State v. Tommie L. Cole

Annotate this Case

Download PDF

2003 WI 59 SUPREME COURT CASE NO.: OF WISCONSIN 02-0681-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Tommie L. Cole, Defendant-Appellant. OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: ON CERTIFICATION FROM THE COURT OF APPEALS June 19, 2003 April 30, 2003 Circuit Milwaukee Richard J. Sankovitz JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the argument by defender. defendant-appellant there were briefs and oral Suzanne L. Hagopian, assistant state public For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general. 2003 WI 59 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-0681-CR (L.C. No. 01 CF 130) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUN 19, 2003 v. Tommie L. Cole, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant. APPEAL from an order denying postconviction relief. Reversed and remanded. ¶1 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE This is an appeal from an order of the circuit court for Milwaukee County, Richard J. Sankovitz, Judge, denying Tommie L. Cole's postconviction motion for resentencing or sentence modification. The case comes before this court on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (1999-2000).1 ¶2 On May 2, 2001, Cole, the defendant, pled guilty to being a party to the crime of delivering more than 15 grams but 1 All references to the Wisconsin Statutes are to the 19992000 version unless otherwise noted. No. not more than 40 grams of cocaine.2 02-0681-CR The offense occurred on January 5, 2001. ¶3 Delivering more than 15 grams but not more than 40 grams of cocaine was an unclassified felony at the time the defendant committed the crime, and Wis. Stat. § 961.41(1)(cm)3. provided that a person convicted "shall be fined not more than $500,000 and shall be imprisoned for not less than 3 years nor more than 30 years."3 Furthermore, when the defendant committed the crime his sentence was subject to the provisions in the first phase of Wisconsin's Truth in Sentencing legislation (TISI). Specifically, the defendant's sentence was subject to Wis. Stat. § 973.01, a statute enacted through TIS-I, requiring that the sentence be bifurcated such that a portion of the sentence include a term of confinement and a portion of the sentence include a term of extended supervision.4 ¶4 Wisconsin two phases. adopted Truth-in-Sentencing legislation in The first phase, TIS-I, was enacted in June 1998.5 The second phase, TIS-II, was enacted in July 2002.6 TIS-I applied to offenses committed on or after December 31, 1999. 2 Wis. Stat. §§ 961.16(2)(b)(1), 3 Wis. Stat. § 961.41(1)(cm)3. (emphasis added). 4 See 1997 Wis. Act 283, § 419. 5 See 1997 Wis. Act 283. 6 See 2001 Wis. Act 109. See 939.05. 2 961.41(1)(cm)3., No. TIS-II became effective February 1, 2003. 02-0681-CR TIS-I thus lasted for just over three years and has now been modified by TIS-II.7 ¶5 Both parties agree, and so do we, that the circuit court intended to sentence the defendant in the present case to the presumptive minimum Wis. Stat. § 961.41(1)(cm)3., sentence expressed in under the statutory language "shall be imprisoned for not less than 3 years." At sentencing, the circuit court stated: I do believe that it's appropriate to follow the presumptive minimum the Legislature has told us, and that is the law that the community has adopted that for somebody who is a drug dealer in this weight range, three years in prison is appropriate unless we believe that the public would be served or at least not harmed by departing from that minimum.8 ¶6 The circuit court Wis. Stat. §§ 961.41(1)(cm)3. and concluded 973.01, that the under confinement portion of the three-year presumptive minimum sentence must be "no less than the presumptive minimum for the offense, which in [this case] is three (3) years."9 The circuit court thus sentenced the defendant to a bifurcated sentence including a term of confinement of three years followed by a three-year period of extended supervision, and fined him $1,000. ¶7 The defendant concedes that the sentence imposed by the circuit court is valid under Wis. Stat. §§ 961.41(1)(cm)3. 7 See 2001 Wis. Act 109 (effective February 1, 2003). 8 Transcript of Sentencing Proceedings at 27, lines 12-18. 9 Post-Conviction Order (dated Feb. 18, 2002) (Sankovitz, Judge). 3 No. and 973.01 (TIS-I). The dispute in this case 02-0681-CR arises only because the circuit court announced its intention to sentence the defendant to the presumptive minimum sentence prescribed by the statute. conclusion The that defendant the rejects six-year the bifurcated circuit court's sentence is the presumptive minimum sentence. ¶8 The defendant asserts that the presumptive minimum sentence of three years in Wis. Stat. § 961.41(1)(cm)3. means, under § 973.01, supervision defendant that cannot seeks confinement total more resentencing in than on the prison three plus years. ground that extended Thus the the circuit court erroneously believed that the presumptive minimum term of confinement for the crime was three years. ¶9 The court of appeals asks that we determine what combination of confinement in prison and extended supervision constitutes the presumptive minimum sentence when a statute provides that an offender "shall be imprisoned for not less than 3 years."10 court is In other words, the sole issue presented to this whether the presumptive minimum sentence under 10 The court of appeals, in State v. Cole, No. 02-0681-CR, unpublished slip op. at 1 (Wis. Ct. App. November 5, 2002), certified the issue to this court as follows: Whether a presumptive minimum sentence for a felony conviction that is subject to bifurcated sentencing, under the Truth in Sentencing revisions to the criminal code, defines the minimum amount of time an individual must spend in prison or whether the presumptive minimum applies to both time spent in prison and on extended supervision. 4 No. Wis. Stat. §§ 961.41(1)(cm)3. and years an of confinement plus 973.01 is additional a term term of 02-0681-CR of three extended supervision or a term of confinement plus extended supervision totaling three years. ¶10 the We hold that the circuit court erred when it construed presumptive Wis. Stat. §§ 961.41(1)(cm)3. minimum and years of confinement in prison.11 sentence 973.01 (TIS-I) under to be three We conclude that the three- 11 Our holding in this case has limited application and is of limited precedential value. As best we can tell, the resolution of the Truth in Sentencing issue posed by the present case will affect only those sentencing decisions having all three of the following characteristics: (1) the crime for which an accused is being sentenced was committed on or after December 31, 1999, but before February 1, 2003; (2) the crime for which the accused is being sentenced is an unclassified felony for which a minimum sentence was specified in the statute, namely that the offender "shall be imprisoned for not less than [x] years" where x is one or more years; and (3) the sentencing court expressly states its intent to impose the minimum sentence specified in the statute. The State's brief notes that the issue presented in the instant case may arise collaterally in cases in which the sentencing court departs from the prescribed minimum sentence and therefore must state its reasons for such departure on the record. See Wis. Stat. § 961.438. Both the State and the defendant comment that, although not at issue in the present case, whether "imprisoned" in Wis. Stat. § 961.41(1)(cm)3. means "confinement" or "confinement and extended supervision" may bear on the validity of an accused's guilty plea or no-contest plea because the answer might affect the accused's understanding of the meaning of the presumptive minimum sentence that the accused faces. See State v. Mohr, 201 Wis. 2d 693, 700, 549 N.W.2d 497 (Ct. App. 1996) (a defendant pleading guilty is entitled to know that the law presumes he or she will be sentenced to "at least two years in prison" under a penalty provision with a two-year presumptive minimum sentence). 5 No. 02-0681-CR year presumptive minimum sentence under §§ 961.41(1)(cm)3. and 973.01 is a total sentence of three years, consisting of a term of 27 months supervision. of We confinement therefore and reverse nine the months order of of extended the circuit court denying the defendant's postconviction motion and remand the case for resentencing consistent with this opinion. I ¶11 In order to determine the presumptive minimum sentence in the present case we must interpret two statutes: (1) Wis. Stat. § 961.41(1)(cm)3.: prescribing a sentence of "imprisoned for not less than 3 years," the presumptive minimum sentence for the crime in issue; and (2) Wis. Stat. § 973.01 (TIS-I): establishing bifurcated felony sentences of imprisonment. ¶12 The interpretation of a statute is a question of law that this court determines independently, but benefiting from the analysis of the circuit court. ¶13 The principle objective of statutory interpretation is to ascertain and give effect to the intent of the legislature.12 The court must language of history, and Statutes 12 ascertain the statute the relating State v. N.W.2d 660 (1998). the in relation objective to the legislature's intended same subject Szulczewski, 216 13 to to intent its be matter from context, the scope, accomplished.13 should Wis. 2d 495, be read 504, 574 State v. Davis, 2001 WI 136, ¶13, 248 Wis. 2d 986, 637 N.W.2d 62. 6 No. together and harmonized when possible.14 02-0681-CR Furthermore, when there is doubt as to the meaning of a criminal statute, a court should apply the rule of lenity and interpret the statute in favor of the accused.15 ¶14 When the defendant Wis. Stat. § 961.41(1)(cm)3. committed provided that the a crime, person who manufactures, distributes, or delivers more than 15 grams but not more than 40 grams of cocaine or cocaine base "shall be imprisoned for not less than 3 years nor more than 30 years."16 Section 961.41 read in relevant part: 961.41. Prohibited acts A penalties. (1) Manufacture, distribution or delivery. Except as authorized by this chapter, it is unlawful for any person to manufacture, distribute or deliver a controlled substance or controlled substance analog. Any person who violates this subsection with respect to: . . . . (cm) Cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, is subject to the following penalties if the amount manufactured, distributed, or delivered is: . . . . 14 State v. Leitner, 2002 WI 77, ¶30, 253 Wis. 2d 449, 646 N.W.2d 341. 15 State v. Morris, 108 Wis. 2d 282, 289, 322 N.W.2d 264 (1982); State v. Wilson, 77 Wis. 2d 15, 28, 252 N.W.2d 64 (1977). 16 Wis. Stat. § 961.41(1)(cm)3. Again, all statutory references in our discussion are to the statutes as they read after TIS-I went into effect and before TIS-II went into effect, unless otherwise indicated. 7 No. 02-0681-CR 3. More than 15 grams but not more than 40 grams, the person shall be fined not more than $500,000 and shall be imprisoned for not less than 3 years nor more than 30 years.17 ¶15 The established phrase a "imprisoned three-year for minimum "presumptive minimum" sentence. not less than sentence 3 known years" as a A sentencing court could impose a sentence of less than three years only if it found that the best interests of the community would be served and that the public would not be harmed by a lesser sentence and if the sentencing court Furthermore, placed its the reasons on sentence the record.18 provision in Wis. Stat. § 961.41(1)(cm)3. made the offense of manufacturing, delivering, or distributing "unclassified felony." this amount of cocaine an Unlike other felony offenses, which were classified as Class A, B, BC, D, or E felonies, with the maximum 17 Wis. Stat. § 961.41 (emphasis added). Section 961.41 was later amended to provide that a person convicted of delivering more than 5 grams but not more than 15 grams of cocaine is guilty of a Class F felony. See Wis. Stat. § 961.41(1)(cm)3. (2001-02). 18 Wisconsin Stat. § 961.438 provided as follows: 961.438. Minimum sentence. Any minimum sentence under this chapter is a presumptive minimum sentence. . . . [T]he court may impose a sentence that is less than the presumptive minimum sentence or may place the person on probation only if it finds that the best interests of the community will be served and the public will not be harmed and if it places its reasons on the record. 8 No. 02-0681-CR penalty for each class set forth in Wis. Stat. §§ 973.0119 and 961.41(1)(cm)3. established its own sentencing range independent of the felony classification system. ¶16 Wisconsin Stat. § 973.01(1), TIS-I, adopted in 1998 and in effect when the defendant committed the crime, created and established a unique definition of the word "imprisonment" in Wisconsin's sentencing statutes.20 word "imprisonment" to refer to Section 973.01 used the a "bifurcated sentence" consisting of "a term of confinement in prison followed by a term of extended supervision."21 Under § 973.01(1) a circuit court was required to impose a bifurcated sentence consisting of a term of confinement in prison followed by a term of extended supervision whenever it sentences a person to "imprisonment in the Wisconsin state prisons."22 ¶17 Section 973.01(1) read as follows: 19 For example, the penalty for a Class A felony was life imprisonment; for a Class B felony, imprisonment not to exceed 60 years; for a Class E felony, a fine not to exceed $10,000 or imprisonment not to exceed five years, or both. See Wis. Stat. § 939.50. Most felony penalties that provided for presumptive minimum sentences were repealed effective February 1, 2003. The unclassified felonies, including the offense in the present case, were made classified felonies. See Wis. Stat. § 961.41(1)(cm)3. (2001-2002). 20 See 1997 Wis. Act 283. 21 Wis. Stat. § 973.01(1). 22 Wis. Stat. § 973.01(1). 9 No. 02-0681-CR (1) Bifurcated sentence required. Except as provided in sub. (3), whenever a court sentences a person to imprisonment in the Wisconsin state prisons for a felony committed on or after December 31, 1999, the court shall impose a bifurcated sentence that consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113.23 ¶18 Subsection (2) of Wis. Stat. § 973.01 established the term of confinement and period of extended supervision for each bifurcated sentence. Wis. Stat. § 973.01 bifurcated provided sentence may Paragraph that not "the exceed imprisonment for the felony."24 total the Paragraph (2)(a) length maximum of period (2)(b) of the of established that the term of confinement in prison in a bifurcated sentence could "not sentence be less prescribed than for one the year, subject felony."25 to any Moreover, minimum for an unclassified felony such as the one at issue in this case, the term of confinement may not exceed "75% of the total length of the bifurcated sentence."26 Paragraph (2)(d) then established that supervision the term of extended following a term of confinement in a bifurcated sentence "may not be less than 25% of the length of the term of confinement in prison."27 23 Wis. Stat. § 973.01(1) (emphasis added). Subsection (1) of § 973.01 was amended by TIS-II. See Wis. Stat. § 973.01(1) (2001-02). 24 Wis. Stat. § 973.01(2)(a). 25 Wis. Stat. § 973.01(2)(b). 26 Wis. Stat. § 973.01(2)(b)6. 27 Wis. Stat. § 973.01(2)(d). 10 No. ¶19 02-0681-CR The relevant parts of Wis. Stat. § 973.01(2) provided: (2) Structure of Bifurcated Sentences. The court shall ensure that a bifurcated sentence imposed under sub. (1) complies with all of the following: (a) Total length of bifurcated sentence. Except as provided in par. (c), the total length of the bifurcated sentence may not exceed the maximum period of imprisonment for the felony. (b) Confinement portion of bifurcated sentence. The portion of the bifurcated sentence that imposes a term of confinement in prison may not be less than one year, subject to any minimum sentence prescribed for the felony, and, except as provided in par. (c), may not exceed whichever of the following is applicable: 1. For a Class B felony, the term of confinement may not exceed 40 years. 2. For a Class BC felony, the term of confinement may not exceed 20 years. 3. For a Class C felony, the term of confinement may not exceed 10 years. 4. For a Class D felony, the term of confinement may not exceed 5 years. 5. For a Class E felony, the term of confinement may not exceed 2 years. 6. For any felony other than a felony specified in subds. 1. to 5., the term of confinement in prison may not exceed 75 % of the total length of the bifurcated sentence. . . . . (d) Minimum term of extended supervision. The term of extended supervision that follows the term of confinement in prison may not be less than 25% of the 11 No. 02-0681-CR length of the term of confinement in prison imposed under par. (b).28 ¶20 Our task in the present case involves as much algebra as it does statutory interpretation. defendant's sentence had to be All parties agree that the bifurcated. Therefore, the following equation governs our discussion: Sentence (S) = Confinement (C) + Extended Supervision (ES) ¶21 minimum The defendant argues that the three-year presumptive sentence should be interpreted so that (S), the sentence, equals three years, composed of confinement (C) plus extended supervision (ES). Moreover, says the defendant, because the term of confinement for an unclassified felony may not exceed 75% of the total length of the sentence (S), confinement (C) in this case is 27 months (75% of three years). Therefore, under the defendant's calculation, extended supervision (ES) must be nine months. ¶22 The State, on the other hand, argues that the three- year presumptive minimum sentence confinement, equals three years. the extended supervision (ES) must be read so that (C), Moreover, asserts the State, for the three-year presumptive minimum sentence in this case may be any term the circuit court imposes up to 27 years. The State apparently reasons that the circuit court may impose any term of extended supervision not less than 25% of the term of confinement (nine months), as long as the term of confinement (C) 28 plus the term of extended Wis. Stat. § 973.01(2) (emphasis added). Subsection (2) of § 973.01 was amended by TIS-II. See Wis. Stat. § 973.01(2) (2001-02). 12 No. 02-0681-CR supervision (ES) does not exceed the maximum statutory sentence of 30 years. The State also concedes that it is arguable that the presumptive minimum sentence calls for a term of extended supervision of exactly nine months (25% of three years), the minimum allowable period of extended supervision for a threeyear term of confinement ¶23 both As the court of appeals noted in its certification, sides present reasonable respective interpretations. arguments in support of their On the other hand, however, neither party's interpretations and arguments are without flaws. Each party's position is vulnerable to criticism and might create unwelcome anomalies. applies awkwardly The truth of the matter is that TIS-I to presumptive minimum sentences in unclassified felony statutes and it is impossible to cleanly and neatly reconcile the two statutes at issue in this case. II ¶24 We first explore how to calculate the term of confinement under the statutes. ¶25 Both parties rely Wis. Stat. § 961.41(1)(cm)3., minimum sentence, and on setting Wis. Stat. § the forth 973.01 language the of presumptive (TIS-I), creating bifurcated sentences, to support their respective calculations of the term of confinement. Both parties legislative history and legislative purpose. each in turn. A 13 also rely on We shall examine No. ¶26 years The phrase "shall be imprisoned for not less than 3 nor more than 30 years" appearing Wis. Stat. § 961.41(1)(cm)3. predates TIS-I.29 the 02-0681-CR legislature did not define the word in Prior to TIS-I, "imprisoned," and Wisconsin courts interpreted the word in a common-sense fashion to mean incarcerated or confined in a jail or prison.30 ¶27 As previously explained, however, when the legislature enacted TIS-I it gave a unique statutory explanation of the word "imprisonment." Specifically, Wis. Stat. § 973.01 defined sentences of "imprisonment" as bifurcated sentences including a term of confinement and a term of extended supervision.31 ¶28 The State argues that while TIS-I creates a new statutory definition for sentences of imprisonment, it is not clear that every reference in the statutes to "imprisonment" or "imprisoned" is consequently a reference to a bifurcated sentence as opposed to confinement alone. ¶29 Indeed, the legislature has not been consistent in its use of the word "imprisonment" in TIS-I to mean a total of the 29 See Wis. Stat. § 161.41(1)(cm)3. (1989-90) (a defendant convicted of delivering more than 10 grams but not more than 40 grams of cocaine "shall be imprisoned for not less than 5 years nor more than 30 years."). Wisconsin Stat. ch. 161 was renumbered ch. 961 in the 1995-96 Wisconsin Statutes. 30 See State v. Meddaugh, 148 Wis. 2d 204, 210, 435 N.W.2d 269 (Ct. App. 1998) (citing to dictionary definition of "imprison" as "to put in prison: confine in a jail" for guidance when interpreting the word "imprisoned" within drunk driving statute). 31 Wis. Stat. § 973.01(1). 14 No. term of confinement and defined in the term of Wis. Stat. § 973.01. extended 02-0681-CR supervision Section 973.01 is as titled "bifurcated sentence of imprisonment and extended supervision," implying that "imprisonment" within a bifurcated sentence. explains that the total means the term of confinement Subsection (2)(a), however, then length of a bifurcated sentence of confinement and extended supervision may not exceed "the maximum period of imprisonment for the felony," implying that "imprisonment" means the total sentence, including both a term of confinement and a term of extended supervision.32 ¶30 The State acknowledges that the word "imprisoned" in Wis. Stat. § 961.41(1)(cm)3. means a bifurcated sentence totaling 30 years of confinement plus extended supervision when referring to the 30-year maximum sentence. However, the State argues that the legislature intended the word "imprisoned" in § 961.41(1)(cm)3. to mean only a term of confinement for purposes of the three-year presumptive minimum sentence. ¶31 The State points out that the only express discussion of presumptive minimum sentences in Wis. Stat. § 973.01 is in reference to terms of confinement in a bifurcated sentence. Section 973.01(2)(b), titled "Confinement portion of bifurcated sentence," provides that the "portion of the bifurcated sentence that imposes a term of confinement in prison may not be less than one year, subject to any minimum sentence prescribed for 32 See Wis. Stat. §§ 973.01 ("Bifurcated imprisonment and extended supervision"); ("Imprisonment portion of bifurcated sentence"). 15 sentence of 973.01(2)(b) No. the felony." 02-0681-CR The State argues that the phrase "subject to any minimum sentence" modifies "term of confinement," not the total bifurcated equating sentence, the and presumptive thus TIS-I minimum must sentence be construed with a "term as of confinement." ¶32 The State acknowledges that its interpretation of the statutes would require substantial judicial modification of the statutory language in Wis. Stat. § 961.41(1)(cm)3. to reconcile its proposed outcome. Specifically, the State argues that the penalty issue provision at is properly read as "shall be imprisoned [confined in prison] for not less than 3 years [on a bifurcated sentence of not] nor more than 30 years." The State suggests when that such modification is permissible the legislative intent is clear.33 ¶33 true that The defendant responds, however, that even if it is the word "imprisoned" can mean either a term of confinement or a term of confinement plus a term of extended supervision, as the State argues, Wis. Stat. § 961.41(1)(cm)3. uses the word "imprisoned" only once to refer to both the minimum sentence and the maximum sentence and therefore the word must have the same meaning for both kinds of sentences. 33 The State cites to 2A A. Sutherland, Statutory Construction § 47:36, at 379-80 (6th ed. 2000) and State v. Williams, 198 Wis. 2d 516, 534, 544 N.W.2d 406 (1996) (a reviewing court "may insert words into a statute that are necessary or reasonably inferable" to avoid an unintended result). 16 No. ¶34 The defendant reasons that Wis. Stat. § 973.01(2)(a) expressly sentence "imprisoned . . . [not] for the crime, 02-0681-CR provides that because the more maximum than 30 years," must be calculated by the term of confinement plus the term of extended supervision,34 "imprisoned for not less than 3 years" must similarly mean that the presumptive minimum sentence of three years is calculated by totaling the term of confinement plus the term of extended supervision. The defendant concludes that the term of confinement must therefore be less than three years. ¶35 The State's interpretation, argues the defendant, reading the word "imprisoned" for purposes of the three-year presumptive minimum sentence as three years in confinement, but reading the word "imprisoned" for purposes of the 30-year statutory maximum sentence as the expression of a bifurcated sentence in which the total term of confinement and term of extended service cannot exceed 30 years, is contrary to both common sense and general rules of statutory interpretation.35 34 Wis. Stat. § 973.01(2)(a) ("[T]he total length of the bifurcated sentence may not exceed the maximum period of imprisonment for the felony."). 35 See, e.g., Gen. Castings Corp. v. Winstead, 156 Wis. 2d 752, 759, 457 N.W.2d 557 (Ct. App. 1990) ("We reject an interpretation which ascribes different meanings to the same word as it variously appears in a statute unless the context clearly requires such an approach. This is all the more true where, as here, the word reappears in the same sentence of the statute at issue. Such an interpretation borders on the unreasonable. We must avoid such interpretations."). 17 No. ¶36 The defendant further asserts that 02-0681-CR under his interpretation, because the term of confinement calculated under a TIS-I bifurcated sentence may not exceed 75% of the total length of the bifurcated sentence, the term of confinement to be imposed in this case in calculating the presumptive three-year minimum sentence should be 27 months 75% of three years.36 ¶37 We conclude that the language of both statutes, standing alone, creates more confusion than clarity; neither the State's position nor the defendant's position on the statutory language is sufficient. substantially substantial The State demands that the language be rewritten. revisions to Yet the even assuming language of a arguendo statute that can be justified when the intent of the legislature clearly requires those revisions, as will be discussed below, the intent of the legislature is not clear in the present case. The defendant, on the other hand, looks too simply at the statutory language and asserts that consistency alone dictates his construction. Yet his construction conflicts with the common-sense reading of the word "imprisoned" as confinement in prison and the working definition of "imprisonment" in Wisconsin case law prior to TISI. Moreover, as was made clear above, even under TIS-I the legislature 36 sometimes used "imprisonment" See Wis. Stat. § 973.01(2)(b)6. 18 to mean confinement No. alone.37 02-0681-CR Thus, we turn our attention to legislative history and legislative purpose. B ¶38 The legislative history of TIS-I is equally wooly in providing insight into the appropriate calculation of the term of confinement for the presumptive "imprisoned for not less than 3 years." of TIS-I is noticeably silent about minimum sentence of The legislative history the impact of TIS-I on presumptive minimum sentences. ¶39 The State argues that the legislative drafting history supports its calculation. were made minimum to The State explains that amendments Wis. Stat. § 973.01(2)(b) sentences) and (addressing § 973.01(2)(c) statutory (addressing the calculation of penalty enhancers in a bifurcated sentence)38 by 37 Further proof of the statute's lack of clarity can be found in the parties' dispute over how a one-year prison sentence is to be interpreted. The statutory phrase in issue is a "term of confinement in prison may not be less than one year, subject to any minimum sentence prescribed for the felony" in Wis. Stat. § 973.01(2)(b). The State argues that this phrase sets an absolute floor of one year for a term of confinement in a bifurcated sentence and that the floor must be raised where (i.e., subject to) the minimum sentence for a given felony is greater than one year. The defendant, on the other hand, argues that this phrase sets a one-year floor for a term of confinement where a minimum sentence is greater than one year but that the one-year floor can be lowered where (i.e., subject to) the minimum sentence allows. The parties then dispute whether a one-year minimum sentence can be bifurcated to include a ninemonth term of confinement and remain a sentence to a "state prison" under Wis. Stat. § 973.02 (a sentence of less than one year cannot be to a state prison). 38 Wisconsin Stat. § 973.01(2)(c) provided as follows: 19 No. 02-0681-CR the Legislative Reference Bureau in response to a request from the Governor's wanted the legal counsel. legislation enhancers apply sentence, not to the the total The clarified Governor's to confinement and of the counsel that reflect portion sentence,39 legal penalty a bifurcated Drafter's Note indicates that in response to legal counsel's request, the TIS-I bill was statutory modified to include minimum both sentences the within penalty enhancers and subsection (2)(b) establishing the confinement portion of the bifurcated sentence. The Drafter's Note reads: 6. This draft modifies proposed s. 973.01(2)(b)(intro.) to make the general statement of the term of imprisonment [later changed to "confinement in prison"] subject both to minimums for specific crimes and to extension with applicable penalty enhancers.40 The State concludes that the most reasonable inference from this drafting history is that presumptive minimum sentences, like Penalty enhancement. The maximum term of confinement in prison specified in par. (b) may be increased by any applicable penalty enhancement. If the maximum term of confinement in prison specified in par. (b) is increased under this paragraph, the total length of the bifurcated sentence that may be imposed is increased by the same amount. 39 Memorandum from Stewart Simonson, Legal Counsel to the Governor, to Jefren Olsen, Legislative Reference Bureau, and accompanying Drafter's Note (January 22, 1997). 40 Jefren E. Olsen, Drafter's Note from the LRB, LRB1128/1dn, LRB drafting file to 1997 Wis. Act 27. The draft bill used the word "imprisonment" at the time the modification was made. It was later changed to "confinement in prison." 20 No. penalty enhancers, dictate the confinement 02-0681-CR portion of the bifurcated sentence, not the total sentence. ¶40 The compelling defendant, argument for the that his part, complete makes history an of equally truth-in- sentencing legislation in Wisconsin, which also includes 2001 Wis. Act 109 (TIS-II), demonstrates the legislature's intent to eliminate most minimum sentences and treat those that remain as establishing the total length of a bifurcated sentence, not the term of present confinement. case, the Although history and TIS-II does provisions of not govern TIS-II may the be accorded weight to aid us in determining what the legislature intended in TIS-I inasmuch as TIS-II was viewed as supplemental legislation necessary to implement the infrastructure created by TIS-I.41 ¶41 The Wisconsin legislature enacted TIS-I in June 1998, abandoning the state's indeterminate sentencing system adopting a truth-in-sentencing regime in its stead.42 and The law enacted in 1998 was just the first piece of the new regime. The legislature established an 18-month window between the date TISI was passed and the date it was to go into effect in order to give the newly established Criminal Penalties Study Committee (CPSC) 41 time to supplement See McGarrity v. Welch 427, 312 N.W.2d 37 (1981). and complete Plumbing 42 Co., the 104 existing Wis. 2d 414, Michael B. Brennan et al., Fully Implementing Truth-inSentencing, Wisconsin Lawyer, Nov. 2002, at 11. 21 No. legislation.43 producing a While lengthy the CPSC report timely completed and statutory 02-0681-CR its proposals task, for full implementation of truth-in-sentencing, the legislature failed to enact the proposals before TIS-I went into effect.44 ¶42 The sentencing legislature law in July recommendations made recommendation that establishing minimum finally 2002. in the enacted TIS-II CPSC "provisions sentences otherwise) . . . be repealed."45 a second adopted report, in truth-in- many of including criminal the the statutes (presumptive or Indeed, after TIS-II, all but two minimum sentences were repealed. The crime for which the defendant was convicted in the present case, for example, is now a Class D felony subject to a "fine not to exceed $100,000 or imprisonment not to exceed 25 years, or both."46 The reason for the change, according to the CPSC, is to allow courts "maximum sentencing discretion to deal with the multitude of offenders 43 Id.; see also Wisconsin Legislative Council Information Memorandum 98-11, LRB-3154/1 (June 24, 1998). 44 Brennan, supra note 42, at 12. 45 State of Wisconsin Criminal Penalties Study Committee, Final Report, August 31, 1999, at http://www.doa.state.wi.us/secy/index.asp. 46 See Wis. Stat. § 961.41(1)(cm)3. (2001-02). Minimum sentences for all drug crimes were eliminated by repeal of Wis. Stat. § 961.432. See 2001 Wis. Act 109, § 1077. 22 No. 02-0681-CR who commit crimes and the multitude of ways in which they do so."47 ¶43 In addition to eliminating almost all presumptive minimum sentences, TIS-II expressly established the confinement portion of the remaining two presumptive minimum sentences at roughly 75% sentence. of the Repeat length sex of the offenders TIS-I and presumptive repeat serious minimum violent offenders remain subject to presumptive minimum sentences under TIS-II.48 Under TIS-I, both types of repeat offenders were subject to sentences of "not less than 5 years' imprisonment," but under TIS-II they are now subject to a bifurcated minimum sentence with a term of confinement of not less than three years and six months.49 That is, the TIS-I (and pre-TIS-I) five-year presumptive minimum prison sentence was converted under TIS-II to a term of confinement of not less than three years and six months. ¶44 entire According history of to the TIS defendant, legislation consideration makes clear of this that the legislature intended to increase sentencing discretion at the lower end of the sentencing range, not rigidly set minimum terms of confinement, and also intended that the remaining presumptive minimum sentences be interpreted as bifurcated sentences with 47 State of Wisconsin Criminal Penalties Study Committee, Final Report, August 31, 1999, at http://www.doa.state.wi.us/secy/index.asp. 48 See Wis. Stat. §§ 939.623-24 (2001-02). 49 Id. 23 No. 02-0681-CR the term of confinement at 75% of the minimum number of years set forth in the statute. presumptive minimum The TIS-I (and pre-TIS-I) three-year sentence, argues the defendant, should similarly be converted under TIS-I to 27 months. ¶45 In short, as was true of the statutory language, the legislative determining the correctness of the State's or defendant's calculations. The drafting history history supports the suggests of inconclusive the interpretation. of in in Wis. Stat. § 973.01(2)(b)6. State's consideration legislation is entire the Wisconsin, defendant's On history including position of both was the properly other hand, Truth-in-Sentencing TIS-I what and the TIS-II, legislature envisioned. C ¶46 purpose Meanwhile, both parties argue that the legislature's of linking indeterminate the sentencing TIS-I lengths "term of supports confinement" their with respective positions. ¶47 TIS-I expressly increased imprisonment for felony offenses. the maximum period of With regard to unclassified felonies, maximum penalties were increased by 50% or one year, whichever was greater.50 The drafting history for TIS-I suggests that the reason for the increase in the maximum penalties for unclassified felonies was to 50 keep the maximum term of Memorandum from Stewart Simonson, Legal Counsel to the Governor, to Jefren Olsen, Legislative Reference Bureau, at 2 (January 22, 1997). 24 No. 02-0681-CR confinement roughly equal to the maximum sentence under the nowabrogated indeterminate sentencing scheme.51 ¶48 For example, the maximum penalty for the defendant's crime in this case was 20 years under indeterminate sentencing and was raised by 50% to 30 years under TIS-I. The maximum term of confinement under TIS-I on a 30-year maximum sentence for an unclassified felony would then have been 22.5 years (75% of the maximum penalty), which represents a slight increase though roughly the same length as the 20-year maximum indeterminate sentence. ¶49 The State argues that the defendant's position that a 27-month term of confinement be imposed is unreasonable in light of the legislature's goal of increasing TIS-I maximum sentences so that the maximum term of confinement is equal to or greater than the total indeterminate maximum penalty. The State reasons that if the correct term of confinement here is 27 months, the TIS-I term of confinement would be less than the three-year presumptive minimum indeterminate sentence for the same crime. The State contends that the legislature would not have increased the maximum sentence under TIS-I while simultaneously decreasing the presumptive minimum sentence without clearly expressing these inconsistent goals. ¶50 that it A difficulty with the State's position, however, is ignores the realities 51 of indeterminate sentencing. Id. ("The maximum term of imprisonment would equal the pre-increase maximum sentence."). 25 No. Under indeterminate sentencing, entire prison sentence offenders confined in rarely 02-0681-CR their offenders prison; served were required to be released after serving 2/3 of their sentences (barring any additional time imposed for misconduct) and offenders were eligible for even earlier release through parole (which generally became available after an offender served the greater of 25% of a court-imposed sentence or six months.)52 the present case, indeterminate for example, a would have sentencing three-year meant sentence that the In under offender could be released from prison after two years. ¶51 Interpreting a three-year presumptive minimum to require only 27 months of confinement, as the defendant asserts, better fits the legislative goal of rough equality with the "term of confinement" served under an indeterminate sentence. ¶52 term Moreover, of the defendant's confinement is calculation supported by of TIS-II. a 27-month At the recommendation of the CPSC, the legislature accounted for the impact of mandatory release on indeterminate sentencing in TISII by making the maximum initial term of confinement for each crime under TIS-II roughly parallel to the maximum the offender would release have served date under in prison the before reaching indeterminate his mandatory sentencing system.53 Furthermore, the legislature's amendment of the remaining two 52 See Wisconsin Legislative Council Information Memorandum 98-11, LRB-3154/1, at 5 (June 24, 1998). 53 Brennan, supra note 42, at 12. 26 No. 02-0681-CR presumptive minimum sentences in TIS-II, from "not less than 5 years' imprisonment" to a term of confinement of not less than three years and six months, parallels the defendant's calculation of 27 months for the presumptive minimum sentence of not less than three years. ¶53 Even accounting for mandatory contends that its position is correct. by leaving presumptive minimum release, the State According to the State, sentences alone under TIS-I, confinement time for presumptive minimums increased in the same proportion that confinement time for maximum sentences increased. That is, accounting for mandatory release dates, a three-year presumptive minimum sentence increased from two years in prison to three years in prison, an increase roughly parallel to the jump from a 20-year indeterminate maximum sentence for the present offense to a 22.5-year maximum term of confinement for the present offense under TIS-I. ¶54 According to the State, the legislature apparently intended to increase the confinement time for both presumptive minimum sentences and maximum sentences under TIS-I. Yet the legislature increased the maximum sentence at issue here and at the same time left the minimum sentence untouched. does not increase make both sense that maximum and former and not the latter. the legislature minimum sentences would by It simply intend changing to the If the legislature's goal was to increase confinement time at both ends of the sentencing range, it would have increased the presumptive minimum penalty by the same proportion it increased the maximum penalty. 27 No. ¶55 positions Although support both the parties assert legislature's that purpose their in 02-0681-CR respective linking TIS-I term of confinement with indeterminate sentencing lengths, the defendant seems to have the stronger argument. III ¶56 We next explore how to compute the term of extended supervision. Section 973.01(2)(d) provides that for all felonies, "the term of extended supervision that follows a term of confinement may not be less than 25% of the length of the term of confinement." When calculating a presumptive minimum sentence, one would presume that the shortest term of extended supervision 25% of the length of the term of confinement would be adopted. Importantly, however, it is mathematically impossible to minimize the term of extended supervision for an unclassified felony. As will become clear below, a bifurcated sentence for an unclassified felony cannot include a term of confinement that does not exceed 75% of the total sentence and also include a period of extended supervision that is only 25% of the term of confinement. ¶57 The importance of this statutory mathematical formula is that it further complicates the coherence of both the State's and the defendant's calculations of the three-year presumptive minimum sentence in the present case. In their briefs and at oral argument, both parties presented positions on the actual breakdown of confinement time and extended supervision in a presumptive minimum sentence, should their interpretation of the phrase "imprisoned for not less than 3 years" prevail. 28 No. ¶58 02-0681-CR The defendant argues that the term of confinement for a three-year presumptive minimum sentence is 27 months, or 75% of the total supervision length would of have incarceration. to be nine Therefore, months in bifurcated sentence to total three years. extended order for the This calculation is odd, however, because the minimum term of extended supervision for a 27-month term of confinement under Wis. Stat. § 973.01(2)(d) would be 6.75 months, or 25% of the term of confinement. Yet a term of extended supervision of 6.75 months would lead to a sentence of less than three years. ¶59 The State, on the other hand, argues that the presumptive minimum sentence in the present case is 36 months (three years) of confinement and nine months of extended supervision, since nine months is exactly 25% of the length of the term of confinement, the lowest possible term of extended supervision allowed under Wis. Stat. § 973.01(2)(d). Again, however, as mentioned above, the State's favored sentence is contrary to the requirement in § 973.01(2)(b)6. that the term of confinement not exceed 75% of the total length of the bifurcated sentence. Thirty-six months is 80% of the total 45-month sentence suggested by the State. In order to comply with the maximum still extended term of confinement supervision presumptive interpretation minimum of and allowed under sentence minimize § 973.01 according to Wis. Stat. § 961.41(1)(cm)3. the term (TIS-I), the is a of the State's term of confinement for three years and a term of extended supervision of one year 33% of the length of the term of confinement. 29 No. ¶60 02-0681-CR Once on this path of expanding the term of extended supervision beyond the statutory minimum, however, it is hard to determine the proper ending point for the State's argument. State's argument confinement open the impose. for merely a establishes presumptive length of extended a cap minimum on the sentence, supervision a term leaving circuit The of wide court may The only limit on total sentence length would be the maximum period of imprisonment for the felony, which, in this case, is 30 years. three years supervision, of Thus, under the State's view, sentences of confinement three years of plus nine months confinement plus of extended three years of extended supervision, and three years of confinement plus 27 years of extended sentences. intended supervision are all It is the difficult to imagine only difference between presumptive that the the minimum legislature presumptive minimum sentence and the statutory maximum sentence to be the number of years of confinement imposed, not the total length of the bifurcated sentence. IV ¶61 enacted Wisconsin's in response Truth-in-Sentencing to calls for legislation greater certainty was and uniformity regarding periods of incarceration for offenders.54 It was designed to create structure for all felons.55 a more determinate sentencing Yet as the instant case makes clear, 54 Legislative Reference Bureau Brief 02-7, Truth-inSentencing and Criminal Code Revision, at 1 (August 2002). 55 Id. 30 No. 02-0681-CR the truth of the sentence is hard to discern, and the term of confinement and term of extended supervision for a presumptive minimum sentence uncertain. under The language Wis. Stat. § 973.01 of (TIS-I) are Wis. Stat. §§ 961.41(1)(cm)3. and 973.01 (TIS-I) can be read to support multiple calculations of a presumptive minimum sentence, and the legislative history and purpose point in several directions. ¶62 Still, come to a conclusion we must, and when we consider all the arguments set forth above by both parties, we conclude that more legislature factors intended for point a to the three-year conclusion that the presumptive minimum sentence for an unclassified felony to be a bifurcated sentence totaling three years and including a term of confinement of 27 months and a period of extended supervision of nine months. ¶63 First, We reach this conclusion for five different reasons. it is difficult to conclude that the single word "imprisoned," used once in Wis. Stat. § 961.41(1)(cm)3., has two different meanings, one for a presumptive minimum sentence and another for the maximum penalty. ¶64 Second, legislature it is unreasonable intended to increase to the assume that presumptive the minimum sentence in the present case to a term of confinement for three years in the face of its decision in TIS-II to repeal all but two presumptive minimum confinement of presumptive minimum interpretation those in sentences two offenses sentence. the and face The of 31 to to reduce less the than the unreasonableness the full term history of prior of this of TIS No. 02-0681-CR legislation outweighs the fact that the only mention of minimum sentences under Wis. Stat. § 973.01 is in subsection (2)(b) establishing the term of confinement and the drafting record indicating that this language was placed there intentionally. ¶65 Third, it legislature intended sentence the is in unreasonable to present increase case to to the a assume that presumptive full the minimum three-year term of confinement by leaving the minimum sentence the same as it was pre-TIS-I in the face of its decision to increase the maximum period of confinement under TIS-I by clearly and expressly increasing maximum sentences from their pre-TIS-I levels. ¶66 Finally, it is unreasonable to construe a bifurcated presumptive minimum sentence of "not less than 3 years nor more than 30 years" to be capable of lasting a total of 30 years. Even though the defendant's calculation of nine months of extended supervision for a 27-month term of confinement fails to minimize the interpretation period of offered extended by the supervision, State suggests the no alternative reasonable stopping point for extended supervision short of the 30-year maximum sentence set forth in Wis. Stat. § 961.41(1)(cm)3. While TIS-I clearly permits sentences with as much range as the State suggests, a bifurcated presumptive minimum sentence must somehow minimize both the term of confinement and period of extended supervision. ¶67 In addition, even if one believes that the arguments on both sides are equally weighted, Wisconsin law provides that a court must favor a milder penalty over a harsher penalty when 32 No. 02-0681-CR there is doubt concerning the severity of the penalty prescribed by statute.56 This rule of lenity provides generally that ambiguous penal statutes should be interpreted in favor of the defendant.57 More specifically, the rule of lenity comes into play after two conditions are met: (1) the penal statute is ambiguous; and (2) we are unable to clarify the intent of the legislature by resort to legislative history.58 ¶68 statutes In the present case, if the conclusion is that the are indeed confusing, and the true intent of the legislature cannot be discerned from the legislative history and the legislative purpose, we must adopt the construction that results in imposition of the less severe sentence. Here, that is the construction offered by the defendant. ¶69 For the reasons set forth, we conclude that a term of confinement of 27 months and a term of extended supervision of nine months is the presumptive minimum sentence for confinement under Wis. Stat. § 961.41(1)(cm)3. 56 Accordingly, we reverse the Morris, 108 Wis. 2d at 289. 57 See State v. Kittilstad, 231 Wis. 2d 245, 267, 603 N.W.2d 732 (1999) ("The rule of lenity was developed in the federal courts and holds that where a criminal statute is ambiguous, it should be interpreted in a defendant's favor. The rule of lenity is 'echoed in the familiar Wisconsin rule that 'penal statutes are generally construed strictly to safeguard a defendant's rights.'") (internal citations omitted). 58 State v. Setagord, 211 Wis. 2d 397, 415, 565 N.W.2d 506 (1997) (citing Morris, 108 Wis. 2d at 289; Wilson, 77 Wis. 2d at 28). 33 No. 02-0681-CR order of the circuit court and remand the cause to the circuit court for resentencing consistent with this opinion. By the Court. The order of the circuit court is reversed and the cause is remanded. 34 No. 1 02-0681-CR

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.