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Sufficiency of Evidence Review; Reverse Waiver; Sentence – Exercise of Discretion

State v. Carl Morgan, 2009AP74-CR, District III, 7/20/10

court of appeals decision (3-judge, not recommended for publication); for Morgan: Ralph Sczygelski; BiC; Resp.; Reply

Sufficiency of Evidence Review

Review of a denied motion for dismissal at the close of the prosecutor’s case-in-chief is waived where the defendant proceeds to put in a defense. All the evidence, including the defense presentation, is then reviewed on a challenge to sufficiency of proof. ¶5, citing State v. Kelley, 107 Wis. 2d 540, 544, 319 N.W.2d 869 (1982). (Thus, Morgan’s claim of lack of proof he was the shooter necessarily fails, given his testimony admitting that he was.)

Reverse Waiver

¶7 The circuit court’s reverse waiver determination involves an exercise of discretion.  State v. Verhagen, 198 Wis. 2d 177, 191, 542 N.W.2d 189 (Ct. App. 1995). …

¶10 While, as the State concedes, a sentencing decision with this level of detail might be considered inadequate under State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, this is not a sentencing case subject to Gallion. Morgan cites no authority requiring a more detailed explanation from the court than that provided here. The court stated it relied on the testimony it heard at the two-day reverse waiver hearing in reaching its conclusion. The court also demonstrated it was fully engaged in the proceeding by directly questioning witnesses and otherwise participating actively in the hearing. Thus, we are satisfied the court fully considered the legal question and factual evidence before it. The court applied the proper legal standard and came to a conclusion a reasonable judge could reach. SeeState v. Keith, 216 Wis. 2d 61, 69, 573 N.W.2d 888 (Ct. App. 1997).

Sentence – Exercise of Discretion

Sentence of 55 years confinement, 30 years supervision (against a potential maximum of 87.5 confinement, 45 supervision) was an appropriate exercise of discretion, where the court weighed appropriate factors and determined that rehabilitation took a back seat to public protection and offense severity, ¶17.

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