State v. Paul J. Williquette, 2013AP2127-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

What happens when a restitution award is twice the victim’s actual repair costs? In this case, not much. Williquette was ordered to pay restitution based upon State-submitted repair estimates.  Later, he moved for sentence modification claiming the actual (and lesser) amount the victim paid for repairs was a “new factor” justifying a reduced restitution award.  The COA held that by not challenging the estimates at sentencing, Williquette stipulated to their reasonableness and that the actual repair costs did not amount to a “new factor.”

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State v. Neil A. Morton, 2013AP2366-CR, District 4, 4/17/14 (1-judge; ineligible for publication); case activity

This is another OWI case holding that a warrantless blood draw that would now be unlawful under Missouri v. McNeely is admissible under the good-faith exception to the exclusionary  rule.

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State v. Dennis R. Armstrong, 2013AP1995-CR, District 4, 4/10/14; court of appeals decision (recommended for publication); case activity

The fact that Armstrong was entitled to eight months rather than approximately two years of sentence credit is a “new factor” because the information was unknowingly overlooked at sentencing and the amount of sentence credit was highly relevant to the circuit court’s imposition of the sentence:

¶13      At the sentencing hearing, Armstrong’s trial counsel told the circuit court that Armstrong was entitled to “two years something” of sentence credit. The prosecutor did not object to this statement, but rather stated: “We would have to stipulate to that amount.” The court’s statement, “[s]ure would be helpful if the court knew what the credit time is,” demonstrates that the court was not otherwise aware of the amount of sentence credit to which Armstrong was entitled at the time of the sentencing. The prosecutor’s and defense counsel’s each answering “Yes” to the court’s query, “You have not got it figured out? It is considerable if it is approaching two years[,]” confirms that the parties and the court at that point believed that Armstrong was entitled to approximately two years of sentence credit. These exchanges at the sentencing hearing demonstrate that the fact that Armstrong was entitled to only eight months of sentence credit was “unknowingly overlooked by all of the parties.” Rosado [v. State], 70 Wis. 2d [280,] 288[, 234 N.W.2d 69 (1975)].

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¶16      We agree with Armstrong that the amount of sentence credit to which Armstrong was entitled was a factor “highly relevant to the imposition of [the] sentence.” Rosado, 70 Wis. 2d at 288. Throughout the sentencing hearing, the circuit court pointedly and repeatedly drew attention to the amount of sentence credit to which Armstrong would be entitled, and made clear why the topic was important to the court. The court made statements that included the following: “We need to get [the sentence credit] figured out,” and “[H]ow does [sentence credit] calculate in.” The court noted that the sentence credit would be “considerable if it is approaching two years.” And finally, the court explained: “You know, you [Armstrong] have a lot of credit. The time that you are going to be serving in confinement is not going to be long.” The court’s repeated references to sentence credit were consistent with the court’s stated intent that Armstrong “serve some confinement time” that “is not going to be long” in order to give Armstrong a chance to “show that absolutely this is the last time that I [Armstrong] am going to be doing stuff like this.”

Because Armstrong has shown a new factor, the case is remanded for the circuit court to determine whether the new factor justifies modification of the sentence. (¶¶10, 33).

In addition to its grant of relief, the decision is notable for its discussion of Struzik v. State, 90 Wis. 2d 357, 279 N.W.2d 922 (1979).  (¶¶21-31). Struzik was entitled to fourteen days of sentence credit and was sentenced to five years, fourteen days in prison. Struzik, 90 Wis. 2d at 367. The supreme court reversed the sentence, saying “the trial court should first determine an appropriate sentence, then determine the time spent in preconviction custody, and finally credit that time toward the sentence imposed.” Id. The state argues Struzik establishes a rule that a judge can’t consider the amount of sentence credit before deciding the sentence to be imposed; therefore, if Armstrong’s sentence credit was highly relevant to the sentence, then the sentence (and any modification based on correct information about credit) violates Struzik. (¶19).

After considering Struzik in light of the law governing sentence credit and the clarification provided by cases interpreting it, the court concludes it addresses a “clearly defined problem: a court acting with the improper purpose of depriving a defendant of sentence credit by enlarging the sentence.” (¶27). When that clearly defined problem isn’t present, Struzik‘s statement about determining the sentence before addressing credit is not a strict requirement. (¶27). Moreover, other cases, e.g.State v. Gallion, 2004 WI 42, ¶43 n.11, 270 Wis. 2d 535, 678 N.W.2d 197, expressly recognize that the length of pretrial detention is a factor a court may consider when determining the sentence. Thus, the state’s narrow reading of Struzik is incorrect. (¶21).

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Trial counsel’s exchange with trial court about a misstatment of fact in a suppression motion didn’t create conflict of interest or establish judicial bias

April 10, 2014

State v. Marcos Ordonia-Roman, 2012AP1371-CR, District 1/4, 4/10/14; court of appeals decision (not recommended for publication); case activity In a motion to suppress Ordonia-Roman’s confession, trial counsel alleged that during his interrogation Ordonia-Roman was without a required medication and was not allowed to take the medication. At the suppression hearing, however, Ordonia-Roman testified he had […]

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General summons statute for ch. 48 doesn’t provide basis for grandparents to intervene in CHIPS proceeding

April 10, 2014

Renee B. v. Dane County DHS, 2013AP2273, District 4, 4/10/14; court of appeals decision (1-judge; ineligible for publication); case activity A circuit court’s decision to give grandparents notices of CHIPS hearings under the ch. 48 summons statute, § 48.27(2), doesn’t mean the grandparents have the right to intervene in the proceeding. […]

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Court of Appeals clarifies prejudice standard for plea withdrawal motions under Padilla v. Kentucky

April 9, 2014

State v. Ivan Mendez, 2013AP1862, District 2, 4/9/14; court of appeals decision (recommended for publication); case activity When Mendez pleaded guilty to maintaining a drug trafficking place his attorney failed to inform him that a conviction for charge would subject him to automatic deportation from the United States with no applicable exception and […]

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Statutory summary suspension from Illinois counts as prior conviction under § 343.307(1)

April 9, 2014

State v. Akil C. Jackson, 2013AP1282-CR, District 2, 4/9/14; court of appeals decision (recommended for publication); case activity Under State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, Jackson’s statutory summary suspension in Illinois resulting from an OWI and PAC citation counts as a prior conviction under […]

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Court of Appeals addresses burden of proof for determining competency during postconviction proceedings

April 9, 2014

State v. Roddee W. Daniel, 2012AP2692-CR, District 2, 4/9/14; court of appeals decision (recommended for publication); case activity When postconviction counsel questions a defendant’s competency to understand his or her § 809.30 appellate rights or ability to effectively communicate with counsel but the defendant asserts he or she is competent, defense […]

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Trial court erred in relying on the abrogated “interlocking confession” doctrine to deny severance of co-defendants’ trials

April 9, 2014

State v. John M. Navigato, 2012AP2108-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity State v. Teddy W. Bieker, 2012AP2693-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity The circuit court, relying on the district attorney’s assertion of the so-called […]

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Police had probable cause to arrest for eluding and OWI

April 9, 2014

State v. Marcus Norfleet, 2013AP2294-CR, District 2, 4/9/14; court of appeals decision (1-judge; ineligible for publication); case activity Police had probable cause to arrest Norfleet for both eluding and operating while intoxicated under the totality of the facts and circumstances available to the officer at the time of arrest. After an […]

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