report.

¶45      Consistent with the requirements of Wis. Stat. § 972.15(3), we hold that a defendant subject to a no-merit appeal must notify the circuit court of the defendant's desire to view the PSI report to permit the judge to review the PSI report and to redact as the judge deems appropriate identifying information of persons who provided information for the report and information that may be confidential under other law not discussed here. The circuit court's exercise of discretion is limited under the statute to redacting, as it deems appropriate, identifying information of persons who provided information and information that may be confidential under other applicable law. Under § 972.15(4m) (2005-06), the circuit court may not deny altogether the defendant's request to view a copy of the PSI report.

Presentence Report -- Attorney General’s Right of Access, No-Merit Appeal
State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison Appellate
Amicus: Meredith J. Ross & William E. Rosales
Issue/Holding:
¶49      We conclude that the attorney general comes under the purview of Wis. Stat. § 972.15(4) and (4m) (2005-06) because, in criminal appeals, the attorney general is often the State's successor to the district attorney. … We therefore conclude that under §§ 972.15 and 967.02(7) the attorney general's office should submit any requests to obtain a copy of the PSI report and to disclose its contents in the State's brief to the circuit court for the purposes of a no-merit appeal.
Presentence report – Miranda-Related Safeguards
State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Because the “presentence investigation was not part of the accusatory stage of a criminal proceeding”; and because the PSR “interview was routine and was not conducted while Jimmie’s jeopardy was still in doubt, Jimmie, “unlike the defendant in Estelle, was not entitled to Miranda warnings at his presentence interview,” ¶34. Nor was Jimmie entitled to presence of counsel, State v. Knapp, 111 Wis. 2d 380, 330 N.W.2d 242 (Ct. App. 1983), controlling, ¶35.
This discussion is dicta – the court already agreed, ¶¶21-22, that these challenged statements were indeed inadmissible, under State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989); there simply was no need to discuss whether they might also be inadmissible under some other, distinct theory.
Presentence Report -- Defense-Prepared -- Admissibility, Trial Involving New Charge
State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: ¶¶21-22: Confidentiality of court-ordered presentence reports, State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989) is not a right applicable to defense-prepared PSRs, State v. Thomas A. Greve, 2004 WI 69. Thus, the defendant’s statements in a D-PSR are admissible in a trial involving a new charge. Nor does it matter that the authors of the PSR and D-PSR exchanged information, (court stressing that D-PSR author “acted on his own, based on his professional expertise, and such action was independent of [the PSR author]”).
First, a bit of background. Jimmie lost a sexual assault trial after testifying that he had not committed the offense. But, to make a long story short, he eventually told the D- and PSR authors that he had committed the crime and was remorseful. You might think that the initial step toward rehabilitation, but instead it merely earned him a 65-year sentence and a perjury prosecution for lying under oath at the trial. Hence, the question of admissibility of the admissions, without which the perjury case would be stopped in its tracks. The court of appeals, in its otherwise breathless rush to give the heave-ho to Jimmie’s appellate arguments, pauses momentarily to express mild disquietude “about the policy implications of this decision,” ¶26, namely the inhibiting effect on candid admissions of guilt:
¶27. Thus, we are presented with competing interests. We are concerned that the regular use of the perjury statutes may chill free and unfettered posttrial admissions, which are so necessary for rehabilitation and sentencing. However, a misuse of prosecutorial discretion challenge is not before us and we cannot address it here. Further, should prosecutors use this decision to charge defendants who admit guilt during the sentencing phase with perjury, the propriety of such charging decision is a question best left to the supreme court for a later date.
Take that!, Mr. and Ms. Prosecutor: if you “regularly” lodge perjury charges in the wake of posttrial admissions, the court of appeals just might ask the supreme court to say something about it. (And by the way, it’s not just admissions at sentencing – think about all those sexual offender treatment programs centered around admitting guilt; nothing to prevent prosecutors from using them to support perjury prosecution years after the trial.)

This background might be at least mildly interesting – defense counsel’s strategy sessions will no doubt lengthen – but even more interestingly, on appeal Jimmie did not challenge admissibility of the D-PSR; instead, he limited his argument to inadmissibility of the PSR alone. His appellate brief couldn’t be clearer. The statement of the issue of ineffective assistance addresses “FAIL(URE) TO OBJECT TO TESTIMONY BY THE PRESENTENCE WRITER” – not the D-PSR writer. The summary of the argument asserted “entitle(ment) to a new trial because the presentence writer should not have been permitted to testify” – not because the D-PSR shouldn’t have been permitted to testify. The relevant argument heading was that “Trial Counsel Was Deficient When He Failed To Object To [PSR author] Doug Geske’s Testimony” – not when he failed to object to the D-PSR author’s testimony. That Jimmie was limiting his attack to the PSR was made clear in his concluding remark: “In sum, Geske was key to this prosecution. The erroneous admission of his testimony meant that Rogers did not have a fair trial, and the outcome of the trial is unreliable.” How much clearer could Jimmie have been? Why rant about it, though, if the testimony is indisputably admissible anyway? Because it suggests more than a little sloppiness on the court’s part, something that seems to have infected its discussion on other points, most pertinently the court’s treatment of prejudice, discussed elsewhere. To which it might be added that, if the court wanted to deter these sorts of prosecutions it should have given a bit more thought to finding prejudicial effect from the inadmissible PSR. If, that is, the court wanted to walk out on that particular limb.

Presentence Report -- Court-Ordered -- Admissibility, Trial Involving New Charge
State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue: Whether the holding of State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989) with respect to confidentiality of presentence reports “only prohibited use of information obtained during the presentence investigation in a subsequent trial concerning the same charges, but did not prohibit use of the information in subsequent prosecutions for different offenses,” ¶14.
Holding:
¶The State's attempt to limit Crowell to cases where the State seeks to use information from the presentence investigation at a trial following the withdrawal of a guilty plea must fail. The rationale behind the Crowell court's decision supports a broader application of Wis. Stat. § 972.15. The Crowell court was concerned that if a defendant was fearful that the information he or she provided an investigator could be used at a subsequent trial to obtain a conviction, the defendant would be less forthcoming with potentially dangerous facts, thereby jeopardizing the sentencing process. This concern is present regardless of whether that subsequent trial concerns the same or a different charge. Accordingly, we reject the State's argument that Geske's testimony was properly before the court and conclude that Jimmie's counsel's failure to object to Geske's testimony constitutes deficient performance.
See also State v. Everybodytalksabout, Wash SCt No. 78514-7, 9/6/07 (defendant's admission in PSI violated 6th amendment right to counsel when admitted against him at trial).
Presentence Report -- Defense-Prepared -- Confidential Character of Defendant’s Statements
State v. Thomas A. Greve, 2004 WI69, on certification
For Greve: Jeffrey J. De La Rosa
Issue: Whether State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989), construing Wis. Stat. § 972.15 as limiting the use of a court-ordered presentence investigation report (PSI) to postconviction settings, also applies to a defendant's sentencing memorandum.
Holding:
¶17. The confidentiality afforded to court-ordered PSIs under Wis. Stat. § 972.15 that Greve seeks for his sentencing memorandum is contained within subsection (4). It provides that "the presentence investigation report shall be confidential . . . ." ...

¶20 … (In) order to arrive at the conclusion Greve asks that we reach, we would have to conclude that subsection (4) refers to documents in addition to those described in the other subsections of § 972.15. However, nothing in the plain wording of subsection (4) or of any other subsection of § 972.15 indicates that is what the legislature intended. Accordingly, we conclude that the plain language of § 972.15 refers only to court-ordered PSIs and does not refer to a defendant's sentencing memorandum.

¶21. Greve also argues that even if the legislature did not intend that privately prepared sentencing memoranda should be included with the PSIs described in Wis. Stat. § 972.15, our decision in Crowell should be extended to defendants' sentencing memoranda because they serve the same purpose as court-ordered PSIs. Greve argues that Crowell is broadly written, and therefore is elastic enough to be expanded to apply its concepts to a defendant's sentencing memorandum. We conclude that Crowell is a statutory interpretation case and cannot be expanded to a defendant's sentencing memorandum not described in the statute.

The court goes on to say that public policy considerations don’t require that a defendant’s statements in a defense-commissioned PSI be confidential, ¶¶36-40. Take careful note of the split on the separate issue of whether the right of allocution is constitutional, or merely statutory (§ 972.14(2)). For discussion of federal treatment of this issue, see U.S. v. Reyna, 5th Cir. No. 01-41164, 1/28/04 (itself concluding that though the right to allocution is neither constitutional nor jurisdictional, its unobjected-to denial is nonetheless presumptively prejudicial, at least where the sentence isn't "at the bottom of the guideline range or if the court rejected arguments by the defendant that would have resulted in a lower sentence"). Compare People v. Evans, Cal SCt No. S141357, 7/24/08 (California limitation of allocution to sworn statement subject to cross-examination is constitutional). Wisconsin case law has long recognized that allocution is afforded as a matter of due process. E.g., Bruneau v. State, 77 Wis. 2d 166, 174, 252 N.W.2d 347 (1977). However, a plurality of 3 would reverse that line of authority, and make the right purely statutory. ¶¶29-35. They lose the decisive fourth vote on this point, Justice Crooks, who concurs to say that though he wouldn’t reach the issue in this case, there’s “a strong possibility” allocution will be supported by the Wisconsin Constitution. ¶¶41-44. As a result, the court’s holding is limited to a view that defense-prepared PSIs have no statutory support safeguarding evidentiary use. The implications are all too obvious, and the dissent usefully summarizes them:
¶60. As I read the lead opinion, a defendant cannot repeat word-for-word to a person preparing his sentencing memorandum what he told the person preparing the PSI, without losing the protections of the PSI statement recognized in State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989). Correspondingly, a defendant cannot (1) expand his discussion of the offense; (2) personally clarify error in the PSI's description of the offense; (3) explain his motivation for the offense; or (4) personally express apology and remorse for the offense without putting himself in jeopardy. The logic of the lead opinion strips a defendant of use immunity even if he only quotes from his statement in the PSI because, unlike the PSI, the sentencing memorandum is not a confidential document. In short, the majority sharply curtails a defendant's right to make his own case at sentencing.

¶61. The State reassures us that the defendant can say everything he wants to say in the PSI and receive immunity for it. This does not explain what the defendant should do if there is no PSI,18 or if the defendant forgets something until after he sees the written PSI, or if the PSI leaves something out or gets something wrong. In State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), this court acknowledged that "some of the information in a PSI may be unverified and some of it may be inaccurate." Id. at 194. A defendant is entitled to be sentenced on the basis of true and correct information.

¶62. In essence, the State contends that the defendant has no right to make the case for himself at sentencing in the way he wants to make it, unless he is willing to surrender his rights against self-incrimination if there is a second prosecution.

¶63. The majority forces a defendant to choose between preserving the immunity for statements made in the PSI, or making the most effective case he can in his own sentencing memorandum. He cannot do both. If the defendant chooses to preserve his immunity, he must restrict the range and candor of his sentencing memorandum. This will limit the defendant's right to make his case to the court, and it may deprive the court of information. If the defendant speaks candidly about the offense in his sentencing memorandum, he must give up the protections afforded to his statements under Wis. Stat. § 972.15. This severely undermines the Crowell decision.

Presentence Report -- Enhanced Need for, under 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:
¶31. Likewise, we agree with the Criminal Penalties Study Committee that the judiciary must address the increased responsibility placed upon the sentencing court in light of truth-in-sentencing. As the Committee observed, truth-in-sentencing legislation caused a "shift of more complete--and informationally accurate--sentencing decisionmaking to the judiciary." …

¶34. Now judges have an enhanced need for more complete information upfront, at the time of sentencing. Judges would be assisted in knowing about a defendant's propensity for causing harm, the circumstances likely to precipitate the harm (e.g., alcoholic beverages, proximity to school children, etc.), and the connection between the elements of the sentence recommended and the objectives of sentencing. To this end, we encourage judges to request more complete presentence reports.

Presentence Report -- Sentencing Factor, 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:
¶28 In terms of the length of his sentence, Taylor argues that there appeared to be no "starting point" for the court of some very low period of confinement, or even the period of confinement recommended by the PSI writer. We cannot agree. At the sentencing hearing, the court clearly began its assessment of the appropriate sentence for Taylor with the PSI and the information and recommendations contained therein: "What drives my decision in this case . . . is the information I've received on not only this presentence, but also the presentence that was attached to it that Judge Mueller used in her sentence."

¶29 As stated by this court, "[t]he [PSI] is designed to assist the sentencing court in determining the appropriate sentence for that defendant and the public. Rational and consistent sentencing decisions cannot be achieved without a reliable information base. The [PSI] is supposed to provide the sentencing court with that information base." State v. Crowell, 149 Wis. 2d 859, 868, 440 N.W.2d 352 (1989) (citations omitted). We believe it is clear from the sentencing transcript that the circuit court properly used the PSI as its information base or starting point for the appropriate sentence to impose.

Presentence Report – Independent Nature of Process of Preparation Limits Party’s Ability to Attempt Ex Parte Influence
State v. Joshua L. Howland, 2003 WI App 104
For Howland: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶32. We must also note that the inappropriate nature of the contact between the district attorney's office and the Division of Community Corrections borders on ex parte communications. Our supreme court has acknowledged the importance of the PSI to the sentencing process. State v. Suchocki, 208 Wis. 2d 509, 518, 561 N.W.2d 332 (Ct. App. 1997). The securing of a PSI is an integral part of the sentencing function and is solely within the judicial function. Young v. State, 49 Wis. 2d 361, 368, 182 N.W.2d 262 (1971). The purpose of a PSI is to assist the judge in selecting the appropriate sentence for the individual defendant. State v. Knapp, 111 Wis. 2d 380, 384, 330 N.W.2d 242 (Ct. App. 1983). The Division of Community Corrections does not function as an agent of either the State or the defense in fulfilling its role but as an agent of the trial court in gathering information relating to a specific defendant. Suchocki, 208 Wis. 2d at 518.

¶33. The preparer of the PSI is to be a neutral and independent participant in this sentencing process. State v. McQuay, 154 Wis. 2d 116, 131, 452 N.W.2d 377 (1990). Presentence reports are designed to gather information concerning a defendant's personality, social circumstances and general pattern of behavior so that the judge can make an informed sentencing decision. Knapp, 111 Wis. 2d at 386. In Wisconsin, the entire sentencing process is to be a search for truth and an evaluation of alternatives and any advance understanding between the prosecutor and defendant must not involve any persons conducting a presentence investigation for the court. Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971). …

¶36. The integrity of the sentencing process demands that the report be accurate, reliable and, above all, objective. Id. at 518. A defendant's cooperation and openness depend upon the objectivity of this report; a cooperative and open relationship would be impossible if the defendant perceives the probation officer to be a mere puppet of the district attorney's office. Because of the requirement that the report be objective, it is of vital importance that the author of the report be neutral and independent from either the prosecution or the defense. Id.

Presentence Report -- Assessment Tainted by Conflict of Interest
State v. Randy D. Stafford, 2003 WI App 138
For Stafford: Robert G. LeBell
Issue/Holding: A mental health professional whose assessment of the sexual assault defendant was incorporated into the presentence report and cited at length by the sentencing judge and who had, unbeknownst to the defense, treated the victim for the six months prior to the assessment, had a conflict of interest that amounted to a new factor requiring resentencing.
Although the grant of relief is based on a new-factor theory (the PSI author's connection to the victim wasn't known to the defense) it is the consequential conflict of interest that leads to relief:
¶8. The State, however, misses Stafford's point. Stafford is arguing that Nooe's assessment was compromised because she was serving two masters-the victim and the court-and she failed to disclose her dual service to anyone. The precise reason why Nooe undertook the assessment is irrelevant. The fact remains that Nooe's report, regardless of whether it was for the purpose of treatment or for forensic sentencing purposes, was intended to be before the trial court at sentencing. As a sentencing tool, the report must be accurate, reliable and objective.
The court goes on to find "persuasive" "the reasoning of" State v. Suchocki, 208 Wis. 2d 509, 518, 561 N.W.2d 332 (Ct. App. 1997), namely that the PSI author's spousal connection to Suchocki's prosecutor
was sufficient to call into question the objectivity of the PSI as a matter of law and, at the least, raised serious questions as to the fairness of the sentencing process to the defendant....We then acknowledged the importance of the PSI to the sentencing process and recognized that the integrity of the sentencing process demands that the report be accurate, reliable and, above all, objective and concluded that the PSI should have been struck.... These same principles apply to the facts of this case.
¶¶9, 10, 11. Clearly, then, relief for Howland could have been based just as easily on the PSI author's conflict of interest alone, as on the somewhat more intricate theory that the conflict amounted to a "new factor."
Presentence Report -- Use / Subsequent to Sentencing
State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn
Issue/Holding:
¶14    Montroy also argues a new PSI is necessary because the inaccurate information will continue to prejudice him in the future. He cites Wis. Admin. Code § DOC 328.27 (Nov. 2002) for examples of the various uses for a PSI beyond sentencing. However, Wis. Stat. § 973.08(2) requires that the transcript of Montroy’s sentencing hearing be part of his record. [6] Accordingly, Montroy’s record will include the court’s comments striking the improper references. Further, the uses the Department of Corrections might have for a PSI is not a basis to order a new PSI. See State v. Bush, 185 Wis.  2d 716, 723-24, 519 N.W.2d 645 (Ct. App. 1994). Any speculative future prejudice Montroy may suffer from the inaccuracies in his PSI does not compel us to overturn his sentence or order a new PSI.
[6] The relevant portion of Wis. Stat. § 973.08, entitled “Records accompanying prisoner,” provides:
(2) The transcript of any portion of the proceedings relating to the prisoner’s sentencing shall be filed at the institution within 120 days from the date sentence is imposed.
Just to be clear about it, Bush says that the post-sentencing procedure for remedying an inaccurate PSI is through the inmate complaint system, with review by certiorari.
Presentence Report -- Use / Challenge to Factual Accuracy
State v. Wayne R. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998)
For Anderson: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
A PSI represents an important source of guidance for a trial court in a sentencing proceeding. A sentencing constitutes a critical phase of a criminal proceeding. And, in a case involving a plea of guilty, no contest, or an Alford plea, the sentencing undoubtedly is the most critical phase of the proceeding. We acknowledge that sentences are not conducted with the formality of trials. See, e.g., State v. Scherreiks, 153 Wis.2d 510, 521-22, 451 N.W.2d 759, 764 (Ct. App. 1989); see also § 9l1.01(4)(c), Stats. Nonetheless, the trial court has an important factfinding role to perform if facts relevant to the sentencing decision are in dispute. In that setting, the sentencing court must resolve such disputes.
Presentence Report -- Use / Challenge to Factual Accuracy
State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
The use of a PSI is a matter within the court's discretion. The court has discretion to order a PSI and to determine the extent to which it will rely upon the information in the PSI. State v. Skaff, 152 Wis.2d 48, 52 n.3, 447 N.W.2d 84, 86 n.3 (Ct. App. 1989). The determination of relevant facts and the weight given to those facts in the sentencing process are matters uniquely within the discretion of the trial court. State v. Evers, 139 Wis.2d 424, 452, 407 N.W.2d 256, 268 (1987). In the event the defendant wishes to contest any of the factual matters set forth in a PSI, the defendant is entitled to an evidentiary hearing where evidence regarding the issue in controversy may be presented by the State or the defendant. State v. Perez, 170 Wis.2d 130, 140-41, 487 N.W.2d 630, 634 (Ct. App. 1992). In the absence of any claimed factual error, the information presented by a PSI may be considered by the court in its sentencing determination. State v. Peters, 192 Wis.2d 674, 696, 534 N.W.2d 867, 876 (Ct. App. 1995).
Presentence Report -- Bias, Demonstration of -- Defendant's Homosexuality
State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
Suchocki claims that his due process right to a fair sentencing hearing was violated. Accordingly, he must demonstrate both bias in the PSI writer and that the sentencing process was prejudiced by such bias. See State v. Coulthard, 171 Wis.2d 573, 591, 492 N.W.2d 329, 337 (Ct. App. 1992); see also State v. Littrup, 164 Wis.2d 120, 127, 473 N.W.2d 164, 168 (Ct. App. 1991). Suchocki has failed to show bias in the PSI writer or that the alleged bias influenced the sentencing process.

The trial court concluded that there was no evidence of any actual bias by Neveau toward Suchocki because of his sexual preference. Neveau expressly denied any bias towards homosexuals. The court noted that Suchocki did not contestthe accuracy of the objective information contained in the report. Also, the court found the subjective portions of the report reasonable, consistent with Suchocki's background and the nature of the offenses for which he was convicted, and uninfluenced by his sexual preference. The evidence of record is sufficient to support the trial court's findings. The court may consider the reasonableness and accuracy of the PSI in question in determining whether the writer was biased. See Littrup, 164 Wis.2d at 132-34, 473 N.W.2d at 168-69; see also Coulthard, 171 Wis.2d at 591, 492 N.W.2d 329 at 337.

Even if we were to conclude the PSI writer was biased against Suchocki based upon his homosexuality, the sentencing process was not influenced by that bias. The trial court found Suchocki's sexual preference to be irrelevant to the sentencing process and specifically declared:

I certainly find that any reference to Mr. Suchocki's sexual orientation has nothing to do with these proceedings. That is not part of this and need not be considered, and I am not considering that.
Further, the court's sentence was much closer to the thirty days of confinement recommended in the PSI submitted by the defense than to the eight-month recommendation of Neveau. This fact belies any argument that the PSI writer's bias toward Suchocki's sexual orientation influenced the sentencing process.
Presentence Report -- Role in Sentencing -- In General
State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
Our supreme court has acknowledged the importance of the PSI to the sentencing process. See State v. McQuay, 154 Wis.2d 116, 130-31, 452 N.W.2d 377, 383 (1990). The integrity of the sentencing process demands that the report be accurate, reliable and above all, objective. See Perez, 170 Wis.2d at 140-41, 487 N.W.2d at 633-34. The Division of Corrections does not function as an agent of either the State or the defense in fulfilling its role as an agent of the trial court in gathering information relating to a specific defendant. Id. at 140-41, 487 N.W.2d at 634. Because of the requirement that the report be objective, it is of vital importance that the author of the report be neutral and independent from either the prosecutionor the defense. McQuay, 154 Wis.2d at 130-31, 452 N.W.2d at 383; Perez, 170 Wis.2d at 140, 487 N.W.2d at 634.
Presentence Report -- Conflict of Interest -- Author Married to Defendant's Prosecutor -- Showing Actual Bias not Required -- Remedy (Strike PSI) / Harm (Must Show Unfair Influence over Sentencing Process)
State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
Requiring any defendant to demonstrate that the marital relationship actually influenced the writer's impressions and recommendations would present an insurmountable hurdle to any defendant attempting to challenge a PSI. The reasons for an agent's impression may operate at a subjective level of which the report's author is unaware. The information, attitude and impressions received from an author's spouse may influence the author's impressions at either a conscious or subconscious level. Because the author's impressions could be subconsciously influenced, the writer may not even be aware of the relationship's influence. It would be difficult, if not impossible, for a defendant to challenge a PSI when the writer is not even conscious of the influence the marital relationship had on the preparation of the PSI. Further, the marital relationship draws the PSI's objectivity into question and, at the least, raises serious questions as to the fairness of the sentencing process to the defendant.

Because forcing a defendant to demonstrate actual bias in the writer from a relationship between the prosecutor and the presentence writer would be imposing an impossible burden on the defendant, we conclude that bias in the writer will be implied as a matter of law by the existence of the marital relationship. We, therefore, conclude that the marital relationship is sufficient in itself to draw into question the objectivity of the PSI without a demonstration of actual bias by the report's author. As a result the trial court erred in not striking the PSI.

...

Suchocki, however, still must show that this report prejudiced the sentencing process. Due process entitles the defendant to a fair sentencing process. Skaff, 152 Wis.2d at 55, 447 N.W.2d at 87. The process is not fair if the sentencing court relied upon a PSI from a biased writer. We conclude, however, that Suchocki's sentencing process was not unfairly influenced by the presentence report. Suchocki, therefore, was not prejudiced by the trial court's refusal to strike the presentence report. We reach this conclusion for several reasons.

First, the ultimate sentence imposed by the court closely paralleled the recommendations of the alternate PSI submitted by the defense. ...

In addition, the court expressly relied on Suchocki's uncontroverted conduct rather than on recommendations contained in the PSI reports in imposing sentence. ...

An even more compelling reason for concluding that the sentencing process was not prejudiced by virtue of the court's refusal to strike this PSI was the court's clear commitment to a sentencing process sufficiently removed from any influence by the tainted PSI. We note that the trial court delayed the sentencing hearings for a sufficient period of time to permit the defense to prepare its own PSI. ...

Note: Suchocki explicitly holds that "the trial court erred in not striking the PSI." But this issue was raised as part of the sentencing process. When the issue of a PSI's fairness is raised well after the fact, different rules apply; there is authority for the idea that the remedy in such an instance is not to have the circuit court strike the PSI, but to seek relief through the inmate complaint system, with review by certiorari. State v. Bush, 185 Wis. 2d 716, 519 N.W.2d 645 (Ct. App. 1994).
Presentence Report -- Postsentencing Access: Court Authorization Required
State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419, 538 N.W.2d 608 (Ct. App. 1995)
Issue/Holding:
Section 972.15(2), Stats., provides, "When a presentence investigation report has been received the judge shall disclose the contents of the report to the defendant's attorney ... prior to sentencing." (Emphasis added.) Thus, before sentencing, a defendant has an absolute right to obtain the presentence report. In such a setting, the defendant need not first obtain the authorization of the circuit court. However, after sentencing, the presentence report "shall be confidential and shall not be made available to any person except upon specific authorization of the court." Section 972.15(4) (emphasis added).

RESTITUTION

Restitution -- Ability to Pay

Restitution – Ability to Pay not Limited by Length of Sentence or Probation
State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue: Whether the holding of State v. Mark M. Loutsch, 2003 WI App 16, ¶25, “that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence,” is valid.
Holding:
¶2        On the question involving restitution ordered during a sentence or probation term, we hold that the statute, when read as a whole, clearly permits a circuit court to order full restitution so long as it properly considers the defendant's ability to pay in setting the total restitution and, where applicable, in setting the amount that must be paid during any probation, parole, or extended supervision. The statute gives no indication that that power is curtailed when probation is involved. In fact, it is significant that in providing for converting unpaid restitution to civil judgments, the legislature, it seems clear, recognized that there would be circumstances where all the necessary restitution amounts often would not and could not be paid before the completion of the sentence or probationary period.

¶3        We therefore answer the certification from the court of appeals by holding that when a court has considered the defendant's ability to pay in setting restitution, the length of the term of probation or of the sentence does not have any limiting effect on the total amount of restitution that may be ordered. Here the circuit court considered the defendant's ability to pay in ordering restitution, as the statute requires, and because the circuit court did not err in considering all the evidence presented at the restitution hearing or in awarding restitution to the victims in accord with the statute, we affirm the circuit court's order.

¶5        … Loutsch is incorrect when it says the defendant's ability to pay during the sentence is what the statute requires the court to consider. [7] The portion of Loutsch that has been interpreted as limiting restitution in that manner is overruled.

Fernandez’ argument that “where probation is ordered, the statute caps restitution at the amount that the defendant has the ability to pay within the period of probation” is, the court concedes, supported by statutory text, ¶¶27-29. Alas, “such technical or superficial reading of the statute” can't stand up to the court's “careful reading,” ¶30.

Now for a bit of a tangent, the following little nugget:

¶46      The fact that restitution is provided “in addition to any other penalty authorized by law” (Wis. Stat. § 973.20(1r)) lends support to the view that restitution was viewed by the legislature as a distinct penalty and suggests that in the absence of any indication in the statute that restitution is intended to limit the sentence or the sentence is intended to limit restitution, we should not infer such limitations.
Well. Recall that some years back, the court of appeals’ reading of that provision led to rejection, as “too simplistic,” the idea that this “penalty” is “potential punishment”—thus, exposure to restitution need not be made part of a guilty plea colloquy, State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995). Granted, we are now a bit afield from the immediate question in Fernandez, but only in a technical or superficial sense. As the court’s own stark reference to the “distinct penalty” that is restitution indicates, the rationale of Dugan is increasingly indefensible. Keep in mind, too, the obvious: you give up your right to a jury trial on damages when a restitution order is entered, notwithstanding Wis. Const. Art. I § 5 (“The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy[.]”). Shouldn’t a guilty plea defendant at least know that this non-punishment penalty will be a consequence of the plea? And so it comes to pass that a dishwasher making $5.15 per hour must pay $68k restitution during a 2-year term of probation—but he wasn’t entitled to know about this consequence of his plea before entering it. Careful reading led to overturn of Loutsch; why not the same treatment for Dugan?
Restitution – Ability to Pay as Factor ( Dicta)
State v. Anthony D., 2006 WI App 218
For Anthony D.: Susan E. Alesia, SPD, Madison Appellate
Dicta: ¶7 n. 2:
We note that the language of the juvenile restitution statute differs from that of the criminal restitution statute, Wis. Stat. § 973.20. The criminal statute does not require the court to make a finding that the defendant can pay the restitution amount, though it does direct the court to avoid creating an “undue hardship” for the defendant, § 973.20(1r), and to consider the defendant’s earning capacity and the financial resources of both the defendant and the defendant’s dependents, § 973.20(13)(a). This court has in one case interpreted the latter provision to mean that a court may not order restitution in a criminal case that exceeds a defendant’s ability to pay within the term of the sentence. State v. Loutsch, 2003 WI App 16, ¶25, 259 Wis. 2d 901, 656 N.W.2d 781. We are unsure, however, whether this remains the law in view of Huml v. Vlazny, 2006 WI 87, __Wis. 2d__, 716 N.W.2d 807. Though Huml did not squarely address the question, our supreme court did pass over without comment a total restitution figure that wildly exceeded the total amount of payments the defendant was ordered to make. Id., ¶7 (total restitution set at $140,000; monthly payments of $425 over three years of probation would total $15,300). The Huml court also stated that the primary purpose of restitution is to compensate victims and make them whole. Id., ¶20.
Restitution -- Ability to Pay -- Determination May not Be Deferred
State v. Mark M. Loutsch, 2003 WI App 16, PFR filed 1/17/03; X-PFR filed 1/31/03
For Loutsch: Charles B. Vetzner
Issue/Holding:
¶25. Read together, these sections plainly contemplate that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence-in this case, during the term of imprisonment and subsequent extended supervision and probation. These sections do not permit a court to defer consideration of the defendant's ability to pay when evidence of the defendant's ability to pay is presented. The reference to "present and future earning ability of the defendant," Wis. Stat. § 973.20(13)(a)3, plainly contemplates that the court will be making a prediction of what a defendant will be able to pay in the future.
State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995) distinguished, on the ground that Dugan didn't assert inability to pay and therefore waived that argument. ¶27. Fines may be treated differently, see State v. Milashoski, 163 Wis.2d 72, 89, 471 N.W.2d 42 (1991) (court can set fine payable upon release from prison, though amount and/or payment schedule subject to on-going review). If so, it might be because fines are punitive in nature, but in any event there's no statutory language identical to that involved in this case.

UPDATE: The subsequently-decided State v. Bruce J. Kuechler, 2003 WI App 245, ¶¶14-15, entitles the defendant to an ability-to-pay determination at sentencing with respect to fines. However, in dicta, State v. Anthony D., 2006 WI App 218, ¶7 n. 2, the court of appeals expressed doubt concerning continued viability of Loutsch.


Restitution -- Damages

Damages -- Causation

Restitution -- Damages -- Causation -- Lost Profits
State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate
Issue/Holding1: Lost profits are “special damages,” and therefore subject to a restitution order, because the underlying causal criminal conduct could give rise to a civil action based on the torts of conversion and interference with prospective contractual relationships, ¶¶16-17.
Issue/Holding2: Because at least a minimal amount of speculation inheres to such a claim, “when the claim for restitution for loss of profits is based on a prospective contractual relationship, the victim must prove with reasonable certainty that the prospective contractual relationship would have accrued absent the defendant’s wrongful conduct. … However, in determining whether the proof of lost profits meets the requirement of reasonable certainty, we may give due weight to the fact that it was the defendant’s own wrongful conduct that created the speculation or uncertainty in the first instance,” ¶20. That showing was made here, where the items stolen from a computer business aborted a software demonstration to a prospective buyer that would have occurred five days and would have been the 4th step in a 5-step process, ¶21. (String-cited authorities, largely involving claims which failed to identify specific potential customers, distinguished, ¶¶22-23.)
Issue/Holding3: The amount of restitution for lost profits “should be addressed on a case-by-case basis and they are recoverable where a claimant can present credible comparable evidence or business history and business experience sufficient to allow a fact finder to reasonably ascertain the amount of future lost profits,” ¶26. A sufficient showing was made here, where the company owner testified to the business’s past experiences and methods of estimating expected profit, ¶¶27-29.
The restitution statute, § 973.20, was originally based on a federal counterpart, and at one time we took instruction from federal cases. Not so much now, if at all, as our run-away restitution train keeps barreling down the tracks. With that in mind, here’s a nonetheless interesting 7th Circuit analysis (dealing with restitution for audit expenses following business fraud), U.S. v. Scott, 405 F.3d 615 (7th Cir 2005) (emph. supplied):
This measure of relief is less generous than common law damages, since it does not extend to consequences beyond the diminution of the value of the property stolen or damaged … —consequences that could easily exceed that diminution. (Suppose the damage to the property foreseeably precipitated the owner into bankruptcy.) This distinction is consistent with the historic distinction between restitution and damages, the former originally referring to the restoration of something that the defendant had taken from the plaintiff, … including a profit. … The audit expense, though a loss to Scott’s employers, was not a gain to him. But it was a form of damage to the employers’ property. Suppose money was stolen from a bank and eventually returned, but the bank incurred a bookkeeping cost in determining whether the entire amount stolen had been returned. That cost would be a diminution in the value of the bank’s property, caused by the theft, and would therefore be a proper item for restitution. ... This case is no different.

Focusing on the difference between the loss to the victim and the damage to the victim’s property creates a more precise line between criminal restitution and common law damages than the more common distinction suggested in the cases between “direct” and “consequential” damages. .... The line between criminal restitution and common law damages is important to maintain. Not only is the language of the Mandatory Victims Restitution Act dissimilar to that of the Uniform Commercial Code, and “restitution” itself no synonym for common law damages. In addition, to blur the line would create a potential issue under the Seventh Amendment because the amount of criminal restitution is determined by the judge, whereas a suit for damages is a suit at law within the amendment’s meaning. ... And it would complicate criminal sentencing unduly—and unnecessarily; the rare crime victim who has a real shot at collecting common law damages (rare because few convicted criminal defendants are affluent) can bring a tort suit. ….

Even under that analysis, the federal scheme supports restitution for lost profits. But at least there is an analysis. (Doesn’t hurt, by any means, that the author is Judge Posner.) Although the 7th amendment doesn’t apply to the states, the language of Art. I § 5 is similarly absolutist: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy[.]” This provision was explicated most recently in Dane County v. Kenneth R. McGrew, 2005 WI 130.

What about an Apprendi-type argument with respect to restitution? See US v. Mueffelman, No. 01-CR-10387-NG (D. Mass. Nov. 14, 2005) ("restitution is punitive, and subject to the Sixth Amendment's protections"). However, this is very much the minority view, see, e.g., U.S. v. Leahy, 3rd Cir No. 03-4490, 2/15/06 (though restitution is criminal penalty but because there is no "statutory maximum" Booker-Apprendi isn't violated; strong dissent); U.S. v. Williams, 11th Cir No. 04-15117, 4/13/06 (same: "the MVRA does not set an upper limit on the amount of restitution. ... Therefore, a restitution order cannot be said to exceed the maximum provided by the penalty statutes, and it cannot violate the rule announced in Booker").

Restitution -- Damages -- Causation
State v. Oscar A. Rash, 2003 WI App 32, PFR filed 2/25/03
For Rash: Peter Koneazny, Diana Felsmann, SPD, Milwaukee Appellate
On-Line Brief: here
Issue: Whether the restitution order for damage to the victim’s car was supported by sufficient causation, where the defendant abducted the victim for 20-30 minutes, during which time the unattended and unlocked car was broken into by unknown actor(s).
Holding:
¶6. "Before restitution can be ordered" under Wis. Stat. § 973.20(2) there must be "a causal nexus" between the "crime considered at sentencing" and the damage. Canady, 2000 WI App 87 at ¶9, 234 Wis. 2d at 267, 610 N.W.2d at 149. "In proving causation, a victim must show that the defendant's criminal activity was a ‘substantial factor' in causing damage. The defendant's actions must be the 'precipitating cause of the injury' and the harm must have resulted from 'the natural consequence[s] of the actions.'" Id., 2000 WI App 87 at ¶9, 234 Wis. 2d at 267, 610 N.W.2d at 150 (quoted sources omitted).

¶7. Canady upheld a restitution order for damage caused by a police officer attempting to take Canady, who was charged with both burglary and resisting arrest, into custody. Id., 2000 WI App 87 at ¶¶11-12, 234 Wis. 2d at 268-269, 610 N.W.2d at 150. A police officer arresting Canady thought that a pry bar in Canady's jacket could be used as a weapon and threw it out of Canady's reach; the pry bar struck and broke a glass door-pane. Id., 2000 WI App 87 at ¶2, 11, 234 Wis. 2d at 265, 268, 610 N.W.2d at 148-149, 150. Upholding the trial court's order that Canady pay for the broken window, Canady noted that the requisite "'precipitating cause'" did not mean that the defendant must have caused directly or even "intended or expected" the damage encompassed by the restitution order; it is sufficient if the defendant's "actions were a substantial factor" in causing the damage in a "but for" sense. Id., 2000 WI App 87 at ¶¶9, 12, 234 Wis. 2d at 267, 268, 610 N.W.2d at 150 (quoted source omitted). Thus, "precipitating cause" merely means that the defendant's criminal act set into motion events that resulted in the damage or injury. "The phrase 'substantial factor' denotes that the defendant's conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense." Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 458-459, 267 N.W.2d 652, 654 (1978). For example, in the civil-law context, the first tortfeasor is responsible for subsequent harm caused by those rendering aid to the injured plaintiff, irrespective of whether those rendering aid were negligent, Butzow v. Wausau Mem'l Hosp., 51 Wis. 2d 281, 286-287, 187 N.W.2d 349, 351-352 (1971), or by subsequent tortfeasors whose contribution to the plaintiff's ultimate damages or injuries was a "foreseeable consequence" of the original tortfeasor's negligence, Johnson v. Heintz, 61 Wis. 2d 585, 600-602, 213 N.W.2d 85, 93-94 (1973).

¶8. The word "crime" as used in Wis. Stat. § 973.20(2) “‘encompass[es] all facts and reasonable inferences concerning the defendant's activity related to the ‘crime’ for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was convicted.'" State v. Madlock, 230 Wis. 2d 324, 333, 602 N.W.2d 104, 109 (Ct. App. 1999) (quoted source omitted, emphasis in quoted source). Thus, in ordering restitution, the sentencing court must "take[] a defendant's entire course of conduct into consideration" and not "break down the defendant's conduct into its constituent parts and ascertain whether one or more parts were a cause of the victim's damages." Ibid. (quoted source omitted). Additionally, a criminal cannot escape responsibility for restitution simply because he or she was not aware of the damage. Id., 230 Wis. 2d at 336-337, 602 N.W.2d at 110; cf. Butzow, 51 Wis. 2d at 287, 187 N.W.2d at 352 ("forseeability" is element of negligence not of "causation"). Given the legislative concern that victims be made whole insofar as that is possible, a victim's burden of proof to show causation is certainly not higher than would be a plaintiff's comparable burden in a civil case, and, although we do not have to decide it here, may be substantially lower. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) ("cases should be decided on the narrowest possible ground"). Here, it was reasonable for the postconviction court to conclude that but for Rash's crime, Ivory's car would not have been taken and damaged and that Ivory's property in the car would not have been stolen.

Here’s the long and short of it: Commit a crime, and you’re responsible (in restitution) for anything that subsequently happens. Though not discussed by the court, this broad view of causation undoubtedly stems from the idea that “Wisconsin does not follow the majority view in Palsgraf v. Long Island Railroad Co., 248 NY 339, 162 N.E. 99, 99-101 (NY 1928), under which the existence of a duty of care depends upon whether injury to the particular victim was foreseeable.” Gritzner v. Michael R., 2000 WI 68, ¶20 n. 3, 235 Wis.2d 781, 611 N.W.2d 906. For a learned discussion, see Judge Dykman’s dissent in Hicks v. Nunnery, 2002 WI App 87, ¶¶77 et seq. But it's an equal truism that causation isn't limitless; remoteness of harm is always a potential causation-inhibitor. The question, in an inquiry simply elided by the court, is whether on policy grounds the harm is too remote from the act to tolerate ascribing causal responsibility to that actor. Foreseeability may or may not be an ingredient of this inquiry; but surely the intervention of an independent criminal agent wholly unconnected to the defendant raises a severe question of remoteness. And if nothing else, the court's failure to discuss remoteness-of-harm may allow such an argument to be raised in an appropriate factual setting.
Restitution -- Damages -- Causation -- Securities Fraud
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding: Ross was convicted of a pattern of racketeering involving securities fraud contrary to Wis. Stat. §§ 551.41(2) and 946.82(2), (3), (4) and 946.83 (WOCCA). This pattern of racketeering, based in fraudulent activities occurring in Wisconsin and contrary to the securities law, also affected investors in other parts of the country. By claiming at various times that the securities he was selling were registered in Wisconsin (which implied disclosure) when they were not, and then continuing to sell these securities after a stop order had been issued, Ross aided in creating victims in other states. Thus, it is clear that the fraudulent activities perpetrated in Wisconsin were a substantial factor in attracting investors in other states, which provides the proper nexus between the crimes and the losses to out- of-state victims. ¶¶55-57.
Restitution -- Causation -- "Natural and Probable Consequence" of Crime -- Damage Caused by Police While Defendant Resisted Arrest
State v. Freeman Canady, 2000 WI App 87, 234 Wis. 2d 261, 610 N.W.2d 147
For Canady: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a defendant, convicted of resisting arrest, can be ordered to pay restitution for damage caused by a police officer in the course of subduing him.
Holding: Because the damage was a natural consequence of the defendant's resisting, the defendant was a substantial factor in causing that damage and can be required to make restitution for it.
Analysis: Canady pleaded guilty to burglary-related offenses, including resisting arrest at the scene of an apartment building. He had a pry bar in his jacket which an officer, in the course of subduing him, took and threw to prevent its use as a weapon; it broke a door pane, requiring that the door be replaced. The trial court ordered restitution for the door. The court of appeals upholds the order. Restitution is meant to compensate the victim, and, § 973.20 being construed broadly to accomplish that end, restitution is the rule not the exception. ¶8. Still, a causal nexus must be shown between the "crime considered at sentencing," § 973.20(2), and the disputed damage. Causation requires that the defendant's criminal activity be a substantial factor in causing the damage - i.e., harm must have been a natural consequence of the defendant's actions.¶9. Canady was a substantial factor in the damage, because but for his resisting (which included reaching for the pry bar), there would have been no damage. ¶12. Though the holding is clear enough on the immediate facts, its truncated discussion leaves some question as to its reach. Canady was convicted of resisting, so his potential restitution liability for the broken door is indisputable (§§ 973.20(1g)&(1r): court shall order restitution for any "crime considered at sentencing," defined as "any crime for which the defendant was convicted and any read-in crime"). And in any event, the damage occurred at the scene of the burglary, and would probably be considered at least factually integral to that crime (same way that flight from a scene is considered part of a theft, State v. Grady, 93 Wis.2d 1, 286 N.W.2d 607 (Ct. App. 1979)); more importantly, the damage was caused to the burglary victim's property. The court nonetheless seems to suggest that restitution is barely, if at all, delimited by the charge. ¶10 ("crime considered at sentencing" broadly defined, to encompass defendant's activity related to the crime, not just acts supporting the crime's elements; defendant's "entire course of conduct" to be considered). However, prior precedent establishes at least some formal limit on eligibility for restitution, namely that "restitution to a party with no relationship on the record to the crime of conviction ... or to read-in crimes is improper." State v. Mattes, 175 Wis.2d 572, 581, 499 N.W.2d 711 (Ct. App. 1993). There's no reason to think that this case disturbs that precedent.
Go To Brief
Restitution -- Causation -- Nexus Must be Shown, Otherwise Defendant Entitled to Hearing
State v. Derrick L. Madlock, 230 Wis.2d 324, 602 N.W.2d 104 (Ct. App. 1999).
For Madlock: Margaret A. Maroney, SPD, Madison Appellate.
Issue: Whether restitution may be ordered without a showing of causation or actual damages.
Holding: The record must show at least a minimal nexus between the defendant's criminal conduct and the victim's claimed damages, or the defendant is entitled to an evidentiary hearing.
Analysis: Madlock was convicted of operating a motor vehicle without owner's consent. Over objection, the trial court ordered restitution, even though the record showed neither that the car was damaged nor that Madlock had caused any damage that might have been incurred. The state first argues that he waived the restitution issue by objecting only to the restitution amount, not the existence of or his causal connection to damage. The court of appeals rejects the state's argument as "too technical in the real world of contemporaneous objections"; the defense was taken by surprise when the trial court ordered restitution, the state not having requested it. The contemporaneous objection could, in any event, be taken to raise the current issue. (Note: The opinion doesn't reject the idea that a contemporaneous objection to restitution is necessary; to the contrary, it seems to assume that it is. See also State v. Schmaling, 198 Wis. 2d 756, 762, 543 N.W.2d 555 (Ct. App. 1995).) On the merits, the court marshals various principles -- restitution is "victim oriented," and broadly construed in favor of recovery; nexus between crime may be required, but only in a very minimal way; the defendant's connection to the crime similarly need be minimal -- but the record still comes up short. Restitution isn't ipso facto proper, contrary to the trial court's apparent understanding. The record fails to show either actual damage to the car, or Madlock's own responsibility for any damage (his offense was driving the car several days after it was stolen). An evidentiary hearing is necessary to determine these matters.
Go To Brief
Restitution -- Nexus -- Generally
State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate
Issue/Holding:
¶13      Second, before a trial court may order restitution “there must be a showing that the defendant’s criminal activity was a substantial factor in causing” pecuniary injury to the victim in a “but for” sense. Longmire, 272 Wis. 2d 759, ¶13;State v. Rash, 2003 WI App 32, ¶7, 260 Wis. 2d 369, 659 N.W.2d 189. “The phrase ‘substantial factor’ denotes that the defendant’s conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.” Rash, 260 Wis. 2d 369, ¶7 (citation omitted).  This means that the defendant’s actions “must be the ‘precipitating cause of the injury’ and the harm must have resulted from ‘the natural consequence[s] of the actions.’” State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147 (citation omitted). Put another way, a causal link for restitution purposes is established when “the defendant’s criminal act set into motion events that resulted in the damage or injury.” Longmire, 272 Wis. 2d 759, ¶13. A defendant “cannot escape responsibility for restitution simply because his or her conduct did not directly cause the damage.”  State v. Madlock, 230 Wis. 2d 324, 336, 602 N.W.2d 104 (Ct. App. 1999).

Damages -- Special

Restitution -- Special Damages -- Generally
State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate
Issue/Holding:
¶12      First, restitution is limited to “special damages … which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.” Wis. Stat. § 973.20(5)(a). The term “special damages” as used in the criminal restitution context means any readily ascertainable pecuniary expenditure paid out because of the crime. Longmire, 272 Wis. 2d 759, ¶14. Section 973.20(5)(a) contemplates that restitution ordered in a criminal case will generally render actual civil litigation unnecessary. Longmire, 272 Wis. 2d 759, ¶32. Thus, the ultimate question in deciding whether an item of restitution is “special damages” within the meaning of the statute is whether the item is a readily ascertainable pecuniary expenditure attributable to the defendant’s criminal conduct that could be recovered in any type of civil action, such as conversion or breach of contract. See id., ¶¶15, 26; Loutsch, 259 Wis. 2d 901, ¶12.
Restitution – Special Damages -- Attorney’s Fees of Victims to Enforce Contract in Theft by Contractor Case
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether attorney fees, incurred by the victims in seeking damages under the contract underlying this theft by contractor case, are subject to restitution.
Holding:
¶29. Longmire contends the trial court erred because the "American Rule" requires litigants in a civil action to bear their own litigation costs, and thus the rule precludes a recovery of attorney fees as "special damages" under Wis. Stat. § 973.20(5)(a). The State responds that Wis. Stat. § 100.20(5) provides an exception to the "American Rule" applicable to this case because it would allow the homeowners to recover "a reasonable attorney's fee" in a civil suit against Longmire for the Administrative Code violations that underlay the two read-in misdemeanors. Although we agree that the homeowners might be able to recover certain attorney fees in such a suit, we also agree with Longmire that the fees should not have been a part of the restitution order for amounts authorized under § 973.20(5)(a).8

¶30. … Because the statutory language plainly distinguishes between a plaintiff's "pecuniary loss" constituting "damages" and attorney fees a plaintiff may also recover, we conclude that the legislature did not intend that costs and fees were subsumed within the plaintiff's "damages."

¶32. Finally, we observe that, in authorizing a sentencing court to order a criminal defendant to pay restitution to a victim for "special damages ... which could be recovered in a civil action against the defendant," Wis. Stat. § 973.20(5)(a) (emphasis added), the statute plainly contemplates that restitution ordered in a criminal case will generally render actual civil litigation unnecessary. We cannot conclude that the legislature intended to include in "special damages" attorney fees for pursuing arguably unnecessary litigation.9

Restitution – Special Damages -- Expenditures by Victim to Correct Shoddy Work, Theft by Contractor Case
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether expenditures by victims to correct shoddy work done by defendant in theft by contractor case may be subject to restitution.
Holding:
¶23. We conclude that these costs, incurred by the homeowners and admittedly arising out of their dealings with Longmire, are not recoverable as a separate item of restitution under Wis. Stat. § 973.20(5)(a). Even if the work-correction expenditures could have been recovered in a civil action against Longmire for breach of contract, they would not constitute "special damages ... which could be recovered in a civil action against [him] for his ... conduct in the commission of a crime considered at sentencing." Section 973.20(5)(a) (emphasis added).

¶24. We have no quarrel with the State's contention that a criminal defendant can be required to pay restitution for "special damages," even if not directly caused by the criminal conduct, so long as some "causal nexus" is established between the crimes considered at sentencing and the damage for which restitution is sought. See, e.g., State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147. However, the $3,100 allowed in the restitution order for additional construction costs was not attributable to the fact that Longmire converted the lion's share of the $30,000 deposit he was given, or that he failed to return unexpended portions of the deposit after the same was demanded, or that he failed to notify the homeowners of a delay in completion of the contract. Rather, the "precipitating cause," id., for these expenditures was construction work, shoddily performed, but legally procured by Longmire in furtherance of his contractual obligations.

¶26. … The poor quality of the work actually performed under the contract, however, was purely a civil wrong and the criminal restitution statute cannot be enlisted to remedy it.

Another way of looking at this – though the court didn’t put it in exactly these terms – is that the shoddy work was an intervening circumstance that severed any connection between the crime and the injurious result; no causation, in a word, which is essentially what the court said.
Restitution - Special Damages - "Loss of Use" - Rental Fees
State v. Joseph A. Kayon, 2002 WI App 178
For Kayon: Ronald J. Sonderhouse
Issue/Holding: Both the replacement cost of a television stolen by the defendant, and rental fees of a television while the case was pending, may be recovered in restitution. The rental fees represent "loss of use" damage that could be claimed in a civil action and therefore qualify as a special damage.
(T)he standard to be applied to such recovery is that of reasonableness under all the circumstances of the particular case. ... (D)amages for 'loss of use' should reflect (1) a time period reasonably required for replacement, including a reasonable time to determine whether the property is in fact repairable; and (2) an amount equal to that which was actually expended.
¶¶7-9. Because the trial court didn't undertake this analysis, remand is ordered for a hearing on reasonableness of rental fees.
Restitution – Damages – School District: Employees’ “Lost Productivity” Due to Bomb Scare Evacuation
State v. Derick G. Vanbeek, 2009 WI App 37, PFR filed 3/13/09
For Vanbeek: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: On conviction for making a false bomb scare, § 947.015, Vanbeek is liable in restitution to the school district for salaries and benefits paid to teachers and staff during the resulting 4-hour evacuation, because the school district lost the value of these employee’s services during that time.
¶14      Vanbeek contends that even if the school district is a victim it did not suffer a pecuniary loss because “[t]he school district did not pay out any additional sum in salary and benefits than was already required under its contracts nor did the school district pay for an additional day of school.”  However, the rationale underlying Vanbeek’s argument was previously rejected by this court in State v. Rouse, 2002 WI App 107, 254 Wis. 2d 761, 647 N.W.2d 286.

[While the bank’s employees were investigating Rouse’s the bank lost the value of their services. “The deprivation of an employee's productivity is a loss in itself that may or may not have an end result of lost profits. Requiring such a showing could deprive entities that do not work for profit any compensation for their lost resources.”]

¶17      We see no reason to treat the school district’s loss differently. During the four and one-half hours that the students and staff were evacuated from school district property as a result of Vanbeek’s bomb scare, the school district paid its employees, but received no services from them. Under Rouse and Wis. Stat. § 973.20(5)(a), it is entitled to restitution for that loss of employee productivity.

True, Rouse did mention “entities that do not work for profit,” but that reference plainly was dicta; the question there was whether a (for-profit) bank was entitled to restitution for its employees’ lost productivity. Hard to see how the school district was harmed financially in this instance. The students were deprived of instruction. Local taxpayers suffered a loss, in that 4 hours’ worth of their property tax payments went for naught. But the district itself? Lazy reliance on dicta in Rouse may settle the issue as a practical matter but it’s hardly convincing.
Restitution - Special Damages - Time Spent by Victim's Salaried Employee Investigating Offense
State v. William A. Rouse, 2002 WI App 107, PFR filed 5/8/02
For Rouse: Morris D. Berman
Issue/Holding: Time spent by a bank's salaried employees investigating the crime (forgery) is subject to restitution because,
while the bank's employees were investigating Rouse's forgeries, they were prevented from doing other work for the bank, and thus the bank lost all value of their services during that time. We decline to require that victims demonstrate lost profits as this would be overly burdensome and would fail to adequately recognize the value inherent in an employee's services. The deprivation of an employee's productivity is a loss in itself that may or may not have an end result of lost profits. Requiring such a showing could deprive entities that do not work for profit any compensation for their lost resources. Further, it is reasonable to compensate an employer for this loss with the amount that it paid the employees during the time they were diverted.
¶15. (State v. Holmgren, 229 Wis. 2d 358, 599 N.W.2d 876 (Ct. App. 1999) extended.)
(Note: The court acknowledges, but doesn't reach, a potential conflict in case law respecting authority to order, as a condition of probation, restitution not otherwise permitted under § 973.20. ¶16 n. 5.)
Restitution -- Special Damages -- Definitions -- Audit, etc.
State v. Nils V. Holmgren, 229 Wis.2d 358, 599 N.W.2d 876 (Ct. App. 1999).
For Holmgren: William E. Appel.
Holding: Holmgren's theft, related to unauthorized use of company's credit card, gives rise to various restitution issues, all turning on the distinction between special and general damages. (Special damages -- those which do not necessarily arise from the wrongful act "and represent the victim's actual pecuniary losses" -- are permissible; general damages - necessarily occurring and exemplified by pain and suffering - aren't.) Restitution for the following damages are held to be special, and therefore not within the sentencing court's restitution authority: Unearned vacation time and benefits isn't supported, largely because Holmgren was salaried and had not set hours; use of a company vehicle during personal trips, because his employment agreement gave him unrestricted personal use of the car; costs associated with hiring his replacement, because these costs were incurred as a result of his resigning, not because of his theft. Restitution is upheld, as special damages, for: costs of an audit to determine the extent of Holmgren's wrongdoing; the costs of the auditor's testimony, given that the auditor appeared at Holmgren's own behest; and another item that no objection was made to.
Authority for restitution for audit expenses under federal statute, see genrally, U.S. v. Scott, 7th Cir No. 04-1053, 4/25/05 -- unremarkable, except that, given Judge Posner's authorship, it contains a concise tutorial on the limits to restitution set by the line between "direct" and "consequential" damages. And, it sounds this note of caution:
In addition, to blur the line would create a potential issue under the Seventh Amendment because the amount of criminal restitution is determined by the judge, whereas a suit for damages is a suit at law within the amendment’s meaning. E.g., Kelly v. Robinson, 479 U.S. 36, 53 n. 14 (1986); Lyndonville Savings Bank & Trust Co. v. Lussier, 211 F.3d 697, 702 (2d Cir. 2000). And it would complicate criminal sentencing unduly—and unnecessarily; the rare crime victim who has a real shot at collecting common law damages (rare because few convicted criminal defendants are affluent) can bring a tort suit. S. Rep. No. 104-179, 104th Cong., 1st Sess. 18 (1995), 1996 U.S.C.C.A.N. 924, 931.
Those limits are not recognized, to be sure, in Wisconsin caselaw (which instead draws the line at "general" damages -- not at all the same thing). Indeed, by allowing restitution for damages under a "causal nexus" theory, Wisconsin law essentially supports consequential damages. Nor does the 7th amendment apply, so as to fix a boundary. But perhaps there is a similar, state constitution argument to be made -- for the most recent discussion of the state right to jury trials, see Dane County v. Kenneth R. McGrew, 2005 WI 130.
Restitution -- Special Damages -- Security System
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Because the trial court could reasonably infer that the victim had lost her sense of security in her home because of the defendant's crime, a sufficient causal connection was established between purchase of a security system and the crime so as to make the expense subject to restitution. ¶21.
Restitution -- Special Damages -- Loss of Sick Leave
State v. Mark M. Loutsch, 2003 WI App 16, PFR filed 1/17/03; X-PFR filed 1/31/03
For Loutsch: Charles B. Vetzner
Issue/Holding:
¶12. The distinction between general and special damages as relevant to Wis. Stat. § 973.20(5)(a) is well established. "General damages" under this statute are those that compensate the victim for damages such as pain and suffering, anguish or humiliation, while "special damages" encompass "`harm of a more material or pecuniary nature.' [Citation omitted.]" State v. Holmgren, 229 Wis. 2d 358, 365, 599 N.W.2d 876 (Ct. App. 1999). The ultimate question in deciding whether an item of restitution is "special damages" within the meaning of the statute is whether it could be recovered as special damages in a civil proceeding. State v. Rouse, 2002 WI App 107, 12, 254 Wis. 2d 761, 768, 647 N.W.2d 286. In deciding whether the loss of Asp's sick leave is a "special damage" within the meaning of § 973.20(5)(a), we bear in mind that the purpose of restitution is to return victims of a crime to the position they were in before the defendant injured them. Holmgren, 229 Wis. 2d at 366. We therefore construe the restitution statute broadly to allow victims to recover their losses resulting from the criminal conduct. Id. ...

¶16. We conclude that determining the monetary value of the sick leave Asp used involves no more speculation, and arguably involves less, than determining the amount of future lost earning capacity. The precise number of hours Asp used as a result of the injury is known, and it is certain that Asp will not have those hours available to him upon retirement to pay for his health insurance premiums. The precise formula by which those 552 hours would have been converted to dollars to pay for health insurance premiums upon retirement is also known. Hourly wage at the time of retirement may be estimated or, as in this case, the current wage may be used: it is reasonable to infer that Asp's hourly wage at retirement will be no lower than his present hourly wage.


Restitution -- Defenses

Restitution -- Defenses -- Civil Settlement Agreement
Huml v. Vlazny, 2006 WI 87, on certification
Issue/Holding:
¶5        We conclude that a civil settlement agreement can have no effect upon a restitution order while the defendant remains on probation, unless the circuit court finds that enforcing the restitution order in addition to the settlement agreement would result in a double recovery for the victim. After a defendant is released from probation, however, and any unpaid restitution under the restitution order is converted to a civil judgment, a settlement agreement between the victim and defendant may——depending upon its terms——preclude the victim from enforcing the judgment. We conclude that the global settlement agreement that Huml entered into with Vlazny precludes her from enforcing the judgment converted from the restitution order.
Of general interest:
¶22      An overview of Wis. Stat. §§ 973.09 and 973.20 reveals that a fundamental policy of these statutes is to make victims whole without allowing them to receive double recoveries. To achieve this result, the statutes afford three opportunities to avoid double recovery. First, a defendant may assert any defense, including accord and satisfaction or setoff, in the sentencing hearing at which the circuit court determines whether to impose restitution. § 973.20(14)(b); Sweat, 208 Wis.  2d at 424. Second, before a circuit court reduces any unpaid restitution to a civil judgment, the probationer may prove that the victim has already recovered damages from him that are the same as the damages covered by the restitution order. § 973.09(3)(b). Third, in a civil action a defendant may prove that restitution payments set off part or all of a civil judgment in favor of the victim. § 973.20(8).
Civil settlement agreement doesn’t fit neatly within any of these three categories, ¶23, so in effect there are now four “opportunities to avoid double recovery.” The court goes on to construe § 973.20(1r) to mean that the judgment for unpaid restitution at the end of probation is a civil judgment, ¶33. The court discusses the leading settlement cases, ¶¶39-41, the overarching idea seeming to be that a settlement agreement between defendant and victim doesn’t bar restitution because “restitution is a remedy that belongs to the State” such that the victim has no independent right to bargain it away, ¶39. [Fine, but then why isn’t restitution in the nature of a penalty, such that a defendant has to be made aware of it before entering a plea?] But those cases “do not address what happens to unpaid restitution upon the completion of probation,” and the court refuses to extend their holdings—that the defendant must prove double recovery before restitution is barred—to a post-probation setting, ¶¶42-44. And, although § 973.20 was modeled on the federal counterpart, the wording of § 973.20(1r) is critically distinguishable from the federal version, so that federal case interpreting the relationship between civil enforcement mechanisms and restitution “are of little, if any, assistance,” ¶46. Is the holding limited to termination of probation? Hard to see how, given that § 973.20(1r) applies equally to parole and extended supervision.
Restitution -- Defenses -- Set-Off (Civil Settlement)
Herr v. Bradley D. DeBraska, 2006 WI App 29
Issue/Holding1: Where the defendant and victim had fully settled a civil claim for defendant’s liability arising out of the crime, but the defendant’s wages were subsequently garnished by the State to satisfy the restitution order in the criminal case, the trial court properly exercised discretion to reopen the civil judgment, to determine whether the civil judgment should be offset against the restitution order, ¶18.
Issue/Holding2:
¶19      Next, we consider whether the trial court’s order offsetting the entire civil judgment was proper. …

¶20       Although there was a motion hearing, there was no testimony taken. The trial court considered only affidavits from counsel, arguments from counsel, and written documents including the stipulations and agreements. The civil settlement agreement did not mention the criminal restitution order, referring only to “all claims between and among the parties to the release,” and did not identify the specific damages included in the $20,000 settlement. Likewise, the stipulation to criminal restitution did not indicate the damage elements that made up the $17,209.88 order.[3] We conclude that the motion hearing did not provide sufficient evidence for the trial court to determine whether the damages covered by the civil judgment were, in whole or in part, the same special damages covered by the criminal restitution order. The record is not sufficiently developed for the trial court to have made the determinations necessary to decide whether to grant the motion to offset, or for us to review the findings and conclusions. Therefore, we remand for a hearing and determination on those issues.[4]

Offset is permissible under § 973.20(8); see also William Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996). However, offset is available only for special, not general, damages awarded in a civil claim and the defendant must prove what portion of the civil judgment represented special damages, State v. Laura Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Ct. App. 1999). As the passage quoted above indicates, there wasn’t sufficient indication as to what extent the civil judgment was based on special damages, and remand is to establish that fact.
Restitution -- Defenses -- Set-Off
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the defendant was entitled to set-off as a defense to restitution for theft by (home improvement) contractor, for work that was paid for by the contractor to a subcontractor. Holding:
¶18. We conclude that the trial court erroneously exercised its discretion by not allowing any offset whatsoever for Longmire's undisputed expenditure of a portion of the deposit money in compliance with his contractual obligations. We also conclude, however, that the extent of the homeowners' benefit from Longmire's expenditure may be considered in determining the amount of offset to be allowed.

¶19. There can be little question that the homeowners in this case could recover as special damages in a civil action that part of the $30,000 they paid to Longmire that he misapplied or converted to his own use. See Topzant v. Koshe, 242 Wis. 585, 588, 9 N.W.2d 136 (1943) (explaining that damages for conversion is the value of items wrongfully taken). Longmire did not convert the entire $30,000, however, because he expended $5,533 of it to commence work pursuant to his contract with the homeowners. We thus conclude that Longmire has met his burden to establish that the $30,000 figure should be reduced or offset for the excavation and concrete work Longmire procured for the homeowners.

...

¶21. Our conclusion that Longmire is entitled to an offset for amounts he expended for work done does not necessarily mean that he is entitled to an offset of $5,533. That amount may have been excessive or unreasonable for the work actually performed. The homeowners claimed, and the trial court found, that, despite Longmire's expenditure of $5,533 on excavation and concrete work, the work was poorly done and the homeowners were required to pay some $3,100 to correct it. Although, for reasons set forth in the next section of this opinion, we conclude that Longmire could not be ordered to pay for these additional expenses as a separate item of restitution, we see no barrier to considering the corrective expenses in determining the amount to be offset against the $30,000 deposit for work performed. We therefore conclude that the trial court's factual finding regarding the homeowner's additional expenses to correct the deficiencies in the excavation and concrete work, correctly applied, operates to reduce the allowable offset from $5,533 to $2,433, thereby crediting Longmire with the amount he expended on contract work less the amounts the homeowners expended to correct that work.

(Separate, related charges of home improvement fraud don’t disqualify the defense, because the underlying conduct [failure to discharge certain duties in a timely way] didn’t cause any pecuniary loss. ¶20.)
Restitution -- Defenses -- Accord & Satisfaction
State v. Laura Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Ct. App. 1999).
For Walters: Todd W. Bennett
Issue/Holding: The COA refuses to acknowledge accord and satisfaction as a restitution defense. Restitution, the court reasons, "is not a claim which a defendant owns, as a civil claim is. It is a remedy that belongs to the State." While a goal is to make the victim whole, liability for restitution is grounded "on the State's penal goals that affect the defendant, such as rehabilitation, punishment and deterrence."
Note: But these avowedly penal goals sound pretty much indistinguishable from any other sentencing disposition. So why isn't a guilty-plea defendant entitled to know this explicitly penal consequence, before entering the plea? Because the COA said so, in State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995), the court stressing that the primary purpose of restitution isn't to punish the defendant, but to compensate the victim, 193 Wis. 2d at 623-24. In sum, for one purpose restitution is compensatory, for another it's penal.
Restitution -- Defenses -- Setoff
State v. Laura Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Ct. App. 1999)
For Walters: Todd W. Bennett
Issue/Holding: Setoff is available to reduce the amount of special damages. The defendant has the burden of proving facts necessary to this defense. Since the victim here suffered general as well as special damages, Walters was therefore required to prove what part if any of a $25,000 insurance settlement went to special damages (given that the victim had also suffered general damages in an indeterminate amount). Because Walters offered no such proof, "the circuit court had no choice but to conclude that none of the payment should be applied against special damages."
Restitution -- Defenses -- Civil Settlement (Setoff)
William Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996)
For Olson: Terry W. Rose
Issue/Holding:
The statutory section governing restitution allows a defendant to reduce civil damages awarded to the crime victim by amounts paid pursuant to a restitution order. See § 973.20(8), Stats. We read this statute to likewise enable a defendant to try to reduce the amount he or she owes because of a restitution award during settlement negotiations on the companion civil case. For such an agreement to be valid, however, the defendant must establish the "validity and amount" of this "setoff" in a hearing before the trial court conducting the civil action. Id. Thestatute places the burden on the defendant to establish that the outstanding restitution order has been included in the calculation of any civil settlement.5

Applying these guidelines to this civil settlement, we conclude that Olson has failed to meet these mandates. The civil settlement was approved by the trial court. However, the court approving the settlement never conducted a hearing to test whether the restitution order was validly "set off." See id. Indeed, the language of the settlement only refers to Kaprelian's civil complaint. It makes no reference to the restitution order. We thus hold that Olson's attempt to "set off" the restitution award failed to meet the requirements within § 973.20(8), Stats.

Restitution -- Defenses -- Contributory Negligence
State v. Chad J. Knoll, 2000 WI App 135, 237 Wis.2d 384, 614 N.W.2d 20
Issue: Whether contributory negligence is a defense to restitution.
Holding: ¶¶16, 17:
Restitution is not a claim that is owned by an individual but a remedy of the State.... To allow a defendant who has already been convicted of a crime to focus on the action of a victim to avoid restitution defeats this purpose because it permits him to evade responsibility for his own actions.... Second, bringing the issue of contributory negligence into a restitution proceeding, which by its nature is informal and not a full-blown civil trial, is inconsistent with the nature of the proceedings.... Therefore, we conclude that Knoll may not raise Foust's contributory negligence as a defense to restitution.

Restitution -- Discovery

Restitution – Hearing - Procedure - Notice, Discovery
State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue/Holding:
¶59      Fernandez additionally argues that the lack of advance written notice of the Dalka and CNR claims violated his due process rights. In response, the State contends that Fernandez's due process rights were protected by the statute, which provides for “an opportunity to be heard, personally or through counsel, to present evidence and to cross-examine witnesses called by other parties.” Wis. Stat. § 973.20(14)(d).

¶60      We agree with the State. The statute leaves it to the court to “conduct the proceeding so as to do substantial justice between the parties according to the rules of substantive law and may waive the rules of practice, procedure, pleading or evidence . . . .” Id. The statute explicitly notes that “[d]iscovery is not available except for good cause shown. . . .” Id. Here, Fernandez was given the opportunity to have counsel challenge the claims presented and to cross-examine the witnesses. Given the aims of the restitution statute——to balance the needs of the victim to recover losses without complicated legal barriers against the needs of the defendant to ascertain the validity of the claims——the legislature clearly elected to give the circuit court a great deal of discretion in conducting a restitution hearing. We should not impose arbitrary deadlines where the legislature has not done so and where the defendant had a full opportunity to challenge the claims.

Restitution - Discovery, § 973.20(14)(d)
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Where restitution was for counseling expenses, Johnson failed to show good cause for discovery of her counseling records. ¶¶28-30.

Restitution -- Hearing

Restitution -- Hearing -- Evidence
State v. Mark M. Loutsch, 2003 WI App 16, PFR filed 1/17/03; X-PFR filed 1/31/03
For Loutsch: Charles B. Vetzner
Issue/Holding:
¶20. When the trial court has the authority to order restitution for a loss, the court's decision to order restitution in a particular amount is committed to the trial court's discretion. Holmgren, 229 Wis. 2d at 366. However, because Loutsch is questioning whether the record in this case is sufficient to support restitution in any amount for Asp's used sick leave, we view the question as one of law, and therefore our review is de novo. See id. at 366 (conclusions of law may underlie discretionary decisions, and we review these de novo).

¶21. We do not agree with Loutsch that Asp had to present evidence on all the points Loutsch raises in order to meet the victim's burden under Wis. Stat. § 973.20(14)(a). A restitution hearing is not the equivalent of a civil trial and does not require strict adherence to the rules of evidence and burden of proof. Holmgren, 229 Wis. 2d at 367. We conclude the evidence Asp did present was sufficient for the trial court to decide it was reasonably probable that Asp would suffer a pecuniary loss in the future as a result of using his sick leave, and sufficient to provide a reasonable basis for determining the probable amount of the loss. Loutsch had the opportunity, through cross-examination of Asp, to present evidence that Asp would not need some or all of the 552 hours of sick leave to pay for health insurance upon retirement, but Loutsch did not do that. See id. at 372 (testimony that audit costs were reasonable was sufficient prima facie case to authorize imposition of those costs as restitution; burden was then on defendant to show that portions were inappropriate).


Restitution -- Limitations on Trial Court Authority

Restitution -- Limitations -- Bail-Bond Disbursement
William Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996)
For Olson: Terry W. Rose
Issue: Whether bail posted under a bond in a seprate criminal case may be forfeited in order to satisfy a restitution obligation.
Holding:
In regards to this jurisdictional question, Olson ... argues that a trial court has no jurisdiction to simply issue an order that assigns funds directly from a bond to the crime victim.

We agree and thus hold that the trial court's order is void as a matter of law. A trial court does not have authority to use a criminal bond to satisfy a restitution award. State v. Cetnarowski, 166 Wis.2d 700, 710, 480 N.W.2d 790, 793 (Ct. App. 1992). There, the defendant argued that the bond he posted could not be reduced by restitution awards imposed as part of his sentence. Id. at 703, 480 N.W.2d at 790. We examined the bail statutes and concluded that they intentionally excluded restitution awards as expenses which could be applied to the defendant's bond. See id. at 710, 480 N.W.2d at 793. The trial court's order is therefore void because it violates the rule in Cetnarowski that bonds may not be used to satisfy unpaid restitution.

Restitution -- Limitations -- Causation and Special Damages
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶13. Restitution awarded under Wis. Stat. § 973.20(5)(a) is limited in two ways relevant to our present analysis. First, before a trial court may order restitution "there must be a showing that the defendant's criminal activity was a substantial factor in causing" pecuniary injury to the victim. State v. Johnson, 2002 WI App 166, ¶16, 256 Wis. 2d 871, 649 N.W.2d 284 (emphasis added). In making its determination, however, a trial court may "take[] a defendant's entire course of conduct into consideration" including “‘all facts and reasonable inferences concerning the defendant's activity related to the ‘crime’ for which [he] was convicted, not just those facts necessary to support the elements of the specific charge.’” State v. Madlock, 230 Wis. 2d 324, 333, 602 N.W.2d 104 (1999) (emphasis added) (quoted source omitted). Put another way, we have said that a causal link for restitution purposes is established when "the defendant's criminal act set into motion events that resulted in the damage or injury." Rash, 260 Wis. 2d 369, ¶7.

¶14. Second, restitution is limited to "special damages ... which could be recovered in a civil action against the defendant for his ... conduct in the commission of a crime." Wis. Stat. § 973.20(5)(a) (emphasis added). This limitation restrains a sentencing court from ordering the payment of "general damages," that is, amounts intended to generally compensate the victim for damages such as pain and suffering, anguish, or humiliation. See State v. Behnke, 203 Wis. 2d 43, 60, 553 N.W.2d 265 (Ct. App. 1996). The term "special damages" as used in the criminal restitution context, means "[a]ny readily ascertainable pecuniary expenditure paid out because of the crime." State v. Holmgren, 229 Wis. 2d 358, 365, 599 N.W. 2d 876 (Ct. App. 1999).

Restitution -- Limtations -- Unrelated Crime
State v. James A. Torpen, 2001 WI App 273, PFR filed 11/13/01
For Torpen: William E. Schmaal, SPD, Madison Appellate
Issue: Whether a court has authority to order, as restitutive conditions of probation, payment of obligations from prior, unrelated criminal cases.
Holding:
¶14. Pursuant to Wis. Stat. § 973.20, a circuit court may order the payment of restitution to victims of crimes for which the defendant is being sentenced, as well as to victims of any crimes that are read in for sentencing purposes. See State v. Szarkowitz, 157 Wis. 2d 740, 744, 460 N.W.2d 819 (Ct. App. 1990). Szarkowitz recognized, however, that restitution was limited to those two classes of victims. See id. at 756 (reversing award of restitution to victim who had no relationship to the crime of conviction or to the crimes read in at sentencing). Thus, it is improper to order restitution to a party with no relationship to the crime of conviction or the read-in crimes. See State v. Mattes, 175 Wis. 2d 572, 581, 499 N.W.2d 711 (Ct. App. 1993). Based on Szarkowitz and Mattes, the circuit court had no authority to order restitution to Torpen's previous victims because those crimes were not before the court at the time of sentencing.

¶15. The State argues, however, that the court was not ordering restitution pursuant to Wis. Stat. § 973.20, but instead was ordering the payment of outstanding restitution obligations as a general condition of probation pursuant to Wis. Stat. § 973.09(1)(a). We reject the State's attempt to distinguish the basis of restitution ordered.

¶16. First, the probation statute expressly requires the circuit court to order restitution using the procedure outlined in Wis. Stat. § 973.20. See Wis. Stat. § 973.09(1)(b). Second, restitution ordered pursuant § 973.20 is a condition of probation, extended supervision or parole. See Wis. Stat. § 973.20(1r). Finally, we reject the proposition that § 973.09(1)(a) allows a court to order what is not permitted by § 973.20.

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Restitution - Limitations -- court's competency to order refund
State v. James D. Minniecheske, 223 Wis.2d 493, 590 N.W.2d 17 (Ct. App. 1998).
For Minniechske: Jane K. Smith.
Holding/Analysis: More than $1500 was improperly seized from Minniecheske to satisfy a restitution order. (This was money taken from prison and parole earnings, at a time when no such authority existed. Now, of course, it does; § 973.20(1r).) The COA now holds that the sentencing court lacks competency to order the state to refund this money, though the court does have the authority to order the judgment of conviction modified to remove the restitution provision. The COA treats Minniecheske's claim as one for a money judgment against the state: since rendering a money judgment against the state wasn't necessary to resolve the criminal matter, the sentencing court lacked competency to grant this relief. The court suggests three possible remedies: 1) file a claim with the state claims board; 2) "initiate a direct suit against the State," if sovereign immunity isn't a bar; 3. introduce a private bill through a legislator. Id. Minniecheske, it should be noted, raised this issue on collateral review (he used several vehicles: habeas, § 974.06, and motion to modify sentence). Would it make any difference if he had been on direct appeal, Rule 809.30? Certainly direct-appeal rights are more expansive; § 974.06 as relevant, for example, only allows the court to correct the sentence, which doesn't quite get at what Minniecheske wants. The COA doesn't make this distinction between direct and collateral review and indeed its analysis of the issue as involving a claim against the state suggests that the distinction would be meaningless. Nonetheless, the court previously ordered the return of bail money illicitly seized from a bail deposit and applied to restitution, State v. Cetnarowski, 166 Wis. 2d 700, 713, 480 N.W.2d 790 (Ct. App. 1992), a possibly distinguishable holding because the issue was raised there on separate motion for return of bail money, rather than an attack on sentence (albeit, made to the sentencing court). Maybe the two cases are simply irreconcilable, in which event Minniecheske now controls, because it's the more recent statement.
Restitution - Limitations - Delegation to DOC
State v. Aaron Evans, 2000 WI App 178, 238 Wis.2d 411, 617 N.W.2d 220
For Evans: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether the sentencing court may allow the department of corrections to determine the amount of restitution.
Holding: Delegating determination of restitution to DOC isn't authorized by statute and is therefore inappropriate: "Restitution is a statutory process and where, as here, a court constructs its own procedure to determine and set restitution-and that procedure is not authorized by the applicable and controlling law, the decision cannot stand." ¶15. (Note: the procedure invalidated by the court of appeals is described as "standard Milwaukee County procedure." ¶11.)
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Restitution - Limitations - Federal ERISA Preemption - Pension Fund Assets
State v. Richard J. Kenyon, 225 Wis.2d 657, 593 N.W.2d 491 (Ct. App. 1999)
For Kenyon: Rex Anderegg
Issue/Holding: Employee Retirement Income Security Act trumps Victims' Rights. Kenyon was convicted of stealing about $150,000, and was ordered to pay restitution by "voluntarily" withdrawing funds from his pension fund. The COA reverses, holding that ERISA's preemption of state attempts to assign or alienate pension benefits prohibits this effort to "create[] an equitable exception to ERISA's anti-alienation clause."
But compare, U.S. v. Novak, 9th Cir No. 04-55838, 2/22/07 ("criminal restitution orders can be enforced by garnishing retirement funds, but with the funds only payable when the defendant has a current, unilateral right to receive payments under the terms of the retirement plan").
Restitution – Limitations - Exercise of Discretion: Reimbursement to Insurance Company
State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue/Holding:
¶61      Fernandez says the court erred by ordering full restitution to two insurance companies because a court is authorized to do so only where justice requires. Fernandez says that justice does not require a man who washes dishes for a living to reimburse insurance companies worth billions of dollars. The State points out that restitution is a discretionary decision of the circuit court and that the statute permits restitution to insurance companies. [31]

¶62      It is within the court's discretion to award restitution to insurers. Evidence was submitted as to the costs which both insurers had borne for the victims. [32] The circuit court appears to have applied the correct legal standard and to have arrived at a logical interpretation of the facts in ordering restitution from Fernandez. The defendant's ability to pay was clearly considered by the circuit court. Such an award should not be reversed. There is no evidence that the court applied the wrong legal standard or did not ground its decision on a logical interpretation of the facts when it decided justice required reimbursing an insurer who has compensated a victim for a loss.

Restitution - Limitations - “Gifted Funds” in Prisoner’s Account as Source
State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper
Issue: Whether the sentencing court may order that DOC distribute “gifted” (as opposed to wage-based) funds in a prisoner’s account to satisfy a restitution obligation.<
Holding:
¶12      We observe that Wis. Stat. § 973.20 does not limit the consideration of a defendant’s ability to pay out of funds derived from only earnings or wages. In interpreting the restitution statute, we construe its provisions “broadly and liberally in order to allow victims to recover their losses as a result of a defendant’s criminal conduct.” State v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997). Applying this interpretative principle we conclude that “financial resources” refers to all financial resources available to the defendant at the time of the restitution order, including gifted funds, except where otherwise provided by law.  [6] Because a circuit court may consider all sources of funds held by a defendant in determining the amount of restitution, it follows that a court may also order a defendant to pay restitution out of all funds held or available to a defendant, including gifted funds. We therefore conclude that, under § 973.20, a circuit court has the authority to order a defendant to pay restitution from all of his or her “financial resources,” including gifted funds, available at the time of the restitution order and as funds become available to the defendant at a later time.  
The trial court’s reliance on Wis. Admin. Code § DOC 309.49(4)(e) (DOC may disburse prisoner’s funds to satisfy “claims reduced to judgment”) is rejected, because this code provision doesn’t address the circuit’s court authority to issue the order in the first place (¶10). The court also embellishes State v. Troy B. Baker, 2001 WI App 100, ¶17 (trial court has authority under § 303.01(8)(b) to order disbursement of restitution from prison wages), suggesting that its  invocation of § 303.01(8)(b) rather than § 973.20 was misplaced (¶9 n. 3); nonetheless, Baker “was correctly decided.” The court also stresses “the strong equitable policy underlying” § 973.20, namely “to compensate the victim.” Obviously, then, the statute is construed broadly rather than narrowly.
Restitution -- Limitations -- Federal ERISA Preemption -- pension fund assets
State v. David W. Oakley, 2000 WI 37, 234 Wis. 2d 528, 609 N.W.2d 786, reversing State v. Oakley, 226 Wis. 2d 437, 594 N.W.2d 827 (Ct. App. 1999)
For Oakley: Timothy T. Kay
Issue: "(W)hether a circuit court may require payment of an old, unpaid fine that was imposed in a prior sentence as a condition of probation for a new conviction when violation of the condition of probation exposes the defendant to incarceration in county jail for more than six months." ¶2.
Holding: Imposing payment of the old fine as a condition of the new probation violates § 973.07, at least where the potential exposure for violating probation would be more than six months incarceration (adopting position of dissent in court of appeals). Id.
Analysis: Oakley was convicted of an offense carrying a 10-year maximum. The trial court put him on probation with a withheld sentence, and imposed a condition that he pay a prior, otherwise unrelated fine. The court of appeals said that this was a reasonable condition that would rehabilitate Oakley's defiant attitude. The supreme court now says that the condition violates § 973.07, which allows commitment for up to six months in jail for failure to pay a fine. Because of this limitation, the trial court erred as matter of law in conditioning probation on payment of a fine where exposure for non-payment would be more than six months. ¶15. § 973.07 specifically limits a trial court's otherwise broad authority to impose "reasonable and appropriate" conditions. ¶26. The dissenters would permit this condition, with the proviso that failure to comply with the condition could result in no more than six months in jail. They also note that this sort of condition "is a common practice in some circuit courts in this state[.]" The net effect, they say, will be to preclude conditioning probation on payment of unpaid fines except in a few misdemeanor cases. ¶¶29-31. They apparently agree that revocation and sentence of more than six months would violate § 973.07. ¶36. Their solution would allow a defendant to be confined as a further condition of probation, for up to six months, for non-payment. ¶32. (Note: What if the prior obligation was itself a condition of a now-lapsed probation? In that variation of this problem, double jeopardy may well preclude its resurrection in the new probation. L.C. v. State, 114 Wis.2d 223, 338 N.W.2d 506 (Ct. App. 1983).)
Restitution -- Limitations -- Recharacterizing as Condition of Probation
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Because record is clear that trial court ordered restitution, court of appeals refuses to recharacterize (and uphold) order as condition of probation. ¶26.
Restitution – Time Limit: No Explicit Deadline, Court May Consider After Sentencing
State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue/Holding:
¶52      The State counters that there is no language in the statute that requires victim claims to be submitted before sentencing. The State also argues that where restitution was held open, there is no expectation of finality and thus no equitable grounds for denying the claims.

¶53      While Wis. Stat. § 973.20(13)(c) provides the right for a defendant to dispute claims of losses, it does not set any explicit deadlines for victims' claims. Recognizing the unique nature of the restitution process, the statute imposes only limited duties on district attorneys, requiring them to “attempt to obtain from the victim prior to sentencing information pertaining to the factor specified [as to the amount of loss suffered],” [29] and on a court, requiring the court to “inquire of the district attorney” as to any claims for restitution from any victims.

¶54      There is no language in the statute that prohibits the consideration of claims presented before the restitution hearing occurred, which is when Dalka's and CNR's claims were presented. Where, as here, Fernandez had notice of Dalka's injuries (and therefore of those of his insurer, CNR) because Fernandez knew that Dalka had been hurt, there was no expectation of finality at a sentencing hearing when restitution was ordered in an amount to be determined. Even if Fernandez somehow was unaware of the injuries on the night of the crash, the complaint included information on Dalka's being taken by ambulance to the hospital and being told by a doctor that he had torn ligaments in his left knee.

State v. Perry, 181 Wis. 2d 43, 510 N.W.2d 722 (Ct. App. 1993) (60-day timeline for adjourning sentence to consider restitution “directory” rather than mandatory), ratified, ¶56. The holding may be somewhat limited, as the following suggests, ¶58: “In light of the open-ended language of the statute and the court of appeals’ holding in Perry, there is no error at least where the claims are made before the hearing is concluded and restitution is ordered, as the claims were here.”
Restitution - Limitations - Time Limit / Double Jeopardy
State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper
Issue/Holding: Restitution order amendment, directing DOC to disburse funds from the prisoner’s account, did not violate double jeopardy although the amendment occurred three years after the original order:
¶16      Greene’s double jeopardy argument focuses on the fact that DOC, in applying the original restitution order, did not distribute funds from his accounts to pay restitution in the three years prior to the entry of the amended restitution order. Greene argues that after three years of not paying restitution he had a legitimate expectation of finality in the original restitution order, and that the subsequent amended order, which directed DOC to start paying restitution from Greene’s prison accounts, violated double jeopardy principles.

¶18      We conclude that the amended restitution order in this case did not violate Greene’s double jeopardy rights. The amended restitution order merely clarified the original order, which was arguably ambiguous on the issue of when payment of restitution would occur. The original restitution order was made during the court’s oral sentencing decision and occurred immediately after the court discussed the conditions of extended supervision imposed on Greene. The timing of the court’s oral restitution order could be reasonably understood as either falling under the conditions for extended supervision or as part of the overall sentencing order. Once the ambiguity was brought to the court’s attention, the court clarified its intent that restitution be paid while Greene was in prison and, if not fully satisfied, after he left prison under terms to be established by his supervising agent. The amended order for restitution reflected this clarification. The amended restitution order did not alter the restitution amount or any other term set forth in the original order. The amended order therefore did not dash any expectation of finality that Greene reasonably had in the original restitution order. 

The sentencing court set the amount of restitution, but didn’t expressly direct that payments be taken from the prisoner’s account; as a result, DOC determined that it could not draw restitution payments until release on ES. When brought to the circuit court’s attention three years later, the court amended the restitution order to direct that payments be taken from the prison account. And here we are. The double jeopardy clause offers at least some protection against increased restitution, State v. Scott Edward Ziegler, 2005 WI App 69 (determining amount of restitution 14 years after an initial, “to be determined” order, violated DJ). The court distinguishes that case (¶¶18-19), on the ground that the amendment here merely clarified the original order. (In brief: Greene’s restitution amount, unlike Ziegler’s, was properly set originally, so all the amendment did was clarify when and how it was to be discharged; Ziegler’s amount had not been set, and at some point – the court didn’t quite say when – he acquired an “expectation of finality” in the status quo, which was: no amount set.)

Lastly, the court rejects the related claim that the amendment violated DJ because it worked an increase in the sentence (¶20). Given the construction that the amendment merely clarified the original order, this last point was a foregone conclusion. But that shouldn’t obscure the deeper, structural problem, which is the notion that restitution is not “punishment” but is instead a collateral consequence of conviction, e.g., State v. Anthony A. Parker, 2001 WI App 111¸ ¶9. What this means, then, apart from outliers such as Ziegler, is that DJ challenges to restitution face an uphill struggle.

Restitution -- Limitations -- Time Limit
State v. Scott Edward Ziegler, 2005 WI App 69
For Ziegler: Martha K. Askins, SPD, Madison Appellate
Issue: Whether a trial court retains authority to order restitution 14 years after entering a “to be determined” restitution order in the original judgment of conviction.
Holding:
¶11. As we have repeatedly explained, "Restitution is governed by Wis. Stat. § 973.20, which requires courts to order full or partial restitution 'under this section' to any victim of a crime 'unless the court finds substantial reason not to do so and states the reason on the record.'" State v. Evans, 2000 WI App 178, ¶13, 238 Wis. 2d 411, 617 N.W.2d 220; see also § 973.20(1r). A sentence that fails to provide for restitution is unlawful and is subject to amendment.4 State v. Borst, 181 Wis. 2d 118, 122-23, 510 N.W.2d 739 (Ct. App. 1993).

¶12. When, as here, a trial court orders restitution, but does not determine the amount of restitution at sentencing, Wis. Stat. § 973.20(13)(c) sets forth a list of four alternative procedures that the court may use to finalize the amount due. …

¶13. Here, the parties agree that the trial court failed to comply with any of the four alternative procedures for determining restitution and that restitution was set outside of the restitution determination periods of Wis. Stat. § 973.20(13)(c)2. …

¶14. In State v. Perry, 181 Wis. 2d 43, 53, 510 N.W.2d 722 (Ct. App. 1993), we held that the sixty-day restitution determination period of Wis. Stat. § 973.20(13)(c)2. is directory, not mandatory. … Accordingly, we concluded that restitution orders resulting from proceedings held outside of the statutory time period for valid reasons may be upheld, provided that doing so will not result in harm or injury to the defendant. See id.; see also Johnson, 256 Wis. 2d 871, ¶¶8-14 (citing Perry for the conclusion that a court may impose restitution outside the statutory time frame as long as (1) valid reasons exist for the delay and (2) the defendant has not been prejudiced by the delay).

¶15. Here, there is no valid reason for the delay. …

¶17. Must we consider the second component of the Perry test, the question of prejudice to the defendant, if we determine, as here, that there is no demonstrable valid explanation for holding the restitution determination hearing outside the statutory time limits?

¶18. We conclude that we must. … We therefore hold that the two-pronged Perry test is akin to a balancing test; in each case, the court must balance the length and reasons for the delay against the injury, harm or prejudice to the defendant resulting from the delay. See id. at 56-57.

The court proceeds to conclude that the 14-year delay prejudiced Ziegler, but the analysis is a bit of a muddle, ¶¶18-21. On the one hand, the court suggests that the result is fact-specific (¶19, stressing that “much of the documentation concerning the victim’s damages had been lost or destroyed”); and on the other, that a delay of such magnitude is necessarily prejudicial (¶19, stressing that “more importantly” Ziegler had “acquired a legitimate expectation of finality of the judgment against him”; and ¶21, concluding that “such delay inherently prejudiced Ziegler,” emphasis supplied). So, now we know that 14 years is a bit too long for the court, at least where records have been lost. What about 13, or 12, 10 or 5? Pretty clear that the court doesn’t want to lay down any rules that would later bind anyone – else the court would have mandated relief simply upon determining no justification for delay. Restitution is apparently a matter of equitable consideration, and in that sense this decision – which undoubtedly came to the correct result – is deeply problematic. The court has also created an intolerable tension between its express acknowledgement of a defendant’s “legitimate expectation of finality” (a phrase which implicates double jeopardy considerations, by the way – see generally, State v. Guy R. Willett, 2000 WI App 212, cited with approval and applied by this decision, ¶19; and U.S. v. Rosario, 2nd Cir. No. 03-1686-cr, 10/8/04: “application of the double jeopardy clause to an increase in a sentence turns on the extent and legitimacy of a defendant’s expectation of finality in that sentence”) and its prior holdings to the effect that restitution is not “punishment” but is a collateral consequence of conviction (e.g., State v. Anthony A. Parker, 2001 WI App 111¸ ¶9). Keep in mind, too, the distinction drawn by the court between overlooking restitution altogether at sentencing, and a to-be-determined order as in this instance, ¶11 n. 4. Apparently, in the former instance, the sentence is deemed “illegal” and thus can be reopened, at least with regard to restitution, seemingly without impediment, id. In the latter instance, the two-part “Perry” test applies. Could, then, a court reopen a previously ignored restitution demand 14 years after the fact, on the theory that that aspect of the sentence was “illegal”; and that an “illegal” sentence is void? Who knows. At some point, you must have some expectation of finality in a result; and even if you don’t, there may be a due process claim of denial of right to speedy sentencing.
Restitution -- Limitations -- Time Limit
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue: Whether delay of 18 months in setting restitution amount deprived court of jurisdiction to enter the restitution order.
Holding: Statutory time limits for setting restitution are regulatory, not jurisdictional, and may be exceeded when there is a valid reason and no prejudice. ¶8. A valid reason existed here: at sentencing Johnson agreed to a delay in setting restitution; a victim's costs continue to accumulate; Johnson didn't object until the day of the restitution hearing. ("(W)e conclude that it was not reversible error to delay restitution proceedings when the victim in a consolidated case was still accumulating compensable costs.") ¶10. Nor can Johnson show any prejudice from delay. ¶¶11-13.
Restitution -- Limitations -- Time Limit.
State v. Carl Simonetto, 2000 WI App 17, 232 Wis.2d 315, 606 N.W.2d 275.
For Simonetto: Christopher L. Hartley
Issue: Whether the trial court erred in holding open restitution until certain victims could be identified.
Holding: "Section 973.20(13)(c), Stats., creates a ninety-day maximum hold-open period for entry of restitution after a sentence is imposed." ¶10. (Note: The holding is probably more limited than the quote implies. In particular, it probably means that a court can't hold restitution open past the 90 days in order to identify a victim. Otherwise, "the time period within sec. 973.20(13)(c)2 is directory." State v. Perry, 181 Wis.2d 43, 56, 510 N.W.2d 722 (Ct. App. 1993).")
Restitution -- Limitations -- Time Limit
State v. Jeffrey Kenneth Krohn, 2002 WI App 96
Issue: Whether the remedy for a conceded violation in following statutory procedure, including time limit, in determining restitution amount is remand for a restitution hearing under proper procedure.

Holding:

¶13 While we accept Krohn's challenge to the circuit court's restitution order, we reject his attempt to prevent the court from properly determining restitution and issuing the appropriate restitution order. Consistent with "the goal [of WIS. STAT. § 973.20] of facilitating complete restitution for the victim," see Perry, 181 Wis. 2d at 56, we: (1) reverse the portion of the judgment of conviction that addresses restitution; (2) reverse the orders denying Krohn's motion to vacate and his motion to reconsider; and (3) remand the case to the circuit court with instructions to vacate the restitution order, determine restitution in a manner consistent with the requirements of § 973.20(13), and enter the appropriate restitution order.
Restitution -- Limitations -- Ordering Payments Withheld from Prison Wages
State v. Troy B. Baker, 2001 WI App 100, 243 Wis. 2d 77, 626 N.W.2d 862
Issue: Whether the trial court had authority to order that restitution be withheld from prison wages.
Holding: Because a restitution order contained in a judgment of conviction is an "obligation reduced to judgment," a trial court has authority under § 303.01(8)(b) to order disbursement of restitution from prison wages. ¶17. (Court distinguishes State v. Evans, 2000 WI App 178, ¶11, ¶16, 238 Wis. 2d 411, 617 N.W.2d 220.)
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Restitution -- "Victim"
Restitution – “Victim”: Obligor of Bail Forfeited by Defendant’s Violation of Bond Condition
State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08
For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue/Holding: The defendant’s mother, who posted subsequently-forfeited cash bail, is a “victim” for restitution purposes:
¶8        …
  • Agosto committed the “crime” of bail-jumping. He pled guilty and the circuit court entered a judgment convicting him of that crime.
  • As a result of that crime, Agosto’s mother lost $50,000, and she lost it by the artifice of her son’s false promise to comply with the conditions of his bond as surely as if he had taken the $50,000 from her by force.
  • Thus, Agosto’s mother was the “victim” of his having committed the crime of bail-jumping. See State v. Galli, 967 P.2d 930, 937–938 (Utah 1998) (If the defendant had either pled guilty to or admitted to violating the conditions of his bail, he would have been subject to a restitution order directing him to reimburse the person who posted the bail that was forfeited as a result of the violations.).

¶9        As applicable here, a circuit court may impose a restitution order as part of a sentence if the following is true:

  • the beneficiary of the restitution order is “[a] person against whom a crime has been committed” (so as to be a “victim”); and
  • the beneficiary of the restitution order is a victim of a crime that is “considered at sentencing.” He or she need not be a victim of the crimes for the sentence imposed (here, sexual assault and interference with child custody).
Both of these requisite elements are present here.
An expansive definition of “victim,” but that’s nothing new. One thing to note: even if not forfeited, bail upon defendant’s conviction must be disbursed toward restitution and costs, § 969.03(4). Is Agosto entitled to reduction of the bail-jumping restitution by the amounts that would have been taken from bail even absent his bail-jumping? Not discussed by the court. Too bad, not just because you then have to wonder not just about how the amount of restitution was calculated but also about the court’s rationale altogether, which is pretty much limited to analogizing the bail-obligor to a robbery victim (¶8). Just how strong is the analogy? Not too many robbery victims sign contracts agreeing ahead of time to the loss of property taken during a robbery. Agosto’s mother wasn’t tricked into signing the bond agreement. She may have hoped her dutiful son wouldn’t violate; she may have held him to an unrealistic standard of decent behavior; his abuse of her touching faith might have been the stuff of day-time tv; but nothing in the opinion suggests she was tricked into putting herself at his mercy. (So much, too, for the notion of the lad’s artifice.) She likely believed there was no risk (what economists like to call a “moral hazard”), but she wasn’t misled: she merely assumed that filial love was equal to maternal devotion, such that no risk accrued to her money. And that also gets back to the original point, that she well knew, from the plain terms of the agreement, that something would be deducted; she knew in other words, that at a minimum she wasn’t going to get it all back. It wasn’t a “moral hazard” after all (or maybe it was, but in a lay, not technical, sense). In for a penny, in for a dollar. Briefly put, although it might well be that she ought to be considered a “victim” for restitution purposes, the court of appeals’ reasoning doesn’t support that idea.

The original restitution order, by the way, was 50k, reduced later to 12k, a still-substantial amount. At just what point does restitution become punitive (which isn’t to say, off-limits but rather, similar to a fine, a “direct” consequence of a conviction)? And, similarly, when does a restitution order trigger the right to jury? Never, in the current view of the courts. But perhaps thought should be given to at least raising the problem.

The court, incidentally, not content merely to expand the definition of victim under the restitution statute, proceeds to similarly expand the court’s authority to enter a similar order for purposes of extended supervision, ¶9.


Victim -- "Family Member"

Restitution -- "Victim" -- "Family Member" -- Mother, Aunt
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether, on a conviction for homicide of a child, the child's mother and aunt could be considered victims within the meaning of § 973.20(1r) so as to support restitution for their counseling costs.
Holding: "Victim" in § 973.20(1r) is assigned the meaning of "victim" in § 950.02(4)(a), ¶71; and, because a mother is, under the latter provision, a "family member" and hence a "victim," the mother in this case is entitled to restitution, ¶¶75. However, because an aunt is not a "family member" under § 950.02(3), her restitution order must be vacated.
Restitution - "Victim" -- Stepparent's Wages, Lost Accompanying Victim to Court
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Wages lost by a stepparent's accompanying the victim to court aren't subject to restitution; lost wages are limited to those persons identified in § 973.20(5)(b). ¶¶22-23.
Foreign authority for idea that victim's parents not entitled to lost income due their "voluntary decision to attend trial": State v. Koile, FL SCt No. SC-05-132, 7/6/06 ("the lost income was not a result of the offense but was a result of a voluntary decision and does not bear a significant relationship to the offense").
Restitution - "Victim" -- "Family Member" -- Stepparent
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: A stepparent is not victim for § 973.20(1r) restitution purposes. ¶¶17-19. (However, a stepparent may qualify as an "other person," under § 973.20(5)(d). ¶20.)

Victim -- "Governmental Entity"

Restitution -- Law Enforcement Officer Not "Victim," § 973.20(1r) re: Injuries Suffered While Apprehending Defendant
State v. Anthony Houston Lee, 2008 WI App 185
For Lee: Carl W. Chessir
Issue/Holding:  
¶11      As noted, Wis. Stat. § 973.20 authorizes a trial court to order restitution to victims of a “[c]rime considered at sentencing,” which includes “any crime for which the defendant was convicted and any read-in crime.” Sec. 973.20(1g)(a) & (1r). We conclude that this language is clear and unambiguous, and that it requires us to reverse the restitution order. Here, the two crimes that were considered at sentencing were armed robbery (to which Lee pled guilty) and armed burglary (which was read in). Lee was not charged with fleeing an officer, assaulting an officer or any crime related to his flight from officer Lindstrom. Accordingly, Lindstrom was not a victim of a crime considered at sentencing, and neither he nor the insurance company that paid expenses related to his injuries can receive restitution. [6]
The court (¶10) refers to prior caselaw discussion relative to the test for law enforcement restitution—whether the loss is a direct or collateral consequence of the criminal conduct, State v. Earl W. Haase, 2006 WI App 86—but concludes that the present case is resolved simply by virtue of the fact that the injury wasn’t part of a “crime considered at sentencing.”
Restitution -- Law Enforcement as "Victim" -- Damage to Squad during Pursuit
State v. Earl W. Haase, 2006 WI App 86, (State’s) PFR filed 5/17/06
For Haase: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether restitution may be ordered for damage caused to a squad car destroyed by fire during pursuit of the defendant.
Holding:  A governmental “agency must be a direct victim of the criminal conduct to be reimbursed for a loss, but even when it is a direct victim, it may not recover collateral losses of normal law enforcement activities,” ¶13. The police agency in this instance was not a direct victim, so the restitution order falls for that reason, without reaching the issue of collateral loss:
¶14      Turning to the present case, we conclude that the department was not a direct victim of Haase’s criminal conduct. His criminal conduct in this case—eluding an officer—did not directly cause the loss of the department’s squad car. In Ortiz, we explained that the police officers involved in the standoff were the direct victims of Ortiz’s criminal conduct, while the city was only an indirect victim and hence was not entitled to restitution. We explained that the officers were the direct victims of each of Ortiz’s crimes:
Ortiz did not threaten to injure the city—he threatened to injure the police officers. Ortiz did not fail to comply with an attempt by the city to take him into custody—he failed to comply with the police effort to take him into custody. Ortiz did not obstruct the city—he obstructed the police. And finally, Ortiz’s disorderly conduct was not targeted at the city—it was targeted at the police.
Ortiz, ¶22. Similarly, in this case, the deputies that Haase led on a dangerous, high-speed chase were the direct victims of Haase’s criminal conduct. Haase’s criminal conduct did not cause harm to the property of the department; he did not vandalize public property, he eluded an officer. Thus, the officers, not the department and its budget, were the direct victims of his conduct.
The court provides a summary of caselaw with respect to when a government agency may be considered a “victim” for purposes of restitution under § 973.20, ¶¶7-10. The synthesis is contained in the two-part test noted above, see also ¶10. In the process, the court rejects the State’s effort to impose in this context the general test for causation: “the ‘substantial factor’ standard would significantly enlarge the scope of conduct for which an agency would be entitled to restitution and thereby contravene our prior cases,” ¶12. (Indeed so, as to significant enlargement of liability; see commentary scattered under cases collected here.) The court also distinguishes Haase’s circumstance from one in which the actor rams a squad car—in that latter instance, the agency would be a direct victim, ¶16.
Restitution -- Law Enforcement Collateral Expenses
State v. James N. Storlie, 2002 WI App 163
For Storlie: William E. Schmaal, SPD, Madison Appellate
Issue: Whether the destruction of "stop sticks" caused by defendant's flight from the police is properly subject to a restitution order.
Holding:
¶10.... (T)he government is entitled to restitution for losses incurred when it is a victim as a direct result of criminal conduct, but not for collateral expenses incurred in the normal course of law enforcement.
¶11. Under the facts presented, we are satisfied that the police department is not a victim within the meaning of Wis. Stat. § 973.20 and therefore is not entitled to restitution for destruction of the stop sticks. There is no dispute that the officers deployed the sticks with the purpose that Storlie's vehicle would run over them and that he would be apprehended. The cost of the sticks was an expenditure incurred in the apprehension of a criminal suspect. Accordingly, their destruction was similar to the cost of the overtime for the SWAT team in Ortiz and the "buy money" in Howard-Hastings -- expenses incurred for tools used in the apprehension of criminal suspects. [Sic: Howard-Hastings  is a vandalism case; the court undoubtedly meant to refer to State v. Evans, 181 Wis.2d 978, 984, 512 N.W.2d 259, 261 (Ct. App. 1994).] Therefore, as a normal cost of law enforcement, the expense of the stop sticks did not cause the police department to be a "victim" under § 973.20."
(Note: Court distinguishes destruction of "stop sticks," whose sole purpose is to stop a fleeing car, from damage to a patrol car during a chase, which the court likens to vandalism. ¶14.)
Restitution -- "Victim" -- Governmental Entity -- Overtime Police Costs
State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate
Issue: Whether restitution may be ordered under § 973.20 for overtime police costs.
Holding:
¶20. The collective effect of Schmaling and Howard-Hastings is the following. A governmental entity can, in the appropriate case, be a victim entitled to restitution. (Howard-Hastings). Where the defendant's conduct indirectly causes damage or loss to the governmental entity, the entity is a passive, not a direct, victim and is not entitled to restitution. (Schmaling). Conversely, where the defendant's conduct directly causes damage or loss to the governmental entity, the entity is a direct or actual victim and is entitled to restitution. (Howard-Hastings and Schmaling). …

¶23. In carrying out his criminal activities, Ortiz did not cause any damage, loss or harm to the law enforcement. Were it otherwise, those persons would be direct or actual victims and would have valid restitution claims for such direct losses. And if the city had absorbed those losses, it might also be a direct or actual victim and entitled to restitution under Schmaling and Howard-Hastings. But that is not the situation before us. The police, not the city, were the actual victims of Ortiz's offenses. As such, the city cannot recoup its collateral expenses in apprehending Ortiz.

(Note: The court also rejects the idea that the restitution could be ordered as an item of cost, § 973.06(1)(a) -- the expenses were incurred in the normal course of a police operation, and thus were mere “general internal operating expenses,” which cannot support a cost order. &para;24 n. 6. In addition, the court declines to uphold the restitution order as a condition of probation, largely "because the trial court did not defend the restitution order as a condition of probation when Ortiz brought the issue to the fore in the postconviction proceeding." &para;26.)
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Restitution -- "Victim" -- Police: As Crime Prevention Organization
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:
To define "crime prevention organization" to include law enforcement agencies would lead to absurd results. By ordering a defendant to make a contribution to a "crime prevention organization," a court could order a defendant to repay internal operating expenses of a police department and routine operating expenses of the State Crime Laboratory or return drug "buy money" and circumvent judicial interpretation of the applicable statutes and subsequent legislative acquiescence to that interpretation. Because we are required to avoid statutory constructions which lead to an absurd or unreasonable result, see State v. Mendoza, 96 Wis.2d 106, 115, 291 N.W.2d 478, 483 (1980), we reverse that portion of the judgment that orders Bizzle to make a contribution to the Racine Police Department Street Crimes Unit pursuant to § 973.06(1)(f), Stats.
Restitution -- "Victim" -- County Department of Human Services
State v. Troy B. Baker, 2001 WI App 100, 243 Wis. 2d 77, 626 N.W.2d 862
For Baker: William E. Schmaal, SPD, Madison Appellate
Issue: Whether the county DHS, which paid out testing expenses for a sexual assault victim, may be considered for restitution purposes an "insurer, surety or other person who has compensated [the] victim."
Holding: Because § 973.20(5)(d) permits restitution to a third party, ¶5, and because the county Medical Assistance program "is an insurer like any other for purposes of § 973.20(5)(d)," the trial court properly awarded restitution to the county, ¶13.
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Victim -- Potential Participant in Crime

Restitution -- Victim as Party to the Crime
State v. Chad J. Knoll, 2000 WI App 135, 237 Wis.2d 384, 614 N.W.2d 20
For Knoll: Ralph Kalal
Issue: Whether passenger Foust, injured in the crash of a car whose driver (Knoll) was drunk, was party to the crime of drunk driving and therefore not a "victim" for purposes of restitution.
Holding: ¶11:
Because Knoll has not established either that Foust undertook conduct to aid Knoll in operating a motor vehicle while intoxicated or that Foust intended his conduct to help Knoll drive while impaired, we reject Knoll's assertion that Foust aided and abetted his driving while intoxicated. Therefore, we conclude that Knoll's contention that Foust was not a victim because he was a party to the crime of driving while intoxicated is without merit.
Analysis: These guys drank prodigious amounts of alcohol. Foust purchased at least some of the beer. The inevitable happened, and the tree Knoll drove into was at least as unforgiving as the court of appeals. Sentenced for operating under the influence, Knoll was ordered to pay restitution for Foust's injuries. Knoll creatively argues that Foust wasn't a "victim," because he was party to the crime. The court rejects the argument, even though Foust indisputably provided some of the beer:
While that fact is undisputed, we note there is no evidence: (1) that Knoll's intoxication resulted from the consumption of those beers purchased by Foust, which consumption had occurred more than three hours before the accident; (2) that Knoll intended to drive after drinking the beers purchased by Foust, especially since all of the men were then riding in Haase's truck which Haase was driving; (3) that Foust encouraged Knoll to drink the beers he purchased for the purpose of later driving while intoxicated; or (4) that Foust was aware that Knoll would drive later that evening. Furthermore, the crime of which Knoll was convicted involved operating a motor vehicle while intoxicated. The crime was not consuming alcohol. It was not the buying of a six-pack of beer which caused the injuries for which the State seeks restitution. It was Foust's voluntarily choosing to drink until he was intoxicated, and then choosing to get behind the wheel of a motor vehicle, which caused those damages.
¶10. (The fourth factor's probably the most important, keeping in mind that ptac liability is assigned to crimes which are the natural and probable consequence of an intentional criminal act, though the court of appeals doesn't discuss the problem in these terms. See State v. Asfoor, 75 Wis. 2d 411, 430, 249 N.W.2d 529 (1977).)

Victim - Governmental Entity – School District

Restitution – "Victim" - Governmental Entity – School District
State v. Derick G. Vanbeek, 2009 WI App 37, PFR filed 3/13/09
For Vanbeek: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: On conviction for making a false bomb scare, § 947.015, Vanbeek is liable in restitution to the school district for salaries and benefits paid to teachers and staff during the resulting 4-hour evacuation, because the school district was a “direct victim” of the crime.
¶11      By contrast, where the conduct involved in the crime considered at sentencing is directed at government property, the owner of that property is entitled to restitution. Thus, in Howard-Hastings, the government was entitled to restitution as the direct victim of the defendant’s acts of vandalism where the defendant was convicted of criminal damage to property after cutting down several government owned “telephone-type poles.”  Howard-Hastings, 218 Wis. 2d at 154, 157-58; see also Haase, 293 Wis. 2d 322, ¶16 (citing favorably the analysis in State v. Dillon, 637 P.2d 602 (Ore. 1981), in which the court upheld a restitution order for the cost to repair a patrol car that the defendant intentionally rammed with his vehicle and for which the defendant was convicted of criminal mischief).

¶12      Here, Vanbeek likens the staff at the Markesan School District to the police officers in Ortiz and Haase, contending that the direct victims of his false bomb scare were those who evacuated the building, and not the school district. This argument misses the mark. Vanbeek conveyed a false threat to destroy school district property, which resulted in an evacuation and a direct loss to the school district. There is no doubt that the conduct involved in the crime considered at sentencing—conveying a threat to destroy school district property by means of explosives—was directed at the school district. Vanbeek left the bomb scare note on school district property and the note threatened to destroy school district property.


Restitution -- Waiver of Objection

Restitution -- Waiver of Objection
State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder
Issue/Holding:
¶55 WISCONSIN STAT. § 973.20, governing restitution in criminal cases, “provides that a trial court ‘shall order the defendant to make full or partial restitution under this section to any victim of a crime,’ when imposing a sentence or probation for any crime.” State v. Hopkins, 196 Wis. 2d 36, 42, 538 N.W.2d 543 (Ct. App. 1995). In Hopkins, the presentence investigation report indicated certain restitution amounts. See id. at 41. At sentencing, neither the State nor the defendant mentioned restitution; however, when the trial court imposed its sentence, it also ordered restitution consistent with the amounts noted in the presentence report. See id. at 43-44. The defendant did not object to the restitution, and the trial court entered the judgment of conviction. See id. It was not until postconviction motions that the defendant sought to vacate the restitution order. See id. The Hopkin court recognized:
[I]n the absence of any objection to amounts claimed on a court-ordered restitution summary accompanying a presentence investigation, where a defendant has been given notice of the contents of that report and summary, the trial court is entitled to proceed on the understanding that the claimed amount is not in dispute, and so order restitution under [§] 973.20(13) ….
Id. at 42 (quoting State v. Szarkowitz, 157 Wis. 2d 740, 749, 460 N.W.2d 819 (Ct. App. 1990)).13 Because Hopkins received notice via the presentence report and further, failed to contest restitution at sentencing, this court determined that “[h]is failure to contest the issue at sentencing constituted a ‘constructive’ stipulation to the restitution order.” Id. at 44.

¶56 Here, Leighton first contested restitution in postconviction proceedings. Although the presentence investigation report did not specify an amount, it noted that a “substantial amount of restitution is expected.” At the sentencing hearing, the State specified the restitution amounts requested, including $27,146 for the property damage to Clark’s residence. In his argument at sentencing, Leighton never objected to this restitution amount, never requested a restitution hearing under WIS. STAT. § 973.20(13), and never objected when the court ordered restitution in the amount requested. Although Leighton did not receive notice of the specific restitution amount via the presentence report, he was on notice that a substantial amount of restitution was expected. He does not dispute that he failed to contest the restitution amount at sentencing. Accordingly, we conclude that Leighton constructively stipulated to the restitution order. See id. The trial court did not, therefore, err in setting the restitution amount.


13 WISCONSIN STAT. § 973.20(13)(c) provides in relevant part:
The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity to stipulate to the restitution claimed by the victim and to present evidence and arguments on the factors specified in par. (a). If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. (Emphasis added.)
In State v. Szarkowitz, 157 Wis. 2d 740, 749, 460 N.W.2d 819 (Ct. App. 1990), this court held that “[t]he use of the word ‘stipulate’ in [§] 973.20(13)(c) does not imply a requirement of a formal written stipulation, signed by the defendant, as to the amount of restitution claimed.”
Restitution -- Waiver of Objection
State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Failure to object to restitution until postconviction motion would not incur waiver bar for several reasons: particular claim is of statewide interest; the state never argued waiver in the trial court; the issue is one purely of law. ¶¶11-13.
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SENTENCE CREDIT
Generally, § 973.155 -- "Custody" and "Escape"
State ex rel. Michael J. Thorson v. Schwarz, 2004 WI 96, affirming unpublished decision of court of appeals
For Thorson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶16. The term "custody" is not defined in Wis. Stat. § 973.155. To fill this void, Wisconsin courts have relied upon the definition set forth in Wis. Stat. § 946.42(1)(a), the escape statute….

¶18. Although the above definition is the necessary starting point for determining "custody" for sentence credit purposes, it is by no means the only consideration. This court has made clear that offenders must also be subject to an escape charge in order to be in "custody" for purposes of sentence credit. Magnuson, 233 Wis. 2d 40, ¶¶1, 25, 31, 47.

(This conclusion more or less begs the question. As the dissent indicates, credit-triggering custody should attach whenever the individual satisfies the § 946.42(1)(a) requirement of “actual custody,” either “of an institution” or of some “confinement order” (and Thorson indisputably satisfied that requirement), with a Magnuson-type analysis only when that the person isn’t in that sort of custody. See ¶54. But that is not a distinction recognized by the majority, and so in all instances, liability for escape will have to be shown in order to meet the credit definition of “custody.”)
Sentence Credit – Concurrent Sentences: Each Must Be Analyzed Separately for “Connection,” Though Imposed at the Same Time
State v. Elandis D. Johnson, 2009 WI 57, affirming 2008 WI App 34
For Johnson: Meredith J. Ross, UW Law School
Issue/Holding:
¶76      We conclude that Wis. Stat. § 973.155 imposes no requirement that credit applied toward one sentence also be applied toward a second sentence if the basis for applying the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same time. The fact that sentences are concurrent and are imposed at the same time does not alter the statutory mandate that credit toward service of a sentence be based on custody that is "in connection with" the course of conduct giving rise to that sentence: i.e., custody factually connected with the course of conduct for which sentence was imposed. Because Johnson cannot satisfy this requirement, the decision of the court of appeals is affirmed.
Clear enough: just because sentences are concurrent and imposed at the same time doesn’t mean each is awarded the same amount of credit. Johnson was on a catch-and-release program: arrested, released on bond, arrested on a new offense, until finally he could no longer post cash bond. Eventually the various charges got resolved at the same time, and even though his sentences were (as relevant to the appeal) concurrent, credit toward each was differential, reflecting the different events converging on disposition. Lengthy discussion by the court of the “in connection with” requirement, more or less captured by the following:
¶46      The statute poses a simple test: whether the custody for which sentence credit is sought was "in connection with the course of conduct for which sentence was imposed." Wis. Stat. § 973.155(1)(a). Admittedly, the answer to this statutory test is not always simple.

¶47      Calculating the correct number of days that need to be credited to each of Johnson's concurrent sentences requires that we examine separately each sentence and the time spent in presentence custody "in connection with" each sentence. We cannot, as Johnson's argument attempts to do, conflate all the concurrent sentences imposed on the same day and make a credit determination as if there were only one overall sentence imposed.

Note that when Johnson picked up his last charge he was still “free” on bond on the first case, with that bond never being revoked. The court of appeals recognized the significance of the unchanged bond, 2008 WI App 34:
¶32      There is, however, a noteworthy parallel between Beiersdorf and the instant case. In Beiersdorf, the defendant would likely have received the sentence credit he sought if only his lawyer had thought to ask the circuit court to convert Beiersdorf’s personal recognizance bonds to cash bail during the time Beiersdorf was in custody on his new unrelated charge. Beiersdorf complained that “‘[o]nly the lack of paperwork revoking bail in the sexual assault case prevents [him from] receiving 44 days jail-time credit in the sexual assault case.’” Id. at 499 n.2. We addressed this topic as follows:
We note that defense attorneys, in countless cases, do ask trial courts to convert personal recognizance bonds to cash bail when their clients have been arrested and do remain in custody on cash bail on subsequent charges. They do so precisely because they want to assure sentence credit on both offenses. That, however, did not occur in this case.
Id. Like Beiersdorf, it appears that Johnson might have made himself eligible for the credit he seeks. Johnson was free with respect to his 2004 case during the time he was in custody in 2005 because he posted bail in the 2004 case. Thus, it appears there may have been steps Johnson could have taken to make his custody “in connection with” his 2004 case.
The dissent in the court of appeals went so far as to raise the possibility counsel “was ineffective by failing to assist Johnson in taking the necessary steps to make his custody ‘in connection with’ his [first] case,” presumably by failing to obtain revocation of his bond. The supreme court gives this problem glancing notice, ¶¶73-75, to the effect that counsel shouldn’t be second-guessed for continuing to keep alive Johnson’s quest for presentence release, something Johnson wanted. Fair enough. But that doesn’t minimize the tension for the harried practitioner representing any given client determined to reoffend. The court suggests that “a defendant is probably entitled to move for revocation of his own presentence release” (but cautions that once set, course-reversal would be difficult), ¶74 n. 20, so revocation of bond the defendant can’t meet anyway is a potential remedy. One more strategic consideration to make.

A 3-Justice concurrence questions whether State v. Warrick D. Floyd, 2000 WI 14 (pre-trial confinement on a read-in charge related to sentenced offense, therefore qualifies for sentence credit) remains viable in light of State v. David G. Straszkowski, 2008 WI 65 (read-in no longer deemed an offense admitted by defendant): “This new analysis now leaves open the question of whether the defendant is being sentenced for the same ‘course of conduct’ because under Straszkowski, read-in offenses are not admitted,” ¶90. The concurrence may be reading a bit much into Straszkowski, which also holds, ¶93, “that a defendant's agreement to read in a charge affects sentencing in the following manner: a circuit court may consider the read-in charge when imposing sentence but the maximum penalty of the charged offense will not be increased; a circuit court may require a defendant to pay restitution on the read-in charges; and a read-in has a preclusive effect in that the State is prohibited from future prosecution of the read-in charge.” But we’ll see.

Sentence Credit - "course of conduct" - concurrent sentences imposed at different times.
State v. Daniel C. Tuescher, 226 Wis.2d 465, 595 N.W.2d 443 (Ct. App. 1999).
For Tuescher: David D. Cook
Issue/Holding: Tusecher's conviction on one count, out of several counts with concurrent sentences, was vacated for new trial. He continued to serve the remaining sentences, and was ultimately convicted and sentenced on a lesser offense on the vacated count. The court holds that Tuescher is not entitled to sentence credit on the resentenced count for time served between vacating and resentencing. In more general terms, "a defendant earns credit toward a future sentence while serving another sentence only when both sentences are imposed for the same specific acts." Though Tusecher himself ends up with less time overall than before, the court acknowledges the danger that under similar circumstances "a defendant could actually be worse off for having one of several convictions reversed." The court leaves open the possibility of a challenge to an unfair result: "Tuescher has not raised the question of whether the present result is so unfair as to violate his constitutional right to due process, or possibly to equal protection of the laws, and we therefore do not consider any constitutional dimensions of the present dispute."
Sentence Credit - Credit for Conditional Jail Time (Condition of Probation) Served While “Overlapping” with Concurrent Unrelated Prison Sentence
State v. Martin V. Yanick, Jr., 2007 WI App 30
Pro se
Issue/Holding:
¶1    … We conclude that, when a defendant has served conditional jail time and his or her probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence.
All the rest is commentary. But here goes anyway. Yanick was given probation with 6-months condition time; while serving that time he received a concurrent prison sentence on an unrelated offense, so that his condition time “overlapped” with a prison sentence; he eventually got revoked on the probation and now seeks—successfully—credit on the revocation sentence for the overlapping condition time. It’s undisputed that you’re entitled to credit against a subsequent revocation sentence for time spent in jail as a condition of probation, State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 10-11, 572 N.W.2d 864 (Ct. App. 1997). The State resists that principle, arguing that once Yanick began serving the prison sentence he stopped serving the condition time, ¶8: conditional jail time isn’t a “sentence,” and it’s therefore not possible to serve condition time in prison. What the State says might well be true, according to the court of appeals, yet the State’s analysis simply doesn’t address whether conditional time may be served concurrent with prison time. (Interestingly, the court doesn’t quite demonstrate that it may be served in prison; instead, the court rejects the State’s analysis as non-persuasive and appears to simply take as given such authority, ¶¶8-14.) The court goes on to reject the State’s separate argument that credit is barred under State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989): in effect, the court says, credit is allocated for concurrent sentences even if they’re unrelated and awarded at different times, ¶¶15-19. Finally, the court rejects the State’s claim that State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985) disallows credit:
¶22   To the extent the State is suggesting that Beets holds that service of a sentence on crime A always “severs” time in custody owing to crime B for purposes of awarding sentence credit on the sentence for crime B, we disagree. Beets addressed a particular type of status—time in custody serving a sentence and awaiting disposition on a separate crime. Beets does not address service of a sentence and concurrent service of custody time pursuant to a disposition, which is the sort of concurrent custody time at issue here.
Pay attention to ¶10, which more or less suggests that in situations such as Yanick’s the trial court consider exercising its § 973.09(1)(a) authority to modify a probation condition for “cause”; that is, had the trial court eliminated the condition time following Yanick’s sentence to prison he wouldn’t have a claim for credit, now would he?
Sentence Credit - Consecutive Sentences, Following Partial Plea Withdrawal and Reconviction – Interplay of §§ 973.04 and 973.155
State v. Charles Lamar, 2009 WI App 133, PFR filed 9/10/09
For Lamar: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding: After sentencing on 2 separate counts, the trial court granted Lamar’s motion to withdraw his guilty pleas on 1 of the counts. He continued to serve the sentence on the unchallenged count. Lamar subsequently pleaded guilty to that count, as well as another count, and the court ordered that their sentences run concurrent to each other but consecutive to the first, undisturbed count. Lamar now argues that he is entitled to sentence credit on the later convictions for time spent on the first count, under the § 973.04 mandate to award credit for “confinement previously served” on a vacated sentence. The court of appeals holds otherwise:
¶9        We first observe that Wis. Stat. § 973.04 directs the Department of Corrections, not the trial court, to give credit for time served. We will assume, without deciding, that the statute applies to sentencing courts. If in fact it applies, it applies only if a defendant is serving one sentence and that particular sentence is vacated. [2] Here, when Lamar was sentenced for the aggravated battery as a habitual offender charge, he was also sentenced for bail jumping as a habitual offender. Consequently, when Lamar’s plea to the aggravated battery as a habitual offender charge was vacated, he was still serving a sentence handed down at the same time as his aggravated battery as a habitual offender sentence. At the resentencing, the trial court specifically stated that the aggravated battery sentence and the new misdemeanor bail jumping sentence were to be consecutive to the underlying bail jumping as a habitual offender sentence. Refusing to credit Lamar for the time he spent on the original charge of aggravated battery as a habitual criminal also comports with the holding in State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985). …
From that time on [after sentencing on an earlier charge], Beets was in prison serving an imposed and unchallenged sentence; and whether he was also awaiting trial on the burglary charge was irrelevant, because his freedom from confinement—his right to be at liberty—was not in any way related to the viability of the burglary charge.
Id. at 379. The trial court was empowered to impose a consecutive sentence pursuant to Wis. Stat. § 973.15(2). [3] Under these circumstances, Wis. Stat. § 973.04 does not obligate the trial court to credit Lamar with the time he already served.
That analysis seems to suggest that the imposition of a prison sentence severs any right to credit as to pending charges, but that doesn’t seem to be the basis for the holding; instead, the operative principle is found in State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), namely that credited is awarded against only one of consecutive sentences, §11.
¶12      To embrace Lamar’s claim that when a person is serving two or more sentences, and one is vacated and a new sentence is imposed, the trial court is always obligated to credit his sentence for time spent serving the original sentence, would effectively prohibit the later sentencing court from imposing a consecutive sentence. We do not believe this conclusion is consistent with current law. We are satisfied that under these unique circumstances Lamar received all the sentence credit to which he was entitled.
Sentence Credit - Consecutive Sentences
State v. Thomas W. Jackson, 233 Wis.2d 231, 607 N.W.2d 338
For Jackson: Martha K. Askins, SPD, Madison Appellate
Issue: Whether a defendant is entitled to sentence credit on each consecutive sentence.
Holding: Credit is allotted only toward the first of consecutive sentences.
Analysis: While on probation in Fond du Lac, Jackson was arrested on new charges in Dodge, where he was held on both the new charges and a probation hold. He was convicted and sentenced on the Dodge case, and received sentence credit from the date of arrest (and probation hold). He was then convicted on the Fond du Lac case, and got probation with a withheld sentence. He was later revoked and sentenced, by which time he'd already discharged the Dodge sentence. The question is whether he's entitled to credit in the Fond du Lac case for time spent (and credit already received) before revocation in the Dodge case. The court says no. The issue was reserved by State v. Beets, 124 Wis. 2d 372, 378 n.5, 369 N.W.2d 382 (1985), and is controlled by the rationale of State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), which holds that credit can't be given to more than one of consecutively imposed sentences. Jackson's Fond du Lac sentences were not made explicitly consecutive, but the court deems them to be consecutive in effect, because the Dodge sentence had been completed at the time of Fond du Lac sentencing. Because he received full credit for the time at issue in the Dodge case, awarding this credit to the Fond du Lac case would amount to impermissible "dual credit for the same custody."
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Sentence Credit -- Consecutive Sentences -- Allocation to First Sentence
State v. Paul L. Wolfe, 2001 WI App 66, 242 Wis. 2d 426, 625 N.W.2d 655
For Wolfe: Gary Seeling
Issue: "The basic question before us is whether a court, in a multiple count conviction where one sentence is imposed and another stayed, must apply sentence credit to the conviction of the first imposed sentence." ¶1.
Holding:
¶1. … We hold that it must under the rule of State v. Boettcher, 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988), and State v. Rohl, 160 Wis. 2d 325, 330, 466 N.W.2d 208 (Ct. App. 1991)....

¶7 Here, the trial court clearly expressed its intention to make Wolfe serve the maximum amount of time possible on his burglary sentence. To ensure this result, the trial court applied the 331 days of credit to which Wolfe was entitled to the imposed and stayed sentence. If Wolfe successfully completes his probation on the second count, the benefit of the credit will never have accrued to him. Since the possible effect of this action would be to nullify the 331 days of credit, we view this result as a 'clear abuse of discretion' under Struzik.

¶8 We further instruct that the Judicial Benchbook, and its citation to the Wilson case, should not be construed to allow allocation of sentence credit to the second imposed sentence. To the extent that Wilson suggests the trial court can choose which of two consecutive sentences will receive credit, we hold that Boettcher-at least sub silentio-overruled the language in Wilson which indicates that the trial court has a choice in the matter.

Sentence – Credit, “Non-Exclusive” Custody under Wisconsin Warrant in Foreign Jurisdiction
State v. Patrick C. Carter, 2007 WI App 255, (AG’s) PFR granted
For Carter: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶2        We conclude that, because Carter was arrested and confined in Illinois under a Wisconsin fugitive warrant issued in this case, he was entitled to sentence credit on this concurrent sentence from the date he was arrested in Illinois until the date he was sentenced on the Illinois charge. We reject the State’s argument that, because he was not exclusively in custody on the Wisconsin charge, he was not entitled to sentence credit for the time he was in custody in Illinois. Accordingly, we reverse and remand with directions to the circuit court to grant 227 additional days of sentence credit.
Simple enough; but getting to that conclusion holds some interest. Highlights: the JI-SM comes to a different conclusion, one the court now rejects, ¶25; prior caselaw denied credit for time spent under a “detainer”—reaffirmed here—but such a document is critically distinguishable from a warrant, ¶18; narrow construction, by State v. Marcus W. Johnson, 2007 WI 107, of § 971.155 “in connection with” language is, well, itself narrowly limited to the discrete factual setting, and in particular does not “appl[y] where a defendant is seeking credit on a concurrent sentence for time spent in custody on both charges,” ¶29. The concluding paragraph efficiently summarizes the holding:
¶30      We further conclude that the principle applied in Ward and stated in Boettcher and Rohl applies in this case—that when a defendant is in custody, presentence, on two separate charges and the sentences are concurrent, the defendant is entitled to sentence credit against each sentence. Although in Ward the sentences were imposed at the same time, the State has provided no reason, and we see none, why the same rationale does not apply when one sentence is imposed after the other, but is made concurrent to the first sentence. Nor do we see any reason why the fact that the custody is in another state makes a difference, as long as the defendant receives credit only for the time in custody on the Wisconsin charge against the Wisconsin sentence. The State has offered no authority or rationale for a distinction based on in-state or out-of-state custody, other than Section IIIA4, and we have concluded that is not persuasive. Finally, we observe, as both parties here recognize, that, consistent with Beets, there is no credit for time after the defendant begins to serve a sentence on the other charge.
Sentence – Credit, § 973.15(5) – Service of Sentence Imposed by and in Another Jurisdiction While Under Wisconsin Sentence
State v. Kevin Brown, 2006 WI App 41
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: A defendant whose sentence after revocation was ordered to be served at Dodge Correctional but who was then transferred to federal authorities on pending charges is entitled under § 973.15(5) to credit against the Wisconsin sentence for time spent in federal custody before actually being sent to Dodge:
¶11      Addressing the issue of sentencing credit, unlike the State, we do not find either Wis. Stat. §§ 973.10(2)(b) or 973.155 dispositive. Whether Brown entered a Wisconsin prison before starting his federal sentences, or whether his federal sentences “were in connection with the course of conduct for which sentence was imposed” is not the correct test. The question to be answered is whether Brown falls within the ambit of Wis. Stat. § 973.15(5), which is the specific statute governing this case. We conclude that he does. Section 973.15(5) reads: “A convicted offender who is made available to another jurisdiction under ch. 976 or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155 for the duration of custody in the other jurisdiction.” Here, there can be no argument that Brown was a “convicted offender” at the time the State made him available to the federal courts. [6] … Therefore, § 973.15(5) dictates that Brown be given sentencing credit for the “duration of custody in the other jurisdiction.” …
 [6]   The State’s position, that Brown must have physically crossed the threshold of Dodge Correctional Institute in order to be eligible for sentencing credit under Wis. Stat. § 973.15(5), is not only harsh and unjust, as Brown had no control over where he was housed, but, more importantly, is a total misreading of the statute, which merely requires that the person be “[a] convicted offender who is made available to another jurisdiction.” There is no requirement in the statute that the person must have entered the state prison in order to trigger his or her entitlement to credit under § 973.15(5).
Note that this appeal isn’t based on a § 973.155(5) sentence credit petition, but instead a § 974.06 motion (¶7). All’s well that ends well, but the court of appeals doesn’t discuss why § 974.06 is the correct way to raise such a claim. The court’s grant of relief is certainly implicit ratification of using § 974.06, but no more than that. By express terms, § 974.06 allows attack on a theory that sentence was imposed in violation of the constitution “or laws of this state” or that the court was without jurisdiction to impose the sentence, or that the sentence exceeded the permissible maximum or is otherwise subject to collateral attack. If limited to the imposition of sentence, these possibilities don’t seem to apply to Brown, whose problem is with the way the sentence was executed, not imposed. However, Brown’s theory was that “his continued service of his Wisconsin sentence renders it ‘in excess of the maximum authorized by law … otherwise subject to collateral attack.’” Maybe. However, a similar argument was rejected in State v. Johnson, 101 Wis. 2d 698, 702-03, 305 N.W.2d 188 (Ct. App. 1981), which held “that a motion under sec. 974.06, Stats., is ineffective to test the legality of a prisoner's detention on the ground of an allegedly improper method of computing good time credit”:
Johnson claims the right to be released earlier than when the Department says he may be released. He does not attack the trial court's imposition of his sentence on any ground, much less on jurisdictional or constitutional grounds. He attacks the execution of his sentence rather than its imposition.

Further, the relief available under sec. 974.06, Stats., is limited by the statutory language to vacating, setting aside or correcting a sentence. In the present case, the relief Johnson seeks is very different from that available under the statute. He seeks an order compelling the Department to compute his good time credit in a particular manner.

Our interpretation of sec. 974.06, Stats., is supported by federal court opinions interpreting 28 U.S.C. § 2255 "which is substantially identical to sec. 974.06, Stats. . . ." Langston, 53 Wis.2d at 231, 191 N.W.2d at 715.  The federal courts have consistently held that 28 U.S.C. § 2255 does not grant jurisdiction over a post-conviction claim attacking the execution rather than the imposition or illegality of a sentence. Thompson v. United States, 536 F.2d 459, 460 (1st Cir. 1976). The proper vehicle for attacking the execution of a sentence is a habeas corpus proceeding. Id.

In the present case, the correct procedure for Johnson to test the legality of his detention pursuant to the Department's computation of his good time credit would be to petition under sec. 782.03, Stats., for a writ of habeas corpus.

Perhaps the court is now saying that unlike good-time credit, sentence credit involves imposition rather than execution of sentence. Such a distinction seems rather strained. But it is either that or that the court in Brown overlooked the potential problem or that the court in Johnson overstated the nature of the obstacle. If such a stumbling block is thrown in your path, then if nothing else you would be able to utilize habeas as a remedy. Keep in mind, too, that § 973.15(5) mandates the grant of credit “under the terms of s. 973.155,” which arguably evinces a legislative intent that the petition-for-credit mechanism under § 973.155(5) can be utilized.
Sentence credit - As Means to Satisfy Court-Ordered Costs
State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05
For Baker: William E. Schmaal, SPD, Madison Appellate
Issue/Holding: Sentence credit may not be used to satisfy court costs, where costs were imposed under provisions which do not grant authority to waive or otherwise avoid their imposition. ¶¶11-13.
Sentence credit - Delayed Report Date Due to Jail Overcrowding
State v. Anthony J. Dentici, Jr., 2002 WI App 77, PFR filed 2/5/02
For Dentici: Joseph E. Redding
Issue/Holding:
¶1 … Dentici claims that he is entitled to twenty-five days’ credit pursuant to State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), because, after being sentenced to sixty days at the House of Correction as a condition of probation, he was unable to serve his sentence due to overcrowding. Because of the holding in Riske, that a person who is absent from jail through no fault of his own is entitled to sentence credit, we are compelled to reverse the order denying Dentici’s motion for reconsideration, and remand the cause with directions to credit his sentence for the period of February 3, 1997, to February 28, 1997.
As suggested, Dentici reported to HOC on 2/3, and was turned away because of overcrowding, until 2/28. ¶2. The opinion stresses “that Dentici was sentenced on February 3, 1997 -- a sentence that necessarily commenced with the Sheriff’s delivery of Dentici to the House of Correction.” ¶10. In other words , the court didn’t stay the sentence to a later date. It was also significant that Dentici was given a specific return date; the opinion likens his situation to “leave for a temporary period of time.” ¶11. The implication, though, is exposure to an escape charge for failure to return as specified. ¶12. Note, too, that this was time served as a condition of probation -- credited against a post-revocation sentence.

UPDATE: What, though, of the separate but somewhat related problem of entitlement to credit where the authorities mistakenly release the inmate? See, e.g., Thompson v. Cockrell, 263 F.3d 423 (5th Cir. 2001) ("We conclude that Thompson has a liberty interest in the calendar time following his erroneous release, which entitles him to the procedural protections set forth in Wolff."). Indeed, there seems to have been a common law rule that a defendant is entitled to credit for time spent at liberty after "erroneous" release, on the theory that a prisoner can't be forced to serve the sentence "in installments." See, e.g., Little v. Holder, 11th Cir No 03-13134, 1/18/05. And, Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994):

... There is, however, a common law rule, which has been held applicable to federal sentencing, that unless interrupted by fault of the prisoner (an escape, for example) a prison sentence runs continuously from the date on which the defendant surrenders to begin serving it. The government is not permitted to delay the expiration of the sentence either by postponing the commencement of the sentence or by releasing the prisoner for a time and then reimprisoning him. The government is not permitted to play cat and mouse with the prisoner, delaying indefinitely the expiation of his debt to society and his reintegration into the free community. Punishment on the installment plan is forbidden. ...
Useful survey, in Vega v. U.S., 3rd Cir No. 05-5105, 7/11/07, agreeing with Dunne that right to credit is rooted in common law, not constitutional imperative, and ultimately concluding:
Therefore, in order for a prisoner to receive credit for time he was erroneously at liberty, the prisoner’s habeas petition must contain facts that demonstrate that he has been released despite having unserved time remaining on his sentence. Once he has done this, the burden shifts to the government to prove either (1) that there was no negligence on the part of the imprisoning sovereign, or (2) that the prisoner obtained or retained his liberty through his own efforts.
But that rule doesn't apply where service of sentence "has merely been delayed .. because a delay in the commencement of a sentence does not, by itself, constitute service of that sentence," id., citing U.S. v. Barfield, 11th Cir No 03-14077, 1/14/05 (failure to execute sentence for 8 years (!) didn't create entitlement to sentence credit). Assuming that this view of the common law (distinguishing between erroneous release and delay) is correct, then it might be said that the Riske-Dentici line of authority is at odds with common law; but the Wisconsin cases are based on statutory analysis, and therefore shouldn't be in danger of being unsettled.

Interesting survey of authorities, and novel result, may be found in Commonwealth v. West, 2005 PA Super 61, ¶16 ("general common law rule that 'where a final sentence of imprisonment had been rendered, delay in executing such a sentence did not preclude a subequent enforcement of the sentence,'" quoting Commonwealth v. Blair, 699 A.2d 738, 741 (Pa. Super. 1997)). The court notes that this rule has somewhat softened under the weight of the recently recognized exceptions of waiver and estoppel; but as defined these exceptions seem very narrow and rarely likely to be satisfied. In any event, West specifically disdained reliance on waiver, estoppel, or credit-for-time-at-liberty theories and the court thus doesn't apply them to the particular facts, ¶18. Instead, the court finds a substantive due process violation where "the trial court recommitted Appellant to prison in 2002 following a 9-year delay in which Appellant remained mistakenly at liberty on an appeal bond," ¶1. The court carefully stresses, though, that the court system "on several occasions during the 9-year interval recognized the mistake, yet repeatedly failed to act," id., and see also ¶22. The result is probably therefore quite fact-specific -- as illustrated by Bonebrake v. Norris, 8th Cir No. 03-4012, 8/9/05 (delay of 4+ years in executing sentence, following unsuccessful appeal, didn't warrant relief against sentence; court apparently limits "waiver theory of jurisdiction" to "conscience-shocking" acts amounting to denial of substantive due process).

Sentence credit - DIS confinement.
State v. Timothy L. Olson, 226 Wis.2d 457, 595 N.W.2d 460 (Ct. App. 1999).
For Olson: Steven P. Weiss, SPD, Madison Appellate.
Holding: Olson was revoked after being on DIS. At sentencing after revocation, DOC recommended that Olson be given credit for DIS confinement on home detention. The trial court denied the request. Olson appeals, and the court of appeals affirms. The court holds, first, that determination of credit is the sentencing court's, not DOC's, responsibility. (This, in response to Olson's argument that § 973.155(2) delegates that authority to DOC.) Second, the court holds that Olson isn't entitled to credit because "he was not locked in the home at night."
Go To Brief
Sentence Credit - Electronic Monitoring
State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02
Issue: Whether the revoked probationer was entitled to sentence credit for time spent on electronic monitoring while on probation.
Holding: Because the probationer could not have been charged with escape for leaving electronic monitoring, he isn't entitled to sentence credit for the time he spent on electronic monitoring. ¶¶31-33.
Sentence Credit - Extended Supervision Hold
State v. Terrill J. Hintz, 2007 WI App 113, (AG’s) PFR granted 9/11/07
For Hintz: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding: Where an extended supervision hold is based at least in part on arrest on a new offense, § 973.115(1)(a) awards credit for time spent in custody under the hold against the sentence ultimately imposed for conviction of that offense.
Note that it does not matter that a signature bond was issued for the new offense:
¶11      Finally, the State argues that Hintz was not in custody in connection with the burglary because he was released on signature bond with respect to charges in that matter during the disputed time period. Thus, the State argues, Hintz was in custody solely for the extended supervision hold, which was based on his original OMVWI conviction. However, just because a judicial officer released Hintz on a signature bond does not mean that Hintz’s agent could not take the alleged behavior into account when placing the hold. Thus, we conclude that our interpretation of Wis. Stat. § 973.155(1) as allowing sentence credit for time in custody that is in part due to the conduct resulting in the new conviction resolves this issue.
The court also reminds that credit accrues up to, not after, reconfinement, ¶7 n. 3:
Hintz concedes that after he was sentenced on July 19, 2004, following his extended supervision revocation, any connection between his custody and the new crime was severed. " See State v. Beets, 124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985). Hintz therefore seeks sentence credit only until his reconfinement on his OMVWI conviction.
Keep in mind, though, that Beets is probably limited to its factual context, State v. Martin V. Yanick, Jr.,, 2007 WI App 30, ¶22:
¶22      To the extent the State is suggesting that Beets holds that service of a sentence on crime A always “severs” time in custody owing to crime B for purposes of awarding sentence credit on the sentence for crime B, we disagree. Beets addressed a particular type of status—time in custody serving a sentence and awaiting disposition on a separate crime. Beets does not address service of a sentence and concurrent service of custody time pursuant to a disposition, which is the sort of concurrent custody time at issue here.
And compare, State v. Lee Terrence Presley, 2006 WI App 82, ¶13 (further limiting Beets, in the sense that mere fact of revocation isn’t enough to sever connection; instead, reconfinement must be imposed: “an offender who has had his or her extended supervision revoked is entitled to sentence credit on any new charges until the trial court ‘resentences’ him or her from the available remaining term of extended supervision”).
Sentence Credit - Time Spent in Custody after Extended Supervision Revocation but before Reconfinement Hearing
State v. Lee Terrence Presley, 2006 WI App 82
For Presley: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:   Sentence credit is required for for days spent in jail between dates of revocation of extended supervision in an earlier case and sentencing on both the revoked supervision and a new case.
¶10      Presley submits that Beets requires sentence credit until the day he was sentenced for the extended supervision revocation—the same day he was sentenced on the new charge—because like the offender in Beets, whose probation was revoked, he did not begin serving a sentence for the earlier crimes until the trial court sentenced him. The State insists that because of the passage of the truth-in-sentencing act, applying the Beets holding entitles Presley to credit on the new charge only for the time between the date of his arrest and the date of his extended supervision revocation because, once the extended supervision was revoked, he was serving a sentence, although its exact length was unknown.  More precisely, the State argues in its brief:  “In this case, Presley was sentenced in 2002, and served his term of initial confinement. He was serving his extended supervision, when he was arrested. When his extended supervision was subsequently revoked, Presley had been revoked and sentenced.” The State attempts to circumvent the Beets holding by claiming that the reconfinement hearing was not a sentencing.  However, whether a reconfinement hearing constitutes a “sentencing” was resolved in State v. Swiams, 2004 WI App 217, 277 Wis. 2d 400, 690 N.W.2d 452. While Swiams addressed a different issue not touching on sentence credit, the case established that a reconfinement hearing is a form of sentencing. ... Thus, a reconfinement hearing is a “sentencing,” and under Beets, it, not the revocation, severs the connection between the charges.

...

¶13      ... Thus, an offender who has had his or her extended supervision revoked is entitled to sentence credit on any new charges until the trial court “resentences” him or her from the available remaining term of extended supervision.

Of course, credit on both the ES and the new sentence is contingent on their being concurrent, as the court stresses, ¶15, citing  State v. Tuescher, 226 Wis. 2d 465, 469, 595 N.W.2d  443 (Ct. App. 1999). Note, too, Judge Fine’s concurrence, which expresses concern about "read(ing) more into State v. Swiams, 2004 WI App 217,  277 Wis. 2d 400, 690 N.W.2d 452, than is there." He would apparently limit Swiams to its facts, namely that a reconfinement hearing is a "sentencing" for purposes of triggering Rule 809.30 postconviction review procedure,  ¶¶16-17. Rights at sentencing are relatively limited anyway – rules of evidence, for example, don’t apply – so it’s not clear just how far Judge Fine would lower the bar. However, his concurrence highlights the idea that reconfinement procedure isn’t yet settled.
Sentence Credit - Home Detention
State v. Paul E. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, reversing unpublished decision
For Magnuson: Keith A. Findley, UW Law School
Issue: Whether a defendant is entitled to sentence credit for time spent in home detention with electronic monitoring as a condition of bond.
Holding: Custody for sentence credit purposes is determined by whether the defendant's status subjects him/her to an escape charge and, because home detention as a bond condition did not satisfy that test, Magnuson is not entitled to credit.
Analysis: Magnuson was released on a signature bond, conditioned on a curfew requiring him to be inside a home overnight, while wearing an electronic bracelet to ensure compliance. ¶¶5-6. He seeks credit against his sentence for the preconviction time he spent in this home detention. Eligibility for sentence credit is regulated by Wis. Stat. § 973.155, which requires " custody." The supreme court has previously held that "custody" in this statute "corresponds to the definition of custody in the escape statute, Wis. Stat. § 946.42. ¶13. The court of appeals deviated from that bright-line test, in favor of case-by-case analysis. State v. Collett, 207 Wis. 2d 319, 324-25, 558 N.W.2d 642 (Ct. App. 1996). The court now rejects Collett's approach, in favor of the following bright-line rule: "for sentence credit purposes an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status." ¶25. The court adds however, that " custody" isn't narrowly cabined by the definition in the escape statute, § 946.42. Certain statutes expressly authorize escape charges based on flight from monitored situations: these "statutes provide additional reference points for circuit courts in determining whether a defendant is in custody for sentence credit purposes." ¶30. (This holding seems to overrule prior case law. Id., n. 7.) Application of this test to Magnuson results in denial of credit. Violation of his bond conditions would not have subjected him to escape, though they may have been similar to programs that would have. Home detention may entitle the defendant to credit, when ordered by a sheriff, a superintendent, or DOC, under § 302.425, but Magnuson's status was different. ¶38.
Sentence Credit - Juvenile Commitment, Pending Adult Sentence
State v. Marcus W. Johnson, 2007 WI 107, on certification
For Johnson: Brian C. Findley, SPD, Madison Appellate
Issue: Whether a juvenile is entitled to sentence credit for time spent in custody under juvenile commitment or extension of the commitment, pending his conviction and sentencing on an adult charge of battery while in the juvenile institution under the commitment.
Holding:
¶9        Applying Beets sentence credit principles, we hold that Johnson is not entitled to sentence credit on the adult battery charge because the time he spent in custody between his arrest and his sentence was not custody "in connection with" the adult battery.  First, Johnson is not entitled to credit for time in custody from his arrest to the May 6, 2003, extension hearing in the juvenile court because, during that period, Johnson was subject to a juvenile commitment order based entirely on conduct preceding and unrelated to the adult battery.  Therefore, under Beets, Johnson's 2002 extension of his juvenile commitment precluded any connection to the later adult battery.  Second, Johnson is not entitled to credit for time in custody from the May 6, 2003, extension of his juvenile commitment up to the time of sentencing because, even though the adult battery was a factor in the juvenile court's decision to extend Johnson's juvenile supervision for another year, the circuit court (Judge Flanagan) determined that the juvenile court (Judge Nicks) would have extended Johnson's supervision even if that battery had never occurred.  Therefore, Johnson's time in custody from the extension hearing to the time of sentencing was not in connection with the adult battery.

¶62      On a preliminary note, it should be understood that, to some extent, Beets does not rest on all fours with the facts of this case.  The Beets rule——that a sentence on one offense severs any connection with custody on an unrelated offense——applies neatly in situations where the two sentences are based on decidedly different courses of conduct.

¶63      Therefore, the Beets rule applies neatly in this case to the period of time after Johnson's arrest up until the May 6, 2003, extension hearing.  During that time, Johnson was already in custody as a result of