State ex rel. Singh v. Kemper
846 N.W.2d 820
Wis. Ct. App.2014Background
- Aman Singh was convicted in 2010 (and again in 2011) for obtaining a controlled substance by fraud and began serving prison time on January 4, 2012; some pre-prison jail time occurred earlier.
- 2009 Wis. Act 28 created early-release opportunities including Positive Adjustment Time (PAT) and court notification/review procedures for eligible Class F–I offenders.
- 2011 Wis. Act 38 repealed or limited those 2009 Act PAT/early-release provisions (effective August 3, 2011) and enacted Wis. Stat. § 973.198, which preserves PAT already earned but changes procedures and limits earning PAT after August 3, 2011.
- After arriving in prison, DOC refused to process Singh’s 2009-act early-release requests based on the 2011 changes; Singh petitioned for a writ of habeas corpus, which was denied by the circuit court.
- Singh, proceeding pro se, appealed claiming (1) retroactive application of 2011 Act provisions violates federal and state ex post facto clauses by eliminating his 2009-act early-release eligibility, (2) § 973.198’s change to the sentencing court’s role violates ex post facto, and (3) he should get PAT credit for county jail time pre-prison.
- The appellate court held that retroactive elimination of Singh’s 2009-act early-release and PAT-earning opportunities (as applied to his offenses) violated the ex post facto clauses; the court rejected his challenge to the procedural change in the sentencing court’s role and held he is not entitled to PAT for county jail time.
Issues
| Issue | Singh's Argument | Kemper's Argument | Held |
|---|---|---|---|
| Retroactive elimination of 2009-act early-release eligibility | Applying 2011 Act to bar Singh from early release violates federal and state ex post facto clauses because 2009 law was in effect when offenses occurred | 2011 Act validly changed early-release scheme; Singh not entitled to relief | Court: Retroactive elimination of those 2009 provisions (as applied to Singh’s offenses) violates ex post facto; those provisions shall apply to Singh |
| PAT earning after Aug. 3, 2011 | Singh should be allowed to earn PAT after Aug. 3, 2011 for time confined in prison because 2009 law allowed earning and his offenses predate repeal | 2011 Act barred earning PAT after Aug. 3, 2011; Singh therefore not eligible | Court: Ex post facto requires Singh be allowed to earn PAT for time served in prison related to his covered offenses as under 2009 Act |
| Change in sentencing court role under § 973.198 | Modified procedure (court must act on petition) is more onerous and violates ex post facto by increasing risk of longer confinement | Change is procedural and does not create a significant risk of longer confinement; § 973.198 valid | Court: Procedural change does not on its face create a significant risk of prolonged incarceration; Singh failed to prove practical implementation causes a constitutional violation; § 973.198 procedures apply for releasing PAT-earned prisoners |
| PAT credit for pre-prison county jail time | Days spent in county jail before prison should count toward PAT | PAT is earned only while confined in a prison, and jail time is not governed by prison regulations or wardens | Court: PAT limited to days actually served in a prison; county jail time does not qualify |
Key Cases Cited
- State ex rel. Mueller v. Powers, 64 Wis. 2d 643, 221 N.W.2d 692 (1974) (retroactive increase in time before parole consideration held ex post facto)
- Lindsey v. State of Washington, 301 U.S. 397 (1937) (applying a new punitive measure to completed crimes violates Ex Post Facto Clause)
- California Dep't of Corrections v. Morales, 514 U.S. 499 (1995) (procedural changes to parole hearing timing do not violate ex post facto when speculative as to increased punishment)
- Garner v. Jones, 529 U.S. 244 (2000) (whether law change creates a significant risk of prolonging incarceration is central to ex post facto analysis)
- Peugh v. United States, 133 S. Ct. 2072 (2013) (ex post facto inquiry asks whether change creates a sufficient risk of increasing punishment)
- Weaver v. Graham, 450 U.S. 24 (1981) (partial invalidation of provisions that retrospectively increase punishment; severability of non-offending provisions)
- State v. Thiel, 188 Wis. 2d 695, 524 N.W.2d 641 (1994) (Wisconsin discussion of ex post facto principles)
- State v. Carroll, 343 Wis. 2d 509, 819 N.W.2d 343 (2012) (discussing statutory changes to PAT in 2011 Act)
- State v. Harris, 337 Wis. 2d 222, 805 N.W.2d 386 (2011) (discussing credit and status of jail versus prison confinement for sentence computation)