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Court of appeals affirms reduction of sentence credit, scolds counsel for appellant and respondent

State v. Lance P. Howard, 2017AP677-688-CR, 2/21/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

How to irritate the court of appeals. If you haven’t figure that out yet, read this opinion. 

Howard was sentenced to 1 year of initial confinement and 1 year of extended supervision for a misdemeanor in one case.  He received the same sentence for each of 2 misdemeanors in a 2nd case. The latter sentences ran concurrently to each other but consecutively to the 1st case.  He also received a substantial amount of sentence credit until the DOC wrote to the court. This prompted the court to slash the amount of credit without a hearing attended by Howard. The credit in one case dropped from 572 days to 365 days and in from 678 days to 312 days. Howard appealed.

The court of appeals found his lawyer’s argument “difficult to follow and insufficiently developed. We could reject it on that basis alone. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (‘We may decline to review issues inadequately briefed.’).” In some parts of his initial brief it seems he was arguing that the circuit court violated due process by cutting his sentencing credit without holding at hearing with him present.  Opinion ¶1 n.2  In other parts he seemed to be arguing that when the circuit court reduced his sentence credit it erroneously ran the sentence from the 2nd case consecutively to the 1st.  Opinion ¶7. The court of appeals declined to address the due process argument because it was not developed. It rejected the 2nd argument because the record proved that the circuit court always intended to run the sentences for Howard’s 2 cases consecutively.

How to irritate the judge who will decide your client’s fate:

  • Identify an issue but then argue something else. Opinion ¶1 n.2
  • Present an argument that is undeveloped and difficult to understand. Opinion ¶7
  • Fail or forget to file a reply brief. Opinion ¶8.
  • Dispense with citations to the record. Opinion ¶6 n.5
  • File an appendix with documents that are not in the appellate record. Opinion ¶6 n.5

The State committed those last two transgressions, and here’s what the court of appeals had to say about them:

We note that the State inappropriately includes documents in its appendix that are not part of the record, and in doing so presents us with new substantive facts presumably not presented to the circuit court. An appellate court’s review is confined to those parts of the record made available to it. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992); see also Reznichek v. Grall, 150 Wis. 2d 752, 754 n.1, 442 N.W.2d 545 (Ct. App. 1989) (“The appendix may not be used to supplement the record.”). Additionally, the State fails to develop an argument supported by legal authority for a contention it makes that Howard “forfeited or abandoned his appeal” because of “absconding.” See W.H. Pugh Coal Co. v. State, 157 Wis. 2d 620, 634, 460 N.W.2d 787 (Ct. App. 1990) (we do not consider arguments unsupported by legal authority). Finally, the State fails to adequately support its background facts with citations to the record as required by WIS. STAT. RULE 809.19(1)(d). We would appreciate all future briefs contain “appropriate references to the record,” see id., and not include matters outside the record




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