Sentence Modification

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Bobby L. McNeil

Case No.: 2019AP467-CR; 2019AP468-CR

Officials: Brash, P.J., Dugan and Donald, JJ.

Focus: Sentence Modification

Bobby L. McNeil appeals his judgments of conviction in two cases: the first case, where he was convicted of obstructing an officer; and the second case, where he was convicted of several counts of possession of controlled substances, obstructing an officer, and felony bail jumping. He also appeals an order denying his postconviction motion without a hearing.

McNeil argues that he is entitled to resentencing or sentence modification as a result of inaccurate information presented at his sentencing hearing relating to the presence of fentanyl in the cocaine he was charged with possessing. The trial court discussed this as an aggravating factor, even though the evidence presented at trial was that the fentanyl present in the sample tested was not sufficient for conclusive identification.

McNeil further argues that the trial court erroneously exercised its discretion in granting the State’s request for joinder of the two cases, and for admitting other-acts evidence relating to McNeil’s previous incidents of drug dealing. Additionally, McNeil argues that he received ineffective assistance of counsel based on his trial counsel’s failure to object to allegedly erroneously admitted character evidence. Furthermore, McNeil raises the issue of sufficiency of the evidence for his conviction on the drug possession charges in the second case.

We conclude that McNeil is entitled to resentencing due to the reliance of the trial court on inaccurate information regarding the presence of fentanyl in the cocaine McNeil possessed. We therefore reverse the order of the postconviction court and remand this matter for resentencing. As for McNeil’s other claims, we affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.