Abuse of Discretion – Sentencing Guidelines

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kenneth L. Risch

Case No.: 2019AP2027-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Sentencing Guidelines

Kenneth Risch appeals a judgment convicting him of second-degree sexual assault of a child, as a repeater, and an order denying his motion for postconviction relief. After revocation of his probation, Risch was sentenced to five years’ initial confinement and seven years’ extended supervision. On appeal, Risch argues the circuit court erroneously exercised its discretion when imposing that sentence because it relied on improper factors—specifically, compelled statements that Risch made to his probation agent and a treatment provider, as well as information derived from those compelled statements. Risch also argues his trial attorney was ineffective by failing to object to the court’s consideration of the compelled statements and derivative information.

We conclude Risch has failed to establish that the circuit court actually relied on any compelled statements or information derived from compelled statements when imposing his sentence after revocation. Accordingly, Risch has failed to show that the court actually relied on any improper factors. Consequently, Risch’s trial attorney was not ineffective by failing to object during his sentencing after revocation hearing. We therefore 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.