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State v. Matthew R. Steffes, 2012 WI App 47, WSC review granted 10/16/12

on review of published decisioncase activity

Issues (composed by On Point): 

1. Whether the evidence is sufficient to sustain conviction for conspiracy-theft by fraud, in that: no conspirator expressly made a false representation; and in any event, Steffes joined the conspiracy after it had already been set in motion.

2. Whether the evidence is sufficient to sustain conviction for a felony, in that the evidence failed to establish theft of at least $2,500.

3. Whether sentencing court reliance on Steffes’ alleged participation in a scheme (identity theft) for which the jury acquitted him violated his right to a sentence based on accurate information.

Usual caveat applies: petitions for review aren’t posted, so issue-formulation here assumes that the same issues raised in the court of appeal will be renewed in the supreme court. The validity of that assumption may be tested by checking out the briefs when they’re filed, at the case activity link above.

Steffes, a prison inmate (his hard-luck story is recited in his habeas appeal), “worked with individuals outside of the prison to operate a ‘burn-out’ telephone scam that allowed Steffes to place over 300 calls from prison without paying for them,” and eventually logged over 6500 minutes of free calls, costing the phone company over $26,000, COA slip op., ¶¶2, 6, 7. The court of appealsheld the proof sufficient to show that Steffes “not only discuss(ed) the burn-out scheme, but also instruct(ed) others on how to conduct the scheme,” with Steffes an “active participant” in the scheme. Steffes also argued that “for the crime of theft by fraud to be committed, there must be a false promise expressly made,” COA Br.-in-Ch., p. 19. The court of appeals rejected this claim, holding that “§ 943.20(1)(d) does not require direct evidence of—as Steffes argues—a false promise expressly made,” slip op., ¶29; whether Steffes renews this particular argument remains, as noted, to be seen.

As to the (assumed) sentencing issue, the court of appeals needed only to cite State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341, for the principle that “[a] sentencing court may consider uncharged and unproven offenses and facts related to offenses for which the defendant has been acquitted.Not clear whether this principle might be subject to reconsideration.

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