State Ex Rel. Singh v. Kemper

State of Wisconsin ex rel. Aman Singh,

Petitioner-Appellant-Petitioner,

v. Paul Kemper, Warden, Racine Correctional Respondent-Respondent-

Institution, Cross Petitioner.

Supreme Court No. argument 2013AP1724. Oral March July Decided 2016 WI 67 petitioner-appellant-petitioner, For the there were by Ludwig, Shriner, Jr., H. briefs Thomas L. Brett Foley Philip Babler, LLP, & C. and Lardner Milwaukee argument by Philip and C. oral Babler. respondent-respondent-cross-petitioner, For the by argued Lynn the cause was Sara Shaeffer, assistant attorney district with whom on the briefs was Brad D. attorney general. Schimel, pre- BRADLEY, 1. ANN WALSH J. We are petition cross-petition

sented with both a and a involving constitutionality legislation review of repealed and a law, modified 2009 Wis. Act opportunity "positive that allowed inmates the to earn adjustment early time," which inmates could obtain prison.1 release from 1The part mandate is to affirm in part and reverse in opinion appeals. justices of court of Five are in accord with (Abrahamson, J., Prosser,

this mandate J., Bradley, J., Ann Walsh J.). J., Ziegler, Gableman, and Accord on the individual issues, however, is mixed. majority A of the court concludes that Wis. Stat. 973.198 prohibition violates the against constitutional facto laws punishment because it makes the for an offense more burden- justices some after it was committed. Five reverse the court appeals (Abrahamson, J., determination this on issue Ann J.). J., Prosser, J., Bradley, J., Walsh Ziegler, Gableman, and majority Likewise a court concludes that retro- repeal positive adjustment active time violates the ex July justices clause vis-a-vis the Five would offense. affirm (Abrahamson, J., appeals the court of determination of that issue Bradley, J., Prosser, J., J., Ann Ziegler, Walsh J.). Gableman, and However, majority garnered no has been as to whether the repeal retroactive the ex violates facto clause vis-á—vis justices 2008 offense. Three conclude that does it (Abrahamson, J., J.); Bradley, J., Prosser, Ann Walsh and two justices does (Roggensack, conclude it not C.J. and Re- J.); Bradley, justices becca two G. do address the issue J.). J., Gableman, (Ziegler, Finally, justices there are two who would vote remand this to the case circuit court for a determination of whether provisions constitutionality of The two 2. relating 28, Act Act to 2009 Wis. which

2011 38 Wis. adjustment positive adopted time, issue in this are at (1) adjustment positive repeal of the retroactive case: (2) adjustment positive preservation of time, and 28 in effect and 2009 Act was earned while Wis. time early obtaining process for release to the alterations adjustment positive time, which we refer on based § as Stat. 973.198. Wis. Singh, petitioner, The Aman seeks review published appeals in decision reversed court part

part in the circuit court's order and affirmed corpus.2 dismissing petition of habeas for writ his delays Singh § in- that Wis. Stat. 973.198 contends thereby by up days, prison to 90 release from mates' violating post facto clauses of the Wisconsin and the ex United States Constitutions.3 argues 973.198, He that under Wis. Stat. eligible positive adjustment time inmates who are days up 90 later than under 2009 Wis. are released (Abrahamson, J., Bradley, entitled relief Ann Walsh is J.). However, majority court of the would remand Gableman, Prosser, J., J., C.J., Ziegler, J. and (Roggensack, J.). Bradley, Rebecca G. 2 43, App Kemper, ex v. 2014 WI State rel. (affirming reversing part in Wis. 2d in 846 N.W.2d dismissing corpus writ of habeas part quashing an order County, petition entered the circuit court for Racine Gerald Ptacek, J., presiding). P. ex facto in the Wisconsin prohibition post The on laws provides: is Section which Constitution found Article . .. . ." post passed law . . shall ever be "No ... ex facto laws United prohibition on ex in the States I, and 10. Section 9 Constitution found Article Sections 9 provides: "No ex facto Law shall be bill of Attainder or pass any . . passed." provides: Section "No state shall. . . . ..." Law. Asserting change longer Act 28. that this a results in period Singh § of incarceration, claims 973.198 post agree Singh ex violates the facto clauses. We with that Wis. Stat. 973.198 the violates constitutional prohibition against ex facto laws because it re- longer period making in sults incarceration, of thus punishment the an offense more burdensome after it was committed.4 Cross-petitioner, Kemper, capac- Paul in his

ity as warden of Institute, the Racine Correctional part appeals' seeks review of that of the court of decision that reversed the circuit court's order dismiss- ing petition corpus. for writ of habeas He Singh asserts that because committed one of his crimes positive adjustment before the enactment of time in erroneously appeals Act 28, Wis. of court application concluded that the retroactive of 2011 Wis. opportunity Act which eliminated the for inmates earning positive adjustment to continue time, was an ex facto violation of the Wisconsin and United States Constitutions. presents

¶ 6. This case the unusual circumstance of a defendant who was convicted and sentenced under adjustment positive 2009 Wis. Act which made originally time available it when was not available at Kemper argues the time of the offense. that the court appeals changes erred because it on in focused sentenced, law when the defendant was convicted and changes rather than the law at the time defen- dant committed the offenses. disagree Kemper 7. We with because this application positive

case, due to the retroactive subsequent All references the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.

adjustment sentenced convicted and time, was in effect. Both Wisconsin Act 28 was 2009 Wis. while supports precedent Supreme Court United States and assessing in reference facto effect of law offense, was defendant committed the to the time the convicted, or was sentenced. appeals, the court of we conclude 8. Like early provisions of 2009 Wis. Act release

because retroactively in when was con- effect 28 were as offense, for the first as well at and sentenced victed offense, that he the second the time committed adjustment repeal positive time in 2011 retroactive post facto of the the ex clauses Wis. Act violates However, and United States Constitutions. Wisconsin appeals, conclude that Wis. Stat. unlike the court of we prohibition § violates the constitutional 973.198 also pun- against laws it makes the ex because more burdensome after it was ishment for an offense committed. Accordingly, appeals' we affirm the court of repeal positive of the retroactive

determination adjustment violation, time an ex but § reverse its determination that Wis. Stat. 973.198 prohibition against does not violate constitutional Additionally, I facto laws. would remand the cause to thе circuit court for a determination of the current circumstances it is whether under now appropriate grant the writ and what additional any, relief, if is warranted.

H presented of this case as 10. The relevant facts by dispute. They parties are not involve two legislative changes made 2011 Wis. Act 38. One retroactively repealed adjustment positive time. The § other 973.198, created Wis. Stat. a new statute that preserved opportunity early of release for certain procedure obtaining individuals and altered the for early adjustment positive release based on time.

| During period the time when was charged began serving prison first in 2008 until he his early Legislature sentence enacted and repealed provided then Wis. Act which in- opportunity early mates with the to earn release from prison. 302.113(2)(b) § 12. Enacted in Wis. Stat.

(2009-10), provided inmates F convicted Class to I opportunity day positive felonies the to earn one adjustment every days for time two of confinement.5 adjustment every Positive time was earned for two eligible positive adjustment Some inmates not for time 302.113(2)(b) (2009-10) under Wis. Stat. were § instead eli (2009-10). gible pursuant 304.06(1)(bg)1. to Wis. Stat. § Under statute, day positive the latter adjust inmates earned one every days ment time for three served. Wisconsin Stat. (2009-10) 304.06(1)(bg)1. provided: person felony

A under 973.01 sentenced s. for Class F to Class I offense, or a misdemeanor is not violent as defined in 301.048(2)(bm)l., ineligible adjust- positive s. and who is 302.113(2)(b) 973.01(3d)(b) pursuant ment time under s. to s. felony offense, or for Class to I F Class is a violent 301.048(2)(bm)l., may day positive as defined in s. earn one of adjustment every days time for he or served that she does any regulation prison not of violate the or not or does refuse neglect perform required assigned person may to or duties. The petition the earned release review for commission release supervision extended when he or she has of served term prison portion sentence, confinement of his or her bifurcated 302.045(3m)(b)l. sentencing as modified court under s. or 302.05(3)(c)2.a., positive adjustment less time he or she has earned. regulation any days of inmate did violate that the neglect perform required prison or or or refuse assigned duties. 302.113(2)(b) (2009-10) §

¶ 13. Wisconsin Stat. part: provided in relevant 973.01 for a misde-

An sentenced under s. inmate felony I that is not for a Class F to Class meanor or 301.048(2)(bm)l., may offense, defined s. violent as every 2 day adjustment time for positive earn one of any he she does not violate days or served neglect to not refuse or regulation prison of the or does required assigned duties. perform or Legislature passed In 2011 Wis. 2011 the budget early repealed part bill, of a which Act 38 as Consequently, provisions in Act 28. release 2009 Wis. generally pre- August prisoners 3, 2011, after were earning positive adjustment time. cluded from The 2011 Act also created Wis. Stat. preserved opportunity which for certain 973.198, early positive to earn release based on individuals adjustment 1, 2009 and time earned between October procur- August procedures 2011, altered the but early provides ing release. 973.198 in relevant Section part:

(1) serving im- an inmate who is a sentence When

posed posi- who under s. 973.01 and has earned adjustment 302.113, s. tive time under stats., 304.06, stats., or has under s. served portion his or sentence less the confinement her positive adjustment time earned between October 3, 2011, may August he or she petition sentencing adjust the sen- court section, this on the tence under based number days positive adjustment time the inmate he or has claims that she earned.

(3) days receipt petition Within 60 of a filed under (1), sentencing deny

sub. the court shall either the petition hearing hold a or and issue an order relating adjustment to the inmate's sentence supervision. release to extended (5) If the court determines that the inmate has time, positive adjustment may

earned the court prison by reduce the term of confinement in the remaining in amount of time the term of confine- sentence, prison portion up ment in of the less days, lengthen and shall the term of extended supervision length so that the total of the bifur- originally imposed cated sentence does not change. § Under 973.198, the Wis. Stat. inmates are permitted petition requesting early

not to file a release day they actually eligible until the Filing are for release. petition process § under 973.198 starts a early up days, though release that can take to 90 even eligible day the inmate is petition. for release on the he files the repealed contrast, Act, In under the days eligible before an inmate was for release the required notify sentencing DOC was court that it modify intended to inmate's sentence and release supervision. the inmate extended Wisconsin Stat. (2009-10) 302.113(2)(c)l. provided: days When an inmate is within 90 of release to (b), par. department supervision extended under notify sentencing court that it intends to shall modify and release the inmate the inmate's sentence (b), supervision par. under and the court to extended may hearing. If court hold a review does days hearing a review within 30 after notifi- schedule subsection, department may cation under this (b). proceed par. under sentencing

¶ 28, the 2009 Wis. Act 18. Under hearing to hold a within 30 court had the discretion days it notice from the DOC. Stat. after received Wis. 302.113(2)(c)l. sentencing opted § If the court to con- required hearing review, a it was to hold the duct early relating an order to the inmate's release issue days receiving the DOC's notice. within 60 Section 302.113(c)2.a. In law, contrast to the current an inmate day eligible. then be released on the first he was could Singh's rapid ¶ 19. case arose in the midst of legislative changes governing to the laws inmates' ability early prison to earn release from based on adjustment Singh positive charged 2008, time. In was by obtaining with a controlled substance fraud in 961.43(l)(a).6 § violation of Wis. Stat. He was convicted years probation, in and sentenced 2010 to three with three-year imposed stayed. a Singh's bifurcated sentence jail

sentence included six months of time aas probation.7 condition of July Singh

¶ In 2011, 20. committed another 961.43(l)(a). § violation of Stat. Wis. After the second 961.43(1)(a) provides: Wisconsin Stat. "It is unlawful § any person: acquire possession for To or obtain of controlled by misrepresentation, fraud, forgery, deception substance or subterfuge." Any person guilty who violates this section is of a 961.43(2). felony. H class Wis. Stat. § argument 14, At oral July this court was advised that on 2015, Singh's judgment of conviction for the 2008 Waukesha County prison year offense was amended from time to one county jail. may give served an issue adjustment Such an amendment rise to positive of whether would be entitled to county jail. time for time served in the It also question Singh's raises the of whether claim is moot if he was eligible adjustment positive only for time for the time served in prison, county jail. n.8, rather than the Sеe 24 infra. argument Because we first learned of this at oral and those Singh's probation first offense was offense, for his five-year bifurcated sentence He received revoked. consecutively to his offence, to be served for the second sentence. first positive petition In filed a for

adjustment pursuant to Wis. Stat. 973.198. time (DOC) Department re- of Corrections denied any early quest he did not serve for release because August prison 2009 and between October time Singh's petition denied 22. After the DOC petition adjustment positive time, filed a for writ of he corpus The circuit court with the circuit court. habeas dismissing quashing the writ and entered an order Singh's petition prejudice. with appeal, Singh argued ¶ the retroac- 23. On adjustment repeal positive time and the enact- tive post § facto laws. Stat. 973.198 were ex ment of Wis. appeals retroactive concluded that The court of repeal adjustment positive time was unconstitu- § facto law. not an ex tional, but that 973.198 was petition Singh on the for review filed § ex 973.198 was an of whether Wis. Stat. issue Kemper cross-petitioned on the issue of facto law.8 court, I do argued this were neither briefed nor before issues for to the circuit court them. I would remand not now address of this issue. a determination did an issue that we petitioned for review on also open law. accept involving the records cross-petition for petition and accepted court After this he had been released review, Singh informed the court that longer incarcerated. This and was no supervision extended on the issue of mootness parties to file briefs court ordered custody. release from due Wis. Stat. of whether Singh argues the issue he not moot because post facto law is 973.198 is an ex repeal whether Wis. Act 38's retroactive of 2009 positive adjustment Wis. Act. 28's time anwas facto law.

II denying petition A25. circuit court's order corpus presents question writ of habeas a mixed of fact App Pozo, and law. State v. 2002 WI 2dWis. 654 N.W.2d 12. We will not reverse the findings they clearly circuit court's of fact unless are corpus Id. erroneous. Whether a writ of habeas party seeking question available to the relief is a of law independently that we review of the determinations appeals. rendered the circuit court and the court of Id. Similarly,

¶ 26. whether a statute violates the ex post facto clauses of the Wisconsin and United States question Constitutions is a of law that this Court remains on supervision subject extended to incarceration until moot, 2018. He further asserts that even if his case is this court should address this issue. argues The State that both the issue raises in his petition and the issue the cross-petition State raises in its are Nevertheless, moot. argues the State that this court should consider the issue in cross-petition raised its because other eligible inmates who were positive adjustment for time are likely to raise the issue of repeal whether the retroactive early an release is facto violation. they moot,

Even if are we address both the issue raised in Singh's petition and the issue raised in the State's cross- petition. public Both issues are of importance, likely are inmates, affect other constitutionality involve the of a statute. State ex rel. La Crosse Tribune v. Cir. Ct. La Crosse for (1983). Cty., 220, 229, 115 Wis. 2d 340 N.W.2d460 independently of the of the determinations rеviews appeals. Elward, v. State and the court circuit court App ¶ 756. 628, 2d 866 N.W.2d 5, 363 Wis. 2015 WI legislative strong presumption that enact- There is LLC v. Milwaukee Bostco are constitutional. ments Sewerage 2d Dist., 350 Wis. WI Metro. of estab- 160. has the burden 554, 835 N.W.2d challenged beyond lishing that the a reasonable doubt Chappy legislation LIRC, v. is unconstitutional. (1987). 172, 184-85, 401 N.W.2d 568 Wis. 2d I I I by Kem- the issue raised 27. We address first cross-petition per's to our it is foundational because petition for raised his of the issue discussion that Wis. decide claim Before we can review. days, delays early up to 90 release 973.198 Stat. eligible early he was decide whether we must first 2009 Wis. Act. release under Youngblood, 37, 42 497 U.S. v. In Collins explained Supreme (1990), Court United State punishment any for a that makes statute pro- is it is committed after crime more burdensome explicitly law. This court an ex hibited as concluding Collins, adopted forth the standard set that: law, by the Wisconsin prohibited

[A]n ex as a crime an Constitution, any punishes 'which law: when committed, was innocent which previously act punishment done; burdensome which makes more commission, deprives one crime, or which after its for a according any available crime of defense charged with . . ..' act was committed at the time the to law Thiel, State v. 2d 695, 703, Wis. 524 N.W.2d 641 (1994) 42). (quoting Collins, 497 U.S. at Kemper appeals

¶ 29. asserts the court of erred when it determined that a law violates the ex post imposes greater punishment if clauses it than the law in effect at the time an inmate was convicted and sentenced for an offense. See State ex rel. Singh Kemper, App v. 2014 WI 353 Wis. 2d argues repeal 520, 846 N.W.2d 820. He that the of 2009 post Act Wis. 28 cannot an ex be facto violation as applied Singh's 2008 offense because it did not punishment beyond increase the what it was at the time of the 2008 offense. Relying Kurzawa, on State v. 180 Wis. 2d (1994), Kemper

502, 511, 509 N.W.2d 712 advances aspects that one of the fundamental of ex analysis changes is its focus on in the law relative to allegedly illegal the time of the defendant's behavior. eligible early He concludes that was not release because committed the 2008 offense prior to the enactment of 2009 Wis. Act. 28. persuaded by Kemper's argu- 31. We are not appeals determining ment that the court of erred in punishment that an ex facto law increases the imposed sentencing, at the time of conviction and as agree well as at the time it was Rather, committed. we appeals with the court of that an ex facto law punishment imposed increased the after an offense has determining been committed. In whether such a change punishment here, occurred we must exam- progression ine how the criminal cases fit rapid changes within gov- the timeline of in the law erning early prison. release from Although not in effect

¶ Act 28 was 2009 Wis. 32. Singh 2008, it was in his first offense committed when retroactively. 28, apply Wis. Act 2009 enacted 28, inmates Wis. Act to 2009 §§ 2722, 9311. Pursuant begin could 31, 1999 after December on or sentenced staring adjustment 1, earning positive on October time Singh in 2010 for sentenced time was At the 2009. in Act. 28 was 2008, 2009 Wis. in he committed offense effect. Legislature passed Subsequently,

¶ early repealed modified the 38, which Act Wis. provisions Under 2011 Wis. Act 28. in 2009 release earning precluded prisoners from were 38, Act Wis. August adjustment 3, 2011. When positive after time July Singh 25, 2011, on his second offense committed By place. he was the time in Act 28 was still 2009 Wis. year, as as well later that and sentenced convicted prison began in in to serve his sentence he when repealed. had 2009 Act been complicated that Singh's the fact case repeal prison prior to the in time he did not serve in offense After his first Act. 28. 2009 Wis. years of three and sentenced convicted was jail as a condition probation, time months with six Singh's in offense second probation. not until It was probation was re- first offence for the that his five-year sen- bifurcated Later, he received voked. consecutively to be served offense for the second tence day prison was first first sentence. with his January 4, 2012. appeals that determined court of 35. The sen-

"[w]hen was convicted or committed multiple its 2009 act and his offenses, tenced on Singh, 353 opportunities early the law." were release added). that (emphasis It concluded 2dWis. eliminating Singh's eligibility early release ensured prison, that he would serve his full sentence in result- ing significant risk he would serve more confinement time than under 2009 Wis. Act 28. Id. prohibit "The ex facto clauses this." Id. recognize ordinarily ¶ 36. We an inmate will be convicted and under sentenced the law that was in effect at the time the offense was In committed. this Kemper's case, however, focus on the timeframe for post may when an ex facto violation occur too narrow applied retroactively because Wis. Act 28 31, inmates sentenced on or after December 1999. At Singh the time committed the 2008 offense sen- tencing felony structure for a H Class did not offer the opportunity positive adjustment to earn time. How- application positive adjustment ever, the retroactive of applied time means that 2009 ActWis. at time Singh was convicted and sentenced. argument accept 37. Even if for the sake of we

Kemper's changes focus on in the law at the time the offense, defendant committed he is incorrect that Singh eligible early Although was for release. Singh prior committed his 2008, first offense in to the enactment of 2009 28, Wis. Act he committed his July Singh second offense on 25, 2011. At the time early provi- his offense, committed second release place. sions of2009 Wis.Act 28 were After his second Singh's probation offense, for his first offense was revoked and he served his sentences for both offenses consecutively. Singh posi- Thus, was entitled earn adjustment prison tive time for the time he served July as a of result he offense committed on 2011. Kemper dispute does not that the retroac- repeal early post release would violate the ex

tive Singh eligible positive if had facto clauses been for adjustment Singh Instead, time. he asserts that was eligible early upon positive release based never adjustment crime time because committed his However, before the enactment of 2009 Wis. Act 28. Supreme Wisconsin and United Court both States precedent prohibiting support in- ex facto laws cluding the time an inmate is and sentenced. convicted animating principle underlying

¶ 39. The the ex concept warning. of fair clauses is (quoting Kurzawa, 180 Wis. 2d at 513 Marks v. United (1977)). States, 430 U.S. 191-92 As the United Supreme explained, "[t]hrough [the States Court sought facto] prohibition, the Framers to assure legislative give warning their effect Acts fair rely meaning permit their until and explicitly changed." individuals to on Graham, Weaver v. 450 U.S. (1981). 28-29 repeal Kemper that the seems to believe mitigating place that was in when was law simply put Singh position in the that he

sentenced will he would have been in at the time committed ignore However, crime. cannot the fact that we at the time of his relied on 2009 Wis. Act 28 as the law plea sentencing. Supreme ¶ Weaver, 41. In the United States application the retroactive Court considered whether post "gain-time" provision an ex facto of a revised was explained that "a at court law. 450 U.S. 31. Weaver imprisonment eligibility prisoner's is a for reduced entering significant defendant's factor into both the judge's plea bargain calculation of decision to and the Accordingly, imposed." the sentence to be Id. at 32. prisoners Weaver concluded that for who committed substantially enacted, crimes was it before statute consequences already altered the attached to a crime "change[d] quantum completed and therefore of punishment." Id. at 33. Lynce Mathis, Likewise, 42. v. 519 U.S. (1997), Supreme

446-47 Court concluded that it post good-time was ex an facto violation to cancel pursuant credits that had awarded been to statutes enacted after the date the defendant committed his Lynce, away In offense. a retroactive statute took good-time credits that existed at the time of conviction sentencing, but did not exist at the time the Lynce defendant committed the offense. Id. at 447. The court remanded the case for a determination good-time number credits that the defendant accu- mulated under the statutes that existed at the time of sentencing, concluding they his conviction and that could not be cancelled the retroactive law. Id. at 449. Lynce acknowledged "[t]he 43. bulk of our jurisprudence" ex involves claims that a law greater punishment inflicted a than at the time the offense was committed." Id. at However, it ex- plained simply an facto law must be retrospective apply occurring in that it "must to events before its enactment." Id. Applying protection the ex sentencing prin-

conviction and ciple is consistent with the places that "the Constitution limits on the sover- eign's ability lawmaking power modify to use its bargains subjects." it has made with its Id. at 440. This principle protects engaged nego- basic a "defendant may acknowledgment guilt tiations that lead to an punishment." and a suitable Id. Similarly,

¶ Matthews, ex rel. Eder v. State 45. (Ct. 1983), App. the 115 Wis. 2d 340 N.W.2d appeals addressed the issue of court of Wisconsin "good application vio- time" calculation of whether Matthews court facto clauses. The lated the ex "good explained application of the time" for- that the period the defendant's increase the of mula would "[a] at 133. Matthews concluded that confinement. Id. punishment of an which increases or alters law detriment, he has been convicted offender to his after . . sentenced, an ex facto law . ." and constitutes added). (emphasis Id. position adopted advanced If this court retroactively

by Kemper can increase law length after sentenc- time an inmate is incarcerated of ing, Matthews. We decline to have to overrule we would United States it is consistent with do so because precedent. Supreme Court early provisions Wis. of 2009 47. The release and was convicted in effect when

Act were time he offence, well as at the the first as sentenced for Just as ^Weaver the second offencе. committed early impermis- repeal would Matthews, release Singh's punishment sibly retroactively after increase Wisconsin and sentenced. Under both he was convicted early repeal precedent, Supreme Court an offense violates the commission of release after post facto clauses. agree Accordingly, court of with the we adjustment repeal positive appeals that retroactive post the ex Act 38 violates time in 2011 Wis. States Constitu- and United clauses of the Wisconsin tions.

1—I> ¶ 49. We address next the issue raised in petition newly for review. He contends that the created § Wis. Stat. 973.198 violates the ex facto clauses because it extends the amount of time an inmate is by up days eligible incarcerated to 90 after he is for early release.9

¶ 50. Under 2009 Wis. Act the DOC was required notify sentencing days court 90 before eligible an inmate was for release that it intended to modify the inmate's sentence and release the inmate to 302.113(2)(c)l. supervision. § extended (2009-10). Wis. Stat. sentencing court had the discretion to hearing days hold a within 30 after it received notice from the DOC. Id. sentencing opted

¶ 51. If the court to conduct a hearing, required hearing review it was to hold the relating early issue an order to the inmate's release days receiving within 60 the DOC's notice. Wis. Stat. 302.113(c)(2)a. (2009-10). § When the court did not hearing days schedule a review within 30 after notifi cation from DOC, the inmate would be released on 302.113(2)(b) (c)1. day eligible. § the first he was & (2009-10). Although posi- 2011 Wis. Act 38 eliminated adjustment August by enacting

tive time after 3, 2011, § Wis. 973.198, Stat. it allowed those inmates who 9At the appeals, Singh court of challenged the role of the sentencing court under Wis. Stat. 973.198. § raised this in petition issue his for review. We need not address that issue because we conclude that Wis. Stat. 973.198 is an ex § up facto law due to the fact day that it adds to a delay compared release prior to the law. adjustment positive Act while 2009 Wis. time earned early petition release. Rather 28 was in effect procedures Stat. set forth Wis. retain the than (2009-10), Legislature enacted § 302.113 early governs process for § 973.198, which now positive adjustment inmates who earned release for Act 28. time under 2009 Wis. 973.198(1), in- an to Wis. Stat. 53. Pursuant positive adjustment under Wis. time

mate who earned (2009-10) early may petition re- § for 302.113 Stat. portion ofhis the after he has served confinement lease adjustment any positive time earned. sentence minus petition, days receiving inmate's the the 60 of Within deny petition sentencing or hold either the court "shall relating hearing inmate's to the and issue an order a supervi- adjustment to extended and release sentence 973.198(3). that an § determines If the court sion." "may adjustment positive time, it earned inmate has by prison the in the term of confinement reduce remaining in term of confinement time the amount of days. up prison portion to 30 . . ." sentence, less 973.198(1). § Singh argues §

¶ 973.198 vio- that Wis. Stat. 54. delays post it facto clauses because lates the ex adjust- positive earned inmates who have release of process 28, for Wis. Act ment time. Under 2009 days early began obtaining inmates before 90 release procedures ‍​​‌​‌‌​​‌‌‌​​‌​​‌​‌‌‌​‌‌​​​‌​​​​‌‌‌​‌‌​‌​​​​‌‌​​‍eligible for Then, to be released. were completed processing within were an inmate's release eligibility days released on his the inmate was date. § 973.198, an Stat. contrast, In under Wis. 55. early petition on release based file a for

inmatе cannot positive adjustment he is the date on which time until petition filing eligible of the for release. first begins process determining eligibility for for release up days. that can take to 90 For inmates who have positive adjustment up § time, earned 973.198 adds days comparison of incarceration to a sentence in (2009-10). early § release under Wis. Stat. 302.113 Kemper change counters that in the merely § law introduced Wis. Stat. 973.198 was procedural. Although procedural change may have a impact substantive that violates the ex Kemper speculative clauses, asserts that the and at possibility tenuated of an increase in an inmate's actual term of confinement is not an ex facto law. e.g., Dep't See, Cal. Morales, Corr. v. U.S. (1995). Relying on Florida, Dobbert v. 432 U.S. (1977), argues may § 282, 293-94 he that 973.198 have employed determining altered the methods punishment imposed, change quantum but did not punishment attached to the crime. According Kemper, Wis. Stat. 973.198 does not violate the ex facto clauses because the sentencing grant deny court retained discretion to or request positive adjustment an inmate's time under any both laws. Thus he asserts that claim of increased pursuant specu- § confinement to 973.198 would be too lative and attenuated to constitute an ex disagree Kemper violation. We with because the un- delay avoidable an inmate's release under Wis. Stat. speculative § 973.198 is neither nor attenuated. Kemper's ¶ misplaced. 58. reliance on Dobbert is argues change Dobbert, In the defendant that a in the judge jury imposition role of the in the of the death sentence constituted an ex facto violation. 432 U.S. at 292. The Dobbert court determined that the law clearly procedural at issue in that case was because change quantum punishment "there was no in the of in Dob- Id. at 293-94. Unlike to crime." attached may an inmate's bert, Stat. 973.198 increase Wis. days. by up to 90 incarceration Supreme ¶ Morales, In the United States a increased the issue of when claim of Court addressed speculative con- too and attenuated to is confinement Morales an ex facto violation. U.S. 499. stitute suitability change frequency parole a involved hearings to the distinguishable this that from the facts of Lindsey Weaver, v. well as 450 U.S. Wash- case as (1937), ington, Florida, 482 and Miller v. 301 U.S. 397 (1987). Morales, 514 See U.S. at 507-08. U.S. at issue in made 60. The amendment Morales only change It intro- one the law. 541 U.S. at 507. to possibility parole hear- after the initial duced the that hearing ing, to another the board would not have hold years probability if it that found no reasonable for two during parole would suitable for the inmate be deemed sentencing period. changing Id. Rather than that range offense, an the amendment altered fixing parole a release date to be followed in method Id. at 507-08. identical standards. under substantive many legislative explained 61. Morales sentencing procedures adjustments parole impact might produce risk on remote "some expected prisoner's As Id. at 508. term of confinement." examples, ad- certain "innocuous Morales identified membership changes justments" of the such as prison on hours terms or restrictions board library. may prison use Id. inmates early changes under Wis. release adjustments. innocuous An § 973.198 are not Stat. eligibility released on his inmate who would have been repеaled § 302.113 Wis. Stat. under now date (2009-10), petition he until for release cannot file procedure reaches that same Then, date. for ob- taining up days release will take to 90 after the petition length § is filed. Thus, 973.198 increases the every eligible early incarceration for inmate who is for positive adjustment. arbitrary release based on This punishment post increase violates the ex facto clauses of the Wisconsin and United States constitu- tions. agree 63. We with that this court's deci-

sion in State ex rel. Powers, Mueller v. Wis. 2d (1974), analogous. 221 N.W.2d 692 Mueller, In in- prison system sought mates in the state a declaration change that a eligibility in the law that extended their initial parole years years

date for from two to five imprisonment post into their violated the ex clauses of the Wisconsin and United States Constitu- tions. Id. at 645.

¶ 64. This court determined that the statute at issue in Mueller was unconstitutional because the new law by increased "the peti- time that must be served they eligible parole tioners before are for consideration years very from practical two to five in a real and sense imposes penalty an additional and violates the consti- against tutional legislation." inhibition ex Id. at 647. imposes Likewise, Wis. Stat. 973.198 punishment additional because it increases the time they eligible served early inmates before are release. opinion 65. This should not be read to revive

the alternative definition of an facto violation any stated in Mueller as law "which alters the situa- tion of disadvantage." the accused to his Id. at 646 (citation omitted). Thiel, In 188 Wis. 2d at this language court withdrew explaining this Mueller, from that an ex facto violation must increase the simply punishment offense, not alter the for an situa- disadvantage. of a to his tion defendant Although important note, to this 66. discrete narrowing not the issues in this of Mueller does affect changing parole eligi- case. conclusion that Mueller's years bility years five is an ex facto from two to legal proper the violation is also based on standard penalty." "imposes at that it an additional 64 Wis. 2d up day argues to Likewise, that imposes delay § in under Stat. 973.198 an release Wis. penalty imposed additional that was under prior law. 67. A similar conclusion reached United supports Supreme this Court further court's

States Weaver, In at the court determination. U.S. change "gain in Florida's time for determined that good time that inmates conduct" statute extended the required spend prison. to in Similar the statu- were tory change Florida law case, at issue in this monthly gain-time [d] credits "reduce the number of by prison an inmate who abides rules available to assigned adequately performs at tasks." Id. his explained gain- reduction in "this Weaver court lengthens period that someone time accumulation spend prison." petitioner's position Id. must United both Wisconsin and States 68. Under change precedent, Supreme in the a retroactive Court length of an inmate's sentence law that increases the agree with clauses. We violates the ex § are inmates who 973.198, Wis. Stat. that under up adjustment eligible positive released time are days Thus, Act 28. we than 2009 Wis. later under constitutional 973.198 violates the conclude that prohibition against laws circuit court erred when it dismissed the writ habeas corpus.

V ¶ 69. I would remand to the circuit court address whether under the current circumstances it is appropriate grant now the writ and what additional any, Although relief, if is warranted. has been prison, supervi- released from he remains on extended "custody" purposes sion which is considered for the of a corpus. writ of habeas Supreme precedent

¶ 70. United States Court physical impris- leaves "no doubt" that in addition to liberty onment, there are other restraints on that are "custody corpus purposes— considered for habeas including post-release supervision:

History, usage, precedent that, can leave no doubt physical imprisonment, besides other there are re- liberty, straints on man's by restraints not shared public generally, the thought which have been suffi- cient in English-speaking the support world to the corpus. issuance of habeas Cunningham, (1963); Jones v. 371 U.S. 240 see (2d 2006) Earley Murray, also v. 451 F.3d 75 Cir. ("[p]ost-release supervision, admitting possibility the jail revocation time, additional is considered to 'custody'" purposes corpus.). be for the of habeas Following

¶ 71. Jones, the clear directive the appeals explained Wisconsin court of that it is "settled" corpus require physical that habeas does not actual imprisonment. State rel. v. Bo Wohlfahrt (1980). dette, 130, 133-34, 289 2d N.W.2d Wis. subject Rather, is whether one is the focus on by public generally: shared the restraints not law, we find that federal habeas Reviewing federal corpus custody." "in It is settled that is available to one corpus habeas has not been limited to use of physical is in applicant where the actual situations subject one to restraints not custody, is available to but It held public generally. has been shared custody" synonymous "in with "re- language liberty." straint of

Id. sug- argument, Singh's At oral counsel changing super-

gested extended the conditions of supervision reducing the term extended vision or may appropriate case. remedies in this As be Supreme explained in v. United Court States Carafas (1968), [federal habeas Lavallee, U.S. "the may corpus] limit relief that be does not statute physical discharge applicant granted from custody. respect to relief with the Its mandate is broad '[t]he granted. provides may that court It that be justice dispose and . of matter as law shall. . the " require.' may Although ¶ well settled on the law be 73. certainly are case not. issue, this the facts of this moving target, part facts of this case have been disposition the number to of at least one of due the Singh post-conviction has filed. At oral that motions argument, for the first time this court learned to was modified for the 2008 offense sentence grounds year jail, for do not know the but we one Singh Apparently, also received this modification. supervi- had extended credit for time served 155 portion sion of the sentence vacated. See Justice Ziegler's ¶ concurrence/dissent, 149. acknowledges,

¶ As one of the dissents there questions are of fact in case this relevant to issue of Singh positive adjustment whether is entitled to time by that tiary be cannot answered reference the eviden- generally before court. record this See Chief Roggensack's ¶ dissent, Justice instance, 218-21. For opportunity the dissent states that there was an for Singh positive adjustment July to earn time on the potential 2011 offense which had the an ex be violation, us, but "from the record it before is not possible to make that factual . ..." determination Id. ("The potential ¶ ¶ also id. See 219 an for repeal on facto violation crime second due to of PAT possible following is not to determine due to the presented by "); id., ¶ circumstances ("His this case . . . day July first confinement for the crime is uncertain due to modification ("It County Judgment"); may id., Waukesha be prove, can as a factual matter, that he was longer confined on the second sentence than should type may have occurred and that some of relief be )"; Ziegler's . accorded . . Justice concurrence/dissent, ("It exactly 148 n. is unclear from the record what ."). petition date this . . was filed fact-finding 75. Because this court is not a court, circuit court better suited to make regarding determination whether is entitled to e.g., See, Schanke, relief.10 Mitchell Bank v. 2004 WI Ziegler's Justice concurrence/dissent out reaches facts that are not in the argued record were not or briefed party. either For example, the concurrence/dissent con ducted a DOC try Offender Locator internet search to discharge determine maximum Ziegler's date. Justice | (remanding 2d 676 N.W.2d 84, 268 Wis. findings specific "this because circuit court for to the body. fact-finding court is The circuit is not a court determinations."). precise these to make better suited Accordingly, a deter- the circuit for I would remand to circumstances under the current mination of whether grant appropriate what the writ and it is now any, if is warranted. relief, additional

r-H > early conclude that because sum, In we provisions in effect Act 28 were of 2009 Wis. release for the first convicted and sentenced when was the second the time he committed offense, as well as at adjustment repeal positive time of offense, retroactive post clauses of the ex facto Act 38 violates in 2011 Wis. Constitutions. We and United States the Wisconsin § violates the Stat. 973.198 conclude that Wis. also against prohibition facto laws ex constitutional punishment an offense more it makes the because it committed. after was burdensome appeals' Accordingly, affirm the court we positive repeal the retroactive determination adjustment violation, but is an ex time Stat. 973.198 that Wis. its determination reverse against prohibition violate the constitutional does not Additionally, remand the I would laws. a determination court for to the circuit cause it is now circumstances the current whether under grant appropriate what additional the writ and any, is warranted. relief, if gather to want to concurrence/dissent, 149 & n.12. It seems facts to these uncertain upon record and based

facts not of any relief. deny Singh By appeals the Court.—The decision of the court of part part. is affirmed in and reversed in ¶ (concurring). 78. DAVID T. PROSSER, J. This complicated presents case numerous issues for the legal. Sorting court. factual; Some are some are out indispensable understanding these issues is this Recognizing case. the multitude of fact situations that explaining will be affected our decision is critical in the law.

r-H petitioner, ¶ Singh (Singh), 79. The Aman D. has multiple been convicted of offenses. Three of his con- pertinent victions are to this case. charged 80. 8, On 2008, December was

f County violating in Waukesha with five counts of Wis. 961.43(a), felony. § Stat. a Class H His offenses were pled guilty committed in 2008. On March 29, 2010, he Complaint. to Count 1 of the He was sentenced on April 29, 2010. August charged 81. On was violating

with two additiоnal counts of Wis. Stat. 961.43(a), § still Class H felonies, in Milwaukee County. charged He also was with a misdemeanor. The July August felonies were committed on 25, 2011, and Singh pled guilty charges 10, 2011. to all three on November 2011, and he was sentenced on December 29,

HH 1—1 legislature passed In June 2009 the and the governor approved budget the executive for the budget 2009-11 biennium. Included in the were exten- changes § is entitled 302.113, which to Wis. Stat. sive felony supervision offenders extended "Release to changes serving to 302.113 life sentences." 1, 2009. effect until October did not take date, the statute this effective 83. Prior to prison required to serve inmates sentenced most portion Wis. Stat. of their sentence. full confinement 302.113(2) (2007-08). exceptions There were several § general rule. to this legislation made numerous The 2009 including changes sentencing

changes that law, in the prison persons1 permitted earn to to sentenced certain (PAT) adjustment "positive time" that shortened persons period re- were before these of confinement supervision. 28, 2009 Wis. Act See to extended leased case, Stat. this Wis. §§ Pertinent to 2720-2733.2 302.113(2) (b), paragraph which add § was amended to part, read, in

(b) s. 973.01 for a under An inmate sentenced felony that is F to Class I or for a Class misdemeanor 301.048(2)(bm)l., offense, as defined s. not a violent every time for day adjustment may positive earn one any does not violate days that he or she 2 served neglect or does not refuse regulation prison of the or inmate con- assigned duties. An required or perform 1 973.01(3d)(b) (2009-10) PAT un made Stat. § Wisconsin "posed high by the DOC to persons determined available to reoffending." risk amendments regarding recent context additional For Early laws, Klingele, The Cecelia sentencing see Wisconsin's (2012); 415, Release, 436-39 L. Rev. Early 114 W.Va. Demise of Early Assess Revolution: Norris, Earned Release J. Jesse L. Rev. Marq. Strategies, State-Level ments and Why Prisoners: O'Hear, Time (2012); (and Good Conduct Michael Early How) Toward Provide Credits Should Wisconsin (2014). Release, Marq. L. Rev. 504-07 victed of a felony misdemeanor or a Class F to I Class offense, is not a violent as defined in s. 301.048(2)(bm)l., shall be released super- to extended vision when he or she has served the term of confine- prison portion ment in tence, of his or her bifurcated sen- as modified sentencing court under s. 301.045(3m)(b)l. 302.05(3)(c)2.a., or applicable, if less positive adjustment time he or she has earned. 9311(4) pro- 85. Section of 2009 Wis. Act 28 302.113(2) vided that Section of the statutes first applies person "to a sentenced on December 1999." 302.113(2)(b) applied § In other words, Wis. Stat. ret- roactively persons sentenced on or after December 31, 1999. budget

¶ 86. The bill contained a sentence stat- 302.113(2)(b) ing apply prospectively did not to a "person sentenced on or after the effective date of the governor subdivision." However, the vetoed that sen- tence. legislation 87. The 2009 also created Wis. Stat. 302.113(2)(c), prescribed

§ procedures which the releasing supervision an inmate to extended after he or she accrued PAT:

302.113(2)(c)l.When an inmate is within days 90 of release to supervision extended par. (b), under the department notify shall the sentencing court that it modify intends to the inmate's sentence and release the inmate to supervision extended par. (b), under and the may court hearing. hold a review If the court does not schedule hearing a review days within 30 after notification subsection, under this department the (b). may proceed par. under legislature passed In 2011 the 2011 Wis. substantially Act which revised the law with re- spect early supervision. to release to extended Section

160 legislation repealed provisions 38 of the new the PAT 302.113(2)(b) during § in Wis. Stat. were created previous legislative the session. repealed

¶ 89. Section of the Act also the procedures specified release in Wis. Stat. 302.113(2)(c) (2009-10). place, § their In Section of the Act created Wis. Stat. 973.198: adjustment; positive adjustment Sentence 973.198 (1) time. an serving When inmate who is a sentence imposed positive s. under 973.01 and who has earned adjustment 302.11, stats., time under s. or under 304.06, stats., s. has served the confinement portion or positive adjustment of his her sentence less 1, 2009, time earned between October and the effective date], date of this subsection . [LRB .. inserts he or may petition sentencing adjust she court section, sentence under this based on the number of days positive adjustment time the inmate claims that he or she has earned.

(3) days receipt petition Within 60 of a filed (1), sentencing deny under sub. court shall either petition hearing or hold a an order issue relating adjustment inmate's sentence supervision. release to extended (5) If the court determines that the inmate has time, positive adjustment may earned the court reduce prison by the term of confinement in the amount of remaining prison time the term confinement sentence, portion up days, and shall of the less lengthen supervision term of that the extended so length originally total of the bifurcated sentence im- posed change. does

(6) petition An inmate who submits a under this may apply adjustment the same section for period year sentence under s. 973.195 for a of one from petition. the date of the

(Alterations original.) preserved an in- for

¶ 973.198 90. New Section 1, October earned between that had been mate the PAT prevented August the inmate it 3, 2011, but by advantage taking earned of what had been full from petition the delaying until the inmate's date for the eligible release, took for which the inmate was date period the reduced of confinement the into account repealed 2009 law. PAT earned under

i—IrHi—I changes at to the law ¶ of the Evaluation 91. grounded dates: December in three in this case is issue help August 3, 2011. To 2009; and 1999; 1, October following big picture, the reader understand periods on of time based to four will refer discussion these dates. to the time

¶ "PAT window" refers First, the 92. ending beginning period 2009, and on October August PAT Act 28 made available 3, 2011. 2009 Wis. 302.113(2)(b) § sentenced for inmates Stat. under Wis. during period. eligible this time crimes for "retroactivity refers to window" Second, 93. beginning period 31, 1999, and on December the time day ending September October 30, 2009—the before on 9311(4) PAT Act 28 made of 2009 Wis. 1, 2009. Section eligible dur- crimes inmates sentenced available to retroactivity ing window. period December of time Third, before

31, 1999. August period time Fourth, the after repealed the PAT Act 38 2011 Wis.

2011, the date 302.113(2)(b). provisions Stat. Wis. Every

¶ 96. relevant "event" described below oc- periods. curs in one of these four time The court must (1) following consider the dates of the events: the date person (2) eligible a committed an offense; the date the person (3) eligible was sentenced for the offense; person's began part date the as of the confinement (4) person's bifurcated sentence; and the date the person's part ended as of that sentence. confinement Examining periods the four time in con- junction categories with the four events reveals 35 of persons might analyzed possible who be ex impact following change the 2011 in the law.3The Appendix categories persons. chart in the lists the 35 of 3 Calculating the total number of combinations of dates and events question is a of product mathematics. The rule is a fundamental mathematical principle: "[S]uppose that Ais a set objects of a Band is a objects. set of b ways Then the number of from B is a pick object one from A object and then one b."X Fred S. Barry Tesman, Roberts & Applied Combinatorics 17 (2d 2009) omitted). (emphasis ed. example, guest For attend ing wedding might have appetizer two choices of (soup or salad) and three choices of (beef, chicken, main course or vegetarian). To determine the total number of combinations of appetizers and main courses available guest, to each multiply (2) appetizers number of times the number of main courses (3) for a possible total of 6 appetizers of combinations and main courses.

Applying product rule to the dates and events under review in this case returns 256 different of combinations relevant events periods. person and time A convicted of an eligible may offense have during any committed the offense periods, the four time been sentenced for the during offense any of the four periods, begun time serving the confinement portion during of a any sentence periods, the four time ended the portion confinement during of the any sentence periods. the four time This person means that a could have eligible committed an 31, 1999, crime before during December retroactivity window, during window, the PAT or after clearly categories on the chart are 98. Thirteen analysis. any post irrelevant to (cid:127) leg- Categories because the 1-10 are irrelevant persons PAT available to

islature never made 31, 1999, for com- December sentenced before changes mitting eligible in The 2011 an offense. upon persons in these had no effect law categories.

(cid:127) Categories 11 and 21 are irrelevant because categories

persons in ended the confine- these portion of before October ment their sentences persons 1, These ended their confine- 2009. legislature PAT and created ments before qualified never for it. thus (cid:127) legisla- Category is irrelevant because persons made who

ture never PAT available "eligible" August 3, an offense committed after 2011. categories may

¶ 99. additional be re- Seven they per- moved from consideration because involve portion sons who ended the confinement of their sen- August 3, tences 2011. Whether sentenced before retroactivity during persons in window, as were categories during PAT 12, 14, 22, 24, and or categories persons window, 17, 27, were as August time each periods 2011. Because we consider four event, multiply relevant we return 4x4x4x4to periods. of events and time combinations of Fortunately, physics impossible the laws of render most of one periods the 256 combinations time events. As example, impossible person who an it is for a committed 3, 2011, eligible August to end offense after the confinement portion for that offense before December the sentence Removing temporally impossible combinations leaves 35 remaining catеgories persons. persons eligible during

these were to accrue PAT portions overlapped of their confinement that with the Any ap- PAT window. PAT earned should have been plied their sentences of confinement to accelerate supervision. their release to extended The 2011 law change persons had no effect on these absent addi- Removing tional facts not stated. these additional 7 categories categories reduces the number of relevant persons remaining catego- 100. The in the portion ries4 did not end the confinement their prison legislature changed sentences until after the persons the law 2011 to end PAT.These are entitled any, they during PAT, to all the if earned the PAT preserved by legisla- That window. time was the 2011 tion. persons 101. What at issue here is whether categories

in these 15 are entitled to earn PAT after August 3, 2011.

¶ permit 102. The 2011 statute does seem to any person August 3, to earn PAT after However, 2011. eligible some inmates committed offenses, were sen- tenced their offenses, on and commenced their confine- Theoretically, ment within the PAT window. these strongest inmates have the case under the Ex Post challenge Facto Clauses to the termination their of ability August to earn 3, PAT after 2011. It must be legislation remembered, however, the 2009 eligible treated inmates were who sentenced for of- during exactly retroactivity fenses the window the same as inmates who committed offenses and were during PAT sentenced the window. clear, remaining 13, 15, 16, 18, Tobe the 15 categories are

19, 20, 23, 25, 26, 29, 30, 28, 32, 33, and 34. analyze Consequently, the court must 103. categories persons committed who either of

whether eligible offenses sentenced for such offenses or were retroactivity qualified during to make are window the persons categories of as facto claims the same eligible sentenced offenses were who committed during resolved, this PAT Once issue the window. any categories question whether be answered the must principles, persons entitled, are under ex August 3, 2011. to earn PAT after

I—I> By enacting legisla- Wis. Act the only changed prospectively of sentenc- the law ture not ing beginning changed all 2009, but also

on October during retroactivity imposed window for the sentences eligible eligible crimes. This who committed inmates mitigating change an the had immediate effect law during retroactivity persons on sentenced confined sentencing persons Although these antici- window. at pated would last for entire that their confinement sentencing specified Act court, 2009 Wis. term thereby gave opportunity earn them PAT length of their reduce the confinement. Notably, mitigation persons' these sentencing, upon rather the date

sentences turned underlying they date on committed the than the which 9311(4) ("[T]he eligible 28, § Act offense. See Wis. 302.113(2)(b)... section[] of the statutes creation of applies] person December first sentenced on 1999."). legislature mitigating effects extended qualified persons or of all sentenced on after PAT to they regardless com- 31, of whether December 1999— eligible or that date. mitted an offense before after person eligible an Furthermore, committed who during retroactivity might offense the window never- gained theless have PAT if access to he or she received during a sentence the PAT window. person 1, 106. After 2009, October sentenced eligible during retroactivity

for an offense the window expectation had an person of PAT access identical to that of a during

sentenced the PAT window. Because opportunity 2011 Wis. Act 38 eliminated the con- earning persons during tinue retroactivity PAT for sentenced persons during

window and sentenced groups experienced the PAT window, both the same Accordingly, increase the term of confinement. we analyze together groups determining can both when repeal August whether the of PAT after 3, vio- prohibitions lated the constitutional ex on facto laws.

V ¶ 107. Constitution, Under the United States pass any "No . State shall. . Bill Attainder, of ex impairing Obligation Law, or Law Con of § I, 10, tracts ..." U.S. Const. art. cl. Wisconsin's provides: attainder, Constitution "No bill of any obligations impairing law, nor law passed contracts, I, shall ever be . . . ." Wis. Const. art. long pronouncements § 12. "We have looked to the Supreme construing the United States Court in Ex Post Facto Clause of the Federal as a Constitution guide construing the Ex Post Facto Clause Thiel, Wisconsin Constitution." State v. 2d Wis. (1994) (footnote omitted). 524 N.W.2d 641 Supreme ¶ 108. The Court of United States an conducted extensive review of its own Ex Post Facto jurisprudence Youngblood, Clause in Collins v. (1990). opinion by Chief Justice Rehn In an U.S. 37 language began quist, from Calder v. with the Court (3 Dall.) (1798), Justice in which Bull, 3 U.S. legislative "expounded Acts which those Chase Samuel implicated ‍​​‌​‌‌​​‌‌‌​​‌​​‌​‌‌‌​‌‌​​​‌​​​​‌‌‌​‌‌​‌​​​​‌‌​​‍the concern of the Ex Post core his view Collins, at 497 U.S. 41-42. Clause." Facto types four of laws Justice Chase described to contravene the constitutional that he understood prohibition: laws, post facto laws I ex

I will state what consider prohibition. intent of the the words and the within Every action done before the law that makes an 1st. done, law, when and which was innocent passing of the Every criminal; action. 2d. law punishes and such crime, it than it aggravates greater or makes that Every changes was, 3d. law that the when committed. punishment, greater inflicts a than punishment, crime, law to the when committed. the annexed evidence, Every legal law that alters the rules 4th. less, different, testimony, than the law receives or offence, at the time of the commission of required in order convict offender. J.) Dall.) (3 (opinion

Calder, Chase, 3 U.S. at 390 omitted). (emphasis language Characterizing from Justice comprehensive opinion explana- Calder as a

Chase's Supreme laws, tion Court Collins of ex century emphasized formulation of the twentieth (1925): Ohio, from v. definition Beazell U.S. settled, by decisions this Court so well known It is may with, any dispensed their citation be previously punishes which as a crime an act statute done; committed, was innocent when which which crime, punishment for a makes more burdensome commission, deprives charged its or which one after according law at any defense available with crime of committed, prohibited as time when the act was facto. (quoting Beazell, 269 U.S. at Collins, U.S. at 42 497 169-70). Supreme Collins,

¶ After the Court decided 111. jurispru- post facto this court reviewed Wisconsin's Thiel, 2d 524 N.W.2d in v. 188 Wis. dence State (1994). acknowledged that case, this court 641 In that proper definition of an ex underscored that the "Collins originally post is the definition stated facto law Thiel, in Beazell." 188 and later summarized Colder Wis. 2d at 702. my colleagues

¶ at have written 112. Two of eligible length regarding Singh's he offense, which first retroactivity during and for window committed They during the PAT window. he was sentenced which subsequent determining argue a whether that, when legislature unconstitutiоnal, ex is act of analysis solely law as it was at the look to the should offense. Chief Justice the commission of the time of ("Because August Roggensack's ¶ dissent, 217 repeal it law to be as was PAT caused the 2011 Singh crimes, of his the first in 2008 when committed impose punishment legislation did the 2011 greater the time committed than it was at was Bradley's crimes."); Justice Rebecca G. of his the first ("The increase does not 2011 law dissent, crime to the 2008 because attached sentence change punishment at that existed to the it makes no crime.").5 committed the the time person commit of the date on which The exclusive use concerning implication: carries with it eligible an offense ted the by PAT earned entirely eliminated have legislature could persuaded I am not that ex analysis always comparison limited to mere of the say law as it existed at two discrete times. To that the legislation repealing PAT is not an unconstitu- punishment tional ex facto law because the punishment 2011 is the same as the in 2008 fails to objective acknowledge the evolution of the law in the period. interim repealed by In Wisconsin, "No law a sub-

sequent legislature act of the is revived or affected 990.03(1) repeal repealing of such act." Wis. Stat. (2013-14); City Oshkosh, see also Goodno v. 31 Wis. (1872) ("The original indepen- 127, 130 section, anas statutory dent and distinct enactment, ceased to have during certain inmates the PAT window. As Justice Rebecca Bradley argument, sets forth the crime, opportunity

At the time committed the 2008 the PAT exist; therefore, repeal did not 2011 Wis. Act 38's of it does not implicate any post regarding ex facto concerns the 2008 crime. The 2011 law does not increase sentence attached to the change punishment 2008 crime because it makes no to the that existed at the time committed the 2008 crime. (footnote omitted). Bradley's dissent, Justice Rebecca G. 234 person Consider a who committed and was sentenced for an eligible 1, 2009, offense before October served the confine- portion ment prison of a during sentence the entire PAT window, and continued that August 3, confinement after 2011. post If ex analysis facto is limited to a strict focus on the date offense, of commission of the legislature then the could have eliminated all by PAT earned person during the PAT window without implicating post ex facto concerns because eliminating the earned PAT would change "make[] no to the punishment that existed" when the crime was committed 1, before October 2009. analysis, Under such an the 2011 repeal of PATwould seem to survive scrutiny constitutional for post purposes ex fact even preservation without the reasonable (2013-14). of earned PAT set forth in Wis. Stat. 973.198 amendatory very any the act the moment existence original passed into effect.... and went was effectually separate statute, was re- as section, as pealed if the book, from the statute as and obliterated by express repeal had been made direct and .")(cid:127) . . words . legislation repealing PAT did not The 2011 115. statutory punishment it for as the scheme

"reinstate" in 2011 the Rather, 2009. existed before October punishment legislature the scheme for amended the appro- many legislative An post time as sessions. second analysis priate requires facto review the ex change consequences in the law in followed of the changes by in 2011. оf the the law review further punishment eligible Comparing in 2011 the crimes punishment not in 2008 is for the same crimes to the retroactively altered where 2009 Act sufficient Wis. it law as existed in the Clearly, PAT in retroactive creation of "Although the Latin

2009 was unconstitutional. any post literally encompasses phrase law 'ex facto' long recognized passed . . . it has been fact,1 'after prohibition laws on ex the constitutional facto disadvantage only penal applies which statutes Collins, 41; at see them." 497 U.S. affected offender ("It (1977) Florida, U.S. v. also Dobbert it must be that for a law be axiomatic law."). Consequently, prior than onerous more prohibitions on ex did Act 28 not violate Wis. reducing by retroactively confinement laws imposed during period the retroac- of some sentences tivity window. legislation Resolving the 2011 whether

repealing ex an unconstitutional PAT constituted requires review. a more careful law, however, proceeding analysis Before to an of whether eliminat- ing opportunity to earn PAT after it had been granted actually punishment eligible makes the for necessary offenses more burdensome, it is to deter- may mine who claim an ex facto violation in this case. already, supra 118. As stated see Part IV, the

repeal persons of PAT had an identical effect on sen during retroactivity persons tenced window and during by depriving sentenced the PAT window both groups opportunity August of the to earn PAT after legislature statutory 2011. In effect, the created a mitigating any entitlement to PAT confinement for person eligible during sentenced for an offense retroactivity window or the PATwindow. See Garner v. (2000) (Scalia, Jones, 529 concurring) U.S. J., ("A statutory parole system prisoner's that reduces a good sentence fixed amounts of time for behavior during realistically incarceration can be viewed anas prescribed penalty— entitlement —a reduction of the discretionary grant rather leniency."). than a legislature 119. Because the in 2009 created that entitlement to a sentence with confinement miti- gated by persons during PAT for sentenced either the retroactivity window or the PAT window, the 2011 legislation opportunity withdrew a continued to earn groups. change PATfrom both A in the law that "makes punishment more onerous the for crimes committed before prohibition its enactment. . . runs afoul of against laws." Graham, Weaverv. 450 U.S. (1981). Eliminating 24, 35-36 access to PAT after August persons during 2011, sentenced retroactivity window and the PATwindow risked mak- ing punishment they more burdensome: where previously opportunity mitigate had an their term of guaranteed legislation that

confinement, the 2011 required many inmates be to serve of those would they period longer have had confinement than would changed. the law not been Though people during the ret- sentenced necessarily roactivity and PAT did not window window they eligible contemplate PAT at the time committed mitigate— legislature fit saw crimes, the retroactively prospectively of their sentences or —all post analysis say ex it created PAT.To facto when changed only inappropriate after law is because the plain deny people that the is to the fact were sentenced making legislative the more severe action risked already prison.6 persons term of confinement Accordingly, appropriate persons sen- it to cоnsider during retroactivity the PAT the window and tenced eligible persons alongside of- who committed window deciding during PAT when whether the window fenses post repeal an ex of PATwas unconstitutional law. argues opinion lead Roggensack Chief Justice changes facto law when it "employs post definition of ex new include a is measured to

the act from which ex facto effect repealed subsequent change in a law that was temporary dis sentencing." Roggensack's Justice Chief conviction Supreme sent, United States "[n]o contends that She opinion's the lead definition of opinion supports Court Id,., 215. But law, any opinion this court." nor from does sentencing also changes law after noting that in the it bears Post Clauses The Ex Facto after crime. occur commission more legislative action that "makes burdensome prohibit Thiel, crime, v. after its commission." State punishment for a (1994) v. (quoting Collins 2d 524 N.W.2d 641 188 Wis. (1990)). prohi- It undermines Youngblood, 497 U.S. may term of legislature increase the purpose if the bition's begun. confinement has prisoners after their confinement for ¶ 121. Under the Beazell formulation of the defi nition Supreme of ex facto laws—embraced adopted by Court in Collins and this court in Thiel— repeal allegedly of PAT in 2011 "makes more punishment burdensome the for a crime, after its (quoting Thiel, commission." 188 Wis. 2d at 700 Col 42). lins, change 497 U.S. at In cases where a in the alleged punishment law is to make the for a crime more burdensome after commission of the offense, "[t]he [a court's] inquiry touchstone of is whether a ' given change presents in law a "sufficient risk of increasing punishment the measure of attached to the Peugh covered crimes." v. States, United 133 S. Ct. (2013) (quoting 2072, 2082 Garner, 529 U.S. at quoted Dep't which had Cal. Morales, Corr. v. 514 of (1995)). "[M]ere speculation U.S. conjecture 499, 509 or change retrospectively that a in law will increase the punishment for a crime will not suffice to establish a violation of the Ex Post Clause," Facto but neither must "a law maximum increase the sentence for which eligible a defendant is in order to violate the Ex Post Facto Clause." Id. at 2081-82. repeal 122. Here, of PAT ensured that

many persons eligible convicted of offenses would actually longer serve a term of confinement than the mitigated they term available law when committed the offense or Admittedly, were sentenced for it. person prison eligible confined may for an offense engage precludes in behavior that accrual much, of or any, possibility PAT. But that in some cases does not change legislation the fact that the 2011 eliminated mitigating eligible persons PAT's eligible effect for all with part prison

sentences who served all or of their August sentence after 3, 2011. Supreme has un- Court identified as

constitutionally laws that "had facto various enhancing range purpose of and effect (first prison Morales, 514 at 507 terms." U.S. available citing Lindsey Washington, (1937); U.S. then v. citing citing 24; Weaver, and then Miller v. 450 U.S. 433-34). The discussed in Florida, 482 U.S. at cases that amended involved unconstitutional laws Morales sentencing guidelines to, that were "intended state " 'quantum punishment' did, increase the category Miller, at 482 U.S. at issue, in the crimes "gain-time accumulation" so as to 433-34; reduced spend "lengthen period [] . must that someone . . (overturning prison," Weaver, U.S. Florida at gain-time reducing days an statute number month); "ma[de] manda- inmate could earn each only tory sentence," the maximum what was before Peugh, Lindsey, S. at 400. 133 Ct. 301 U.S. at See also ("A range retrospective in the increase Guidelines 2084 applicable a creates sufficient risk of

to defendant higher an ex viola- to constitute sentence (1997) tion."); Lynce Mathis, U.S. 443 v. [the (explaining "post-Weacer cases, Court that in legislature's has] the action . . considered whether . examining pur- lengthened the without sentence original sentencing poses scheme," behind noting Miller, conclusion that in the Court's that punishment sentencing guidelines more bur- made the objective appraisal entirely of on an densome "rested length change impact the offender's on the of the presumptive of sentence"). objective involving in an increase 124. Cases length in which the in contrast to those stand

sentence discretionary permitting laws Court concluded did not have an unconstitutional decisions (declining Garner, effect. See at U.S. con- "change Georgia lengthened [an clude law inmate's] imprisonment" time actual where state parole board exercised its discretion to increase time parole period hearings); Morales, between 514 U.S. at (concluding permitting parole 505-07 that law board subsequent hearings parole years to schedule two annually hearing the future rather than after initial unconstitutionally change did not "the substantive securing any [the] formula for reductions . . . sen- tencing range"). repeal

¶ 125. The PAT 2011 Wis. Act 38 involving lengthening much hews closer to the cases prison involving discretionary than to terms those parole though contingent decisions. Even PAT is on during inmate conduct meaning the term of confinement— eligible that an inmate does not receive PAT right appropriate as a matter of without conduct—the legislation preventing had the effect of accrual of perfect August PAT for behavior after eligible persons a result, As were who eligible during retroactivity sentenced for offenses eligible persons window, who were sentenced eli- gible during eligible offenses window, the PAT persons eligible during who committed offenses imposed expected PAT window had their or sentences they expect transformed. Where could once a term of mitigated by confinement during as PAT earned the entirety they expect of confinement, could now a term (if mitigated by any) of confinement as PAT earned only during eligible person the PAT window. For an began August who confinement in close time 3, 2011, to change years such the in law could mean added to the expect spend prison, length of time he or she could assuming conforming to the standards neces- behavior sary to earn PAT. pro- legislature repealed

¶ PAT In 2011 the 127. persons spectively just committed offenses for who persons already August for after eligible but also they committed to earn PATbased on the dates eligible persons offenses. For or were sentenced retroactivity persons during window, sentenced persons during who window, the PAT sentenced during prohibi- window, the PAT committed offenses earning August 3, 2011, creates an tion on PAT after longer they that will serve obvious and "sufficient" risk they PAT not than would have had been sentences repealed. I hold that 2009 Wis. Act 38 Therefore, would the extent ex facto law to was an unconstitutional persons opportunity to earn that it denied those August during after 2011.7 PAT confinement VI opinion's agreе ¶ conclusion I with the lead procedure Stat. release Wis. that the amended by an 2011 Wis. Act 38 is unconsti- 973.198 created may lengthen it tutional ex facto law because earned PAT for inmates who have term of confinement days. op., many I Lead 68. write as as 90 emphasize separately the amendment clearly procedure in an for earned PAT results release facto violation. important It to observe necessarily requires procedure more amended release person PAT who has earned in confinement for a time I thus reach the By reasoning opinion, in this stated op., Lead 47-48. opinion. as the lead same conclusion previous procedure. procedure than did the cre required Department ated in 2009 the of Corrections to notify sentencing days court "within 90 of release supervision" modify to extended of an intent person early sentence and release a because of earned 302.113(2)(c)1. (2009-10). § PAT. Wis. Stat. Thus, a person complete process could the review before eligibility conceivably begin date of for release and supervision extended on that date. procedure

¶ 130. The revised created impossible Wis. Act 38 makes it for an inmate who has begin supervision earned PAT to extended on the date person eligible PAT makes that for release from procedure, "[w]hen confinement. Under the new an positive adjustment inmate. . . who has earned portion time . . . has served the confinement of his or positive adjustment her sentence less , time ... he or may petition sentencing adjust she court to 973.198(1) (2013-14). § sentence." Wis. Stat. The sen- tencing hearing petition court must hold a on the days receiving sentencing within 60 it, and the court "may prison by then reduce confinement the term of remaining the amount of time in the term of confine- prison portion up ment in sentence, less to 30 973.198(3)-(5). days." Wis. Stat. change In effect, the result of this is to by many days

reduce as as 90 the amount of PAT an inmate has An earned. inmate under the new system may petition for release until the date that system permitted the old would have release. As re- procedure essentially vised, the release eliminates at many days least and as as 90 of earned PAT. Characterizing change this to the release process "procedural" as rather than "substantive" does purposes. Although not save it for constitutional Florida, Supreme in Dobbert v. Court stated (1977), though may "[e]ven to the it work that U.S. change procedural disadvantage is defendant, a of a explain that the on to facto," the Court went not "[t]he "procedural" because was at in the case law issue employed simply in methods altered the statute new penalty determining was to be the death whether change quantum imposed; in the was no there Dobbert, 432 U.S. punishment to the crime." attached prerogative legislature to alter has the at 293-94. exercising procedure PAT, we must earned but for any changes have a substantive whether evaluate punishment. length impact on already that an ex ¶ been established 133. It has retroactively when a law violation occurs spend person must time that the amount of extends gain-time "By prison. in definition,. . . reduction in period lengthens . . . that someone accumulation prison." spend Weaver, at 33. Because 450 U.S. must anywhere procedurе from 1 eliminates release the new undoubtedly procedure days PAT, the of earned to 90 lengthens therefore also of confinement the term effect. an unconstitutional has

VII Singh and review ¶ conclude, I return 134. To far. consequences thus the law discussed for him of Singh not is ¶ I that outset, conclude At the 135. on eligible committed the offense PAT on to earn committed August offense was 10, 2011. Because Singh August repeal has no 3, 2011, of PAT on after assert) (and eligible that he is does to claim basis PAT this offense. for on eligible Singh is Next, I conclude 136. July Be- 2011. on committed

PAT on the offense during cause he committed that offense the PAT win- denying unconstitutionally dow, him PAT would lengthen eligible the term of his confinement. He is during any prison earn PAT time confined under including any sentence for that time confined offense— August after 3, 2011. Finally, eligible I conclude that County for PAT on the 2008 Waukesha offense. Be- during deny- cause he was sentenced window, the PAT ing unconstitutionally lengthen him PAT would eligible term of his confinement. He is to earn PAT during any prison time confined in under that sentence —including any August time confined after clear, 138. Tobe has not asked this court precisely any, determine how much PAT,if he earned while confined under these sentences. As ex- plains response Kemper's in his brief in to Warden cross-petition, "It would be trivial for this Court to specific positive-adjustment-time assess the calcula- particu- tions to which Mr. was entitled. That is larly given Singh's so Mr. circumstances —his other having sentence, and his current status of been re- prison." given complex leased from Indeed, factual relating Singh's circumstances to these sentences and during time in periods and out of confinement the time possibility any issue, at there is a distinct PAT he earned would not have resulted in his earlier release. foregoing respectfully For the reasons, I agree many concur. I with of the conclusions and much reasoning opinion. of the in the lead I would affirm the appeals regarding decision of the court of eligibility for PAT and reverse the decision of the court appeals regarding procedure securing release pursuant to earned PAT.

¶ 140. ZIEGLER, ANNETTE KINGSLAND J. (concurring part, dissenting part). agree only in I opinion's part with the lead conclusion to affirm in and part appeals. opinion reverse in the court of Bradley joined only by Justice Ann Walsh Justice Shirley S. Abrahamson. Justice David T. Prosser con- join Bradley's curs, but does not Justice Ann Walsh opinion.1 engages thorough, While Justice Prosser in a persuasive analysis concerning reasonable, post challenge, facto the facts of this case unique regardless post are so of the ex analysis, the conclusion is the same. As will be dis- writing, peculiar cussed in this facts of this case leave with no habeas relief. adage

¶ 141. As the old warns, "bad facts make prime example bad law." This case is a facts, ofbad by undertaking I unnecessary am concerned that an scope review of the of the ex facto clause we risk creating Fortunately, bad law. we do not need to do so explain interpreta- here. I write to that under either proper scope tion of the of the ex facto clause proffered by the other members of the court, the result simply, this unusual case remains the same. Put corpus. is due no relief on his writ of habeas requires Judicial restraint that we resolve cases on the possible grounds. e.g., narrowest See, DWD, DOJ v. 29, WI 365 Wis. 2d 694, 875 N.W.2d 545 ("[W]e generally obliged are to decide our cases on the possible grounds'" (quoting 'narrowest State v. Subdiaz-Osorio, 2014 WI 143, 357 Wis. 2d (Ziegler, concurring).)). Accordingly, N.W.2d 748 J., precise scope decision on the of the ex Roggensack Chief Justice and Justice Bradley Rebecca G. have separate authored dissenting but opinions. unnecessary to no because is entitled clause is Consequently, corpus remand is also relief. habeas inappropriate in this case.

I. BACKGROUND array of be- committed an offenses period during 2011, a of time which tween 2008 and changes sentencing legislative statutes series of to example, 30, 2009, June For as of was enacted. early oppor- legislature put into effect several release cer- who sentences for tunities for offenders received eligible 1, 1999. See 2009 after December tain offenses provided program here Wis. Act 28.2 The at issue serving prison misdemeanors or sentences for inmates one F I felonies could earn nonviolent Class to Class (PAT) every day Adjustment for two any Time" "Positive days not "that he or does violate served she (2009-10), provided which Stat. 302.113 Creating Wis. part: relevant (1) serving subject to if he or she is An inmate is this section imposed An inmate con- under s. 973.01. a bifurcated sentence felony I is or of a F to Class

victed of a misdemeanor Class offense,. positive adjust- eligible . . and not a violent who (2)(b). may . released extended ment sub. . be time under (2)(b) (9h). supervision or . . . under sub.

(2) ... (b) for a misdemeanor sentenced under s. 973.01 An inmate offense, felony a violent as I that is not or Class F to Class 301.048(2)(bm)l., day may positive earn one defined in s. every days adjustment he or not served that she does time for neglect prison any regulation not refuse or of the or does violate assigned inmate convicted of a perform required An or duties. felony that is a violent a Class F to Class I misdemeanor or offense,.. supervision he or when be released extended . shall portion prison his or has the term of confinement she served sentence,.. adjustment positive time he or . her less bifurcated has she earned. regulation prison neglect of the does not or refuse or to perform required assigned or Wis. duties." Stat. 302.113(2)(b) (2009-10).3 § PAT did not decrease the length sentence, total of the but rather allowed in- mates to convert of one-third their confinement time supervision into extended time.4 Wis. Stat. ("If 302.113(3)(e) § an inmate is released to extended (2)(b) supervision under sub. after he or has she served prison less than his or her in entire confinement portion imposed of the 973.01, sentence under s. supervision term of extended is increased so that the length total of the bifurcated sentence does not 302.113(2)(a) ("[A]n change."); subject § inmate to this supervision section is entitled to to release extended after he she or has served the term of confinement in prison portion [as of the sentence modified appropriate entity reviewing statutes]" under the PAT added).). (emphasis eligibility An inmate's for PAT was not

discretionary part Department on the of the of Correc- ("DOC"), dependent tions but instead was on the classification the inmate's offense. See Wis. Stat. ("An 302.113(2)(b) § inmate sentenced under s. 973.01 felony for a misdemeanor or for F a Class to I Class may day a offense, is not violent . . . earn one positive adjustment every days time for served that subsequent All references to the Wisconsin Statutes will be to the 2009-10 version of the Wisconsin Statutes unless otherwise indicated. instance, For if an inmate received a bifurcated sentence consisting years three years confinement and three extended supervision, PAT would allow the sentence to be modified to years two years confinement supervision. and four extended The inmate would be released to extended supervision after serving years prison. two confinement prison any regulation of the or she does not violate he perform required neglect or or to or does refuse duties.") required assigned the DOC to The statutes subject keep to the conduct of each inmate record of 302.113(3)(a). Qualifying § § inmates 302.113. See early supervision release extended were entitled they portion of served the confinement their when had 302.113(2)(b) ("An less PAT earned. See sentences F to of a misdemeanor or a Class inmate convicted felony offense, I . . . shall be that is not violent Class supervision has when he or she released extended portion prison of his the term of confinement served adjust- positive sentence,. her . . less or bifurcated earned."). he she has When an inmate ment time or days supervision to extended within 90 of release was upon earned, PAT the DOC notified the sentenc- based ing modify it the inmate's court that intended 302.113(2)(c)l. sentencing § could, court sentence. hearing. required to, a review Id. was not hold but ("[T]he notify sentencing [DOC] . . and shall court. may hearing.") If sentenc- hold review the court ing hearing, pro- did not schedule a the DOC court ("If Id. the court does not schedule ceeded with release. days hearing after notification review within 30 may proceed [DOC] under subsection, under this par. (b).") prior the PAT 2008, to the enactment of In Singh forged prescriptions for narcotics and

statutes, County violating charged with Wis. in Waukesha was by 961.43(a), Controlled Substance Obtain Stat. felony. Singh was convicted Fraud, a class H County offense for the Waukesha sentenced years three in effect. He received PAT was while jail probation time and conditional with six months of imposed-and-stayed prison con- bifurcated sentence an sisting of 18 months confinement and 18 months supervision, upon extended served be revocation. qualifying Because was he sentenced for a offense after sentencing December at the time of at PAT arguably applied prison portion least to the bifurcated of this sentence.5 probation

¶ 145. While on for the 2008 Wauke- Singh offense, sha committed two offenses Milwau- County. July kee The first 25, 2011, was committed on while PAT was in effect. The PAT statutes re- were pealed August 3, 2011. committed his second County August Milwaukee on 10, 2011, offense seven days repeal. Singh pled guilty after PAT's to one count by July of Obtain Controlled Substance Fraud6 for the offense, and to one count of Obtain Controlled August Substance Fraud for the 10 offense. Singh's probation 13, 2011, 146. On December stayed for the Waukesha offense was revoked and his imprisonment (consisting sentence of of 18 months plus supervision) confinement months extended imposed. jail was He was returned to to await sentenc- ing County on the Milwaukee offenses. 147. On 29, 2011, December was sen- County

tenced Milwaukee offenses. For the 5 Singh any did not time, earn PAT on this sentence at this however, placed because was probation he on and his bifur prison cated imposed stayed. Thus, sentence was and until his probation revoked, Singh was was "serving a bifurcated imposed sentence required by under s. 973.01" as Wis. Stat. 302.113(1). 302.113. § See Wis. Stat. § 6 Singh pled also guilty to one count Obtain Prescription Drug with Fraud in this case. This is an unclassified misde 450.11(7)(a) (2011-12). meanor. See Wis. Stat. count, For this he was sentenced to six in a correction, months house of run to concurrently with all sentences. Because this sentence irrelevant the hand, to issue at I will it not discuss further.

186 July 24 offense, was sentenced to 2011 Milwaukee he and 36 months extended months initial confinement consecutively supervision, to the Wauke- to be served August offense, the 2011 Milwaukee sha sentence.7 For and 24 initial confinement he was sentenced to months concurrently supervision, to run extended 36 months August words, 2011 In other the to all other sentences. concurrent to both Milwaukee sentence was (18 18 and sentence months confinement Waukesha July supervision) 2011 as well as the months extended (24 36 confinement and Milwaukee sentence months day supervision). first months extended prison January 4, was 2012.8 adjust- petition positive for filed a case with the Racine ment time on the Waukesha to When the DOC refused Correctional Institution.9 process request, Singh petition filed for a writ of his corpus County on in the circuit court habeas Racine alleging also PAT on he was due June July DOC filed 2011 sentence.10 The Milwaukee quash writ, circuit court which the motion to 7 they imposed, com When consecutive sentences are are 302.113(4). A puted Wis. Stat. § as one continuous sentence. any serving person all of confinement before serves terms supervision. Id. terms of extended 8 time days jail the conditional He of credit for received 159 days sentence, well as 234 on Waukesha as served jail awaiting days spent in time credit for he confinement This hearings awaiting prison. to the amounted transfer credit toward Waukesha of months confinement a total sentences, in fact received. July Milwaukee which he motions with various entities Singh has filed numerous necessary only I discuss those convictions. will related his disposition of this case. petition prison, filed a his arrival After It is sentence. positive adjustment time on the Waukesha petition was exactly what date this unclear from the record granted. appeals part court reversed in finding part, affirmed in that the ex facto clause required Singh the DOC to allow to earn PAT credit July his for toward sentences both his Waukesha and appeal 2011 Milwaukee offenses. This followed. appeal pending ¶ 149. While the was before this supervision.11 court, was released to extended July County On 14, 2015, the Waukesha circuit court Singh's year jail modified sentence to one in with credit supervision for time served and vacated the extended portion of the sentence.12 Consequently,

¶ 150. find we the case before us following posture: Singh's in the sentence in the year jail Waukesha case now one in and has been served. The initial Waukesha bifurcated sentence of imprisonment months confinement and 18 —18 supervision longer months extended exists. As for —no the two sentences, Milwaukee concurrent has currently served 29 months of confinement and is on supervision July extended for both the 2011 and Au- May 2,2012, filed. On the DOC sent letter to the circuit court explaining it verify Singh's refused to eligibility for PAT. petition June 2013 for a corpus writ of habeas was upon basеd process the DOC's refusal eligibility PAT his petition upon prison. his arrival Singh's jail Because credit amounted 13.1 months and sentence, he received PAT no on either his release-to-extended- supervision date the consecutive 18-month Waukesha July 24-month 2, 2011 Milwaukee confinement terms was June (18 months, plus months, months minus 13 for a 2014). total January of months from 2012: June 12The amendment to the Waukesha sentence was argument. revealed to this court until oral The details of County amended sentence Waukesha Case No. (the 2008CF1368 are on available CCAP Consolidated Court Program management system). Automation https case Available at .gov/index.xsl. ://wcca/wicourts According gust infor- offenses. to the 2011 Milwaukee large, representing the world at the DOC is to mation discharge 28, date is now November maximum 2016.13 proceed this Nonetheless, I to discuss case when filed of the sentences that existed terms corpus time and at a when the

his of habeas writ modified so as to sentence had not been Waukesha then of PAT credit. I will discuss moot its consideration is unavailable to that habeas relief fact they considering now the facts as exist.

II. DISCUSSION Ex Facto Clauses A. The Post post general proposition, the ex facto 152. As requires indi- fairness and that fundamental clause consequences of their have fair notice of the viduals and the States Constitution crimes. Both the United post clauses.14 have ex facto Wisconsin Constitution Supreme precedent Court We follow United States prohibition interprets federal constitution's interpreting the Wisconsin facto laws when ex Thiel, 188 clause. State v. Constitution's (1994). 695, 2d 524 N.W.2d Wis. Supreme Court the United States purpose clause of the ex

has that the stated warning legislative give fair Acts is to ensure "that rely permit on their individuals and their effect changed." explicitly meaning Graham, v. Weaver until using Locator the DOC's Offender This date was obtained search, http://offender.doc.state.wi.us/lop/home.do available at Const, I, 10; art. I, 9 and Wis. U.S. Const. art. §§ See §12. (1981). protect

450 U.S. 28-29 It is also meant to by making government fundamental fairness by establishes," "abide the rules of it law Carmell v. (2000), gov- Texas, 529 U.S. "restrict arbitrary power restraining poten- ernmental tially legislation." Weaver, vindictive 450 U.S. at 29. Though Supreme

¶ 154. has Court "declined single identifying articulate 'formula' for those legislative changes that have a sufficient effect on punishments substantive crimes or to fall within the prohibition," Dep't constitutional v. California of Corr. (1995), Morales, 514 U.S. 499, 509 the formulation knowledge original "faithful our best of the under standing of the Ex Post Facto Clause" is that stated in (1925): Ohio, Beazell v. 269 U.S. 169-70 settled, by It is decisions of this Court so well known that may dispensed with, their citation be any that punishes statute which previously as crime an act committed, done; which was innocent when which makes punishment more burdensome the crime, for a commission, after its or which deprives charged one any with crime of according defense available to law at the committed, time when the act was prohibited as post facto. (1990). Youngblood, Collins v. 497 U.S. 37, 42-43 Following Supreme the lead of the Court the United adopted States, this court in Thiel verbatim the Bea- post zell formulation of ex Thiel, facto laws. Wis. 2d at 703. Consequently, post the ex facto clause

prohibits only those laws that fall into one of the categories. legislature Beazell The fact that the changes sentencing automatically statute does not pursuant entitle a post defendant to relief to the ex post provides facto Rather, clause. the ex facto clause retroactively may "[¡legislatures alter the that not punishment the for of crimes or increase definition Collins, at 43. 497 U.S. criminal acts." repeal question the It is the of whether punishment" for PAT "increased the has this court. Some Waukesha crime that divided this conclude that the ex members of court legislature making pun- prohibits from clause it an more than was at ishment for offense burdensome sentencing commission, conviction, or the time of They that because was an offense. conclude that included in 2010 to bifurcated sentences sentenced repeal opportunity PAT PAT, retroac- to earn tively punishment Singh received for increases the thus an ex facto law. Other that offense and is that the ex of this court contend members only punishment requires for an of- clause on than it was fense not be made more burdensome They day committed. conclude the offense was PAT not the law 2008 when because was repeal crime, his Waukesha retroactive committed Singh's punishment for that of PAT does increase offense. explain either I that under ar- 157. write to scope post proper of the ex facto

ticulation of the Singh spent five more months in case, in this clause, due PAT's retro- he should have to confinement than repeal. below, demonstrated Thus, as will be active inquiry regardless com- of whether (1) pares at the time of law the law in effect a new to (2) sentencing, to conviction, or or commission, only of the the commission on the date of law in effect repeal PAT increased offense, retroactive 191 punishment already for an offense in do- committed ing so violated the ex clause.15

1. PAT for both the 2008 Waukesha and

July 2011 Milwaukee Sentences requires If the ex facto clause original PAT both earn on Waukesha bifurcated prison July prison sentence and the 2011 Milwaukee sentence, should have been released to extended supervision January 4, on 2014.16 He was released explain why from five confinement months later. I will this is so. Singh's original

¶ 159. sentence for the Wauke- sha offense consisted of 18 months confinement and 18 supervision. grant months extended A full of PAT on (one-third months) months, sentence 18of so 6 - (18 12)= change would to 12 sentence months (18 supervision confinement and months extended + 24). = against The 6 months of PAT credit confine- prolongs supervision by ment the extended that same change length amount so not the overall of the 302.113(3)(e). sentence. See Wis. Stat. recognize While I that the Waukesha sentence would no

longer qualify jail sentence, for PAT because it is a analyze I these they sentences terms of how existed at the he time request filed his for PAT. 16I recognize that procedures DOC uses certain calculating release dates and that consequently, an inmate's always actual release does date not correspond exactly to the upon person date which the average would consider that a See, passed "month" has on e.g., the calendar. Wis. Stat. 302.113(8) ("Releases § shall supervision extended prison from Tuesday on Wednesday be or preceding the date on completes which he or she the term imprisonment."). Though been released discrepancies small day Singh in the exact have would given may exist, they in the scenarios here do impact my analysis. July 160. The consecutive 2011 Milwaukee sentence consisted of 24 months confinement and 36 supervision. grant months extended A full of PAT on (one-third months) that sentence 24 months, so 8 change would that sentence to 16 months confinement - (24 16)= (36 supervision and 44 months extended 44). =+ 8 Singh approxi- was otherwise also due (393

mately days) jail 13 months credit to the portion confinement of his sentence for time otherwise spent custody July in for the Waukesha and Milwaukee offenses. This would further affect the require essentially sentences so to then 15 total months of confinement because the Waukesha sen- tence of 12 months is less than the 13 months credit remaining July due, and the sentence of 16 months remaining would receive the one month of credit in give spent order to him full credit for the time custody.17As was above, demonstrated he would still supervision, part have 44 months extended but that begin only the sentence would after all confinement was served. assuming So, he was due PAT for the July

Waukesha and 2011 Milwaukee sentences, (the should have served 15 months confinement usurped by plus Waukesha sentence the credit due - (16 15) = July months for the 2011 Milwaukee sentence). Singh's day prison first on this sentence January was 4, 2012. If was entitled ato ‍​​‌​‌‌​​‌‌‌​​‌​​‌​‌‌‌​‌‌​​​‌​​​​‌‌‌​‌‌​‌​​​​‌‌​​‍full grant of PAT on sentences, both the confinement term 17 When two imposed, jail consecutive sentences are credit custody that is connected to both sentences reduces the term of confinement of the "first" sentence to be served. See Boettcher, (1988). 86, 100, State v. 144 Wis. 2d 423 N.W.2d 533 4, March 2013—15 ended should have this sentence January 4, 2012. from months Singh re- have been ¶ would not However, 163. serving Singh was also 2013, 4, March because leased August of 24 sentence 2011 Milwaukee the concurrent supervi- 36 months extended and months confinement (concurrent above Wauke- to both the time sion at this sentence). July It is Milwaukee sha sentence August undisputed of- 2011 Milwaukee that for the jail Singh under PAT nor credit due neither fense, was August also 2011 Milwaukee sentence The the statute. January began it was concurrent 4, 2012, because on (including sentence the Waukesha all other sentences 2012). January began The 4, on came first and which August 2011 Milwaukee on this term confinement January 2014—24 4, ended have thus sentence would January result, while this 4, 2012. As months from keeping the reason for would be concurrent sentence Singh January it 4, 2014, could in until confinement keeping Singh in confinement the reason for not be 2, until June 2014. months, was, as he another five Consequently, if the ex facto clause 164. commission, conviction, the time of to the law at looks (as my colleagues sentencing would con- or some clude), PAT on both the Waukesha was due July he sentence, 2011 Milwaukee sentence and supervision on to extended have been released should January 2014. Because the DOC not June request process and no court PAT refused to hearing a full 29 months held, was he thus served - 29). (18 = He was released June 13 + confinement day began his months from the sentences 2, 2014—29 January 4, 2012. on only way to conclude spent would be 29 months confinement

should have to surmise that he was due PAT no credit on either Only my colleagues sentence. one of would so decide Indeed, is the case. it is difficult to conclude that July he would not be due PAT on at least the given Milwaukee sentence the fact that PAT was the place law on the date of commission of that offense.18 However, as I have otherwise discussed in inquiry compares section, this if the ex a new law to the law in effect at the time of commission, sentencing repeal conviction, or for an offense, PAT's unconstitutionally punishment increased the for Singh's July Waukesha and 2011 Milwaukee offenses and caused him to serve an extra five months confine- ment. He was released June 2014, and PAT com- August bined with the concurrent 2011 Milwaukee sentence would have allowed him to be released five January months earlier on 2014, even with consid- August eration of the concurrent 2011 Milwaukee case. Only July 2. PAT For 2011 Milwaukee Sentence my ¶ colleagues 167. It seems that all but one of agree Singh July could is at least due PAT for the 2011 Milwaukee sentence which ran consecutive to the earlier Waukesha sentence. Even under this narrower interpretation comparing of the ex facto clause— only new law to the law that existed on the date of 25, 2011, The law in July effect on Singh when commit offense, required ted the Singh to serve 16 months confinement prison in on the sentence he received offense. The law 3, 2011, in effect after PAT's repeal August required on Singh to serve months prison confinement in on the sentence he received for the same offense. punish This is an increase in July ment for the 2011 Milwaukee offense that took effect 25,2011. July any Thiel, after reading Under of Beazell and prohibits clause this. repeal still caused

commission offense—PAT's of the prison. Singh spend months five an additional according the ex view of the narrowest Even being put court, inquiry of this members forth July 2011 PAT on the earned have should even how I now demonstrate will Milwaukee sentence. repeal interpretation, un- PAT's this narrower under required constitutionally five extra to serve prison. months confinement original for the Wauke- sentence and 18 months confinement of 18 offense consisted sha supervision. due on If no PAT was extended months as-is. sentence, it remains this July con- Milwaukee sentence months ex- and 36 24 months confinement sisted supervision to the Wauke- and was consecutive tended grant alone that sentence of PAT on A full sha case. (one-third months) change would months, so 8 of 24 - 16) (24 =8 months confinement that sentence to 16 (36 44)= supervision. + 8 extended 44 months Singh was also discussed, has been 170. As jail approximately credit on 13 months otherwise due portion After all his sentence. the confinement begin his 44 served, he would then is confinement (the supervision Au- concurrent extended months of supervision gust months extended of 36 2011 sentence months). 44 within this would conclude July only Singh PAT for So, if was due 171. Singh have served sentence, should Milwaukee 2011 (18 the Waukesha months for 21 months confinement due, credit months for sentence sentence, minus 13 sentence) July plus 2011 Milwaukee months for the 16 - 21). (18 = day prison on the first + 16 13 January Singh If 4, 2012. sentences was consecutive only July Milwaukee 2011 entitled to PAT on was sentence, the confinement term of his consecutive sentences should have ended 4, October 2013—21 January explain 4, from Below, months 2012. I will why did it not. Singh serving

¶ 172. Recall, was also the concur- August rent 2011 Milwaukee sentence of 24 months supervision confinement and 36 months extended at Singh jail this time. due was no PAT or credit for the August August 2011 Milwaukee offense. The began January Milwaukee sentence also 4, on 2012. August The confinement term on this 2011 Milwaukee (24 agree sentence concurrent, months which all for no due) kept Singh PAT is would have nonetheless incar- January until 4, cerated 2014—24 months from Janu- ary 4, 2012. Consequently, 173. even if the ex only

clause looks law date to the on the of commission Singh only July of the offense and PAT was due on the sentence, 2011 Milwaukee still should have been supervision January released extended 4, on completely date, On that he would have served his on all terms of confinement three sentences. Because process Singh's request, the DOC refused PAT he (18 full 29 served a months confinement months for the sentence, Waukesha minus 13 months for sentence July plus credit, for months Milwaukee confinement). equals sentence, 29 months 174. He released was June 2014—29 months day began January from the his sentences on Only my colleagues that he one asserts could never any sentences, be due PAT for release thus (29 confinement) according on June 2014 months appropriate her, is the term of confinement. The other conclude, however, six members this court could July at least due PAT Milwaukee case, all one facts of this but Thus, under the sentence. Singh agree justice been should have should January required 2014, as is no there to released be required him to be confined that would have sentence longer. apparent though it Even seems 175. regard- earlier, released five months

should have been analysis post facto is as clause less of whether it is in section II.A.1., or as stated stated in section II.A.2, analysis, that under either the bottom line is unconstitutionally pun- repeal increased PAT's prison. by Under five months confinement ishment particular case, however finds facts of this unique being position entitled to no himself in the corpus. petition I for habeas As will relief under his may explain below, if relief have been even habeas past, appropriate now in the the writ is not available Singh. Corpus

B. Habeas corpus proceeding Habeas is civil with availability origins law, is in the common and its guaranteed con- Wisconsin and United States McReynolds, State ex rel. Haas v. 2002 WI stitutions.19 133, an 11, 252 Wis. 2d N.W.2d It is remedy prisoner equitable to a "when that is available process pressing relief where the there is a need for or judgment by petitioner held is Id. or (citation which a is void."

omitted). corpus "The writ of habeas judicial, subjecting procedural executive, device for or scrutiny. liberty judicial private Where restraints on things among it that a available, it is assures other prisoner may require jailer justify his the detention 2; I, 8, I, art. cl. art. cl. 2. U.S. Const. Wis. Const. § (1968). Peyton Rowe, under the 54, law." v. 391 U.S. 58 purpose protect of the writ "is to and vindicate the petitioner's right personal liberty by releasing the illegal petitioner Hager from rel. restraint." State ex v. (1999). Marten, 692, 226 2d 687, Wis. 594 791 N.W.2d extraordinary 177. "Because it is an writ, ha- corpus only peti- beas relief available where the (1) tioner demonstrates: a restraint of his or her (2) liberty, imposed contrary which restraint was to protections by body lacking juris- constitutional or (3) adequate remedy diction and no other available at App Pozo, law." State v. 2002 WI 258 Wis. 2d (citation omitted). Importantly, 796, 654 12 N.W.2d "a 'petitioner writ will not be issued where has an adequate remedy may otherwise that he or she exer- " (citation omitted). cise to obtain same relief.' Id. principles regard- 178. With these mind principle less of whether of fair notice allows either (1) inquiry compare the ex a new law to the law at the time of cоmmission, conviction, or (2) sentencing compare an offense, or a new law to only the law in effect at time of commission of the any offense, I conclude that is not entitled to petition corpus. relief in his for habeas Singh's petition In for a writ of habeas f corpus, serving he stated that he was a consecutive composed of sentence 18 months initial confinement supervision 18 and months extended for the Waukesha case, and 24 months initial confinement and 36 supervision July months extended for the 2011 Mil- denying waukee He PAT case.20 contended that prior inmates who had committed offenses to PAT's 20Singh's petition August made no mention of the Milwaukee concurrent sentence.

August repeal violation an ex was Supreme pursuant Court of decisions of the Graham, 450 U.S. in Weaver v. United States (1987). (1981), Florida, 482 U.S. 423 Miller v. alleged, eligible Consequently, PAT to earn he he was these sentences PAT on two and had earned sufficient continuing deten his release, him to thus so to entitle Burke, illegal. Goodchild v. See State ex rel. tion was (1965) (holding that 251, 133 N.W.2d 753 2dWis. that would error s claims of constitutional Goodchild' by could be reviewed invalidate his murder conviction though discharged corpus not he could be habeas even sentence). burglary custody due to a concurrent from though a next, even there was will be demonstrated As clause, is not violation of the way petition. by habeas entitled relief his Singh's has First, 180. Waukesha sentence jail. Contrary year to the to one been reduced since suggestion plain opinion 7, the the lead in footnote very language PAT is clear that of the statutes is only prison earned on a sentence —it cannot be earned 302.113(1) jail § Wis. Stat. on a sentence. See ("An (2009-10) subject or is to this if he inmate section imposed serving under s. a sentence she is bifurcated 973.01."). sentencing Stat. 973.01 Wisconsin prison was, for sentences.21 While it once statute Singh's prison longer sentence is no a Waukesha this entitled to no habeas relief on sentence. He is PAT he could not entitled to sentence because be person imprisonment court "[WJhenever a sentences felony or prisons in the state for a committed on Wisconsin 31, 1999, or on or after December a misdemeanor committed 1, 2003, impose February shall a bifurcated after court 973.01(1). this section." Stat. § sentence under Wis. relief for jail due habeas He cannot be sentence.22 qualify. something being he does not for which denied Bodette, 2d 95 Wis. v. ex rel. See State Wohlfahrt 1980) ("[T]he (Ct. App. extent 132, 289 N.W.2d only by remedy of the equitable the effect is limited an omitted).) (citation violation" constitutional granted all of if were Second, even corpus, petition requested for habeas in his relief longer, shorter, term of extended have a he would supervision reflects Nonetheless, the record to serve.23 supervision terms have now been his extended that publicly-available by website months, aas reduced six now release date is maximum that reflects again, in a he finds himself Once 2016.24 November position earlier release with an worse, better, and not PAT and his confinement he received than had date supervision. extended converted to time was as an offender on current status Third, his legally-imposed supervision sta is indeed a extended relief. entitled to habeas he could not be tus such sentencing judge imposed It is the sentence custоdy legally—the the defendant.25 of authorizes — 2006). (2d Murray, Earley 71, 74 Cir. 451 F.3d v. See 22 sentence why the Waukesha clear as to The record is not position Singh in a amended, that is better it is clear but was in that any supervision longer has extended he no now because sentence, and prison on case, returned to he could not be given had he been than could have result better received a he petition. in his habeas requested relief the received 23 H.A.2., had he received 1. and II.A. from sections Recall have he would petition, habeas requested his the relief all of to serve. supervision 44 months extended at least 24 to date has been backdated Presumably, release his Waukesha sentence. change in the the reflect sentencing court considers course, the Assuming, of within a sentence imposes and factors appropriate Consequently, Singh's liberty current on restraint "imposed contrary protections" not is constitutional Singh required would as be to be entitled to a writ corpus. currently In words, of habeas other he is on supervision and extended should be. Fourth, if somehow further relief is due

Singh, because would law, he have other remedies at any by corpus.26 he is not due relief a writ of habeas adequate Habeas relief is not due to one has other who remedies at To the law. extent that further is relief adequate warranted, indeed has other remedies disposal. example, Singh petition at his For can application any may DOC for extra time he have spent any in confinement toward confinement he will supervision if serve his extended is revoked; he can seek sentence under credit Wis. Stat. 973.155; or he bring monetary damages, can a civil suit for if due. way Because so, this is relief does not come corpus. Haas, a writ of habeas 133, See Wis. 2d ("We long consistently ¶ 14 have held that extraordinary corpus writ of is habeas not available petitioner petitioner adequate when has other (citations omitted).). remedies available" agree only 184. For the above reasons, stated I opinion's part with the lead conclusion affirm in part appeals. opinion reverse in the court of Bradley joined only by Justice Ann Walsh Justice Shirley S. Abrahamson. Justice T. David Prosser con- join Bradley's curs, but does not Justice Ann Walsh statutorily See, range. e.g., Gallion, authorized State v. ¶WI 2dWis. 678 N.W.2d 197. 26 I am opining as to may whether have other pursue. civil remedies to engages opinion.27 in Prosser a thor- While Justice analysis concerning persuasive ough, reasonable, and challenge, post facto the facts of this case ex post regardless unique ex of the are so analysis, the same. As discussed the conclusion is peculiar writing, of leave the facts this case this no relief. with habeas adage

¶ make warns, the old "bad facts 185. As example prime and facts, is of bad law." This case bad unnecessary by undertaking an I am concerned scope ex clause we risk review the of the Fortunately, creating we not need to do so law. do bad interpretation explained, under either here. As proper proffered scope facto clause of the ex this unusual case court, the result in members of simply, Singh no on is due relief remains the same. Put requires corpus. Judicial restraint his of habeas writ possible the narrowest on that wе resolve cases grounds. e.g., ¶ DWD, 2d See, 365 Wis. DOJ v. ("[W]e generally obliged cases to decide our on are (quoting possible grounds'" Subdiaz- 'narrowest Osorio, (Ziegler, ¶ J., concur- 2d 357 Wis. scope Accordingly, precise ring).)). on the a decision unnecessary because facto clause is corpus Consequently no relief. entitled to habeas inappropriate in this case. remand is respectfully foregoing reasons, I For 186. part. part concur in dissent that Justice to state I am authorized joins opinion. this J. GABLEMAN MICHAEL ROGGENSACK, C.J. DRAKE PATIENCE Supreme (dissenting). Court and The United States Brad Rebecca G. Roggensack Justice Chief Justice dissenting opinions. separate but ley have authored post ex this court have concluded that the clauses facto of both Constitutions forbid enactment of laws that punishment impose punishable for an act that was not impose at the time the was act committed or that punishment greater that is than it was at the time the Peugh act States, _U.S. _, was committed. v. United (2013); Graham, Ct. 2072, 133 S. 2078 Weaver v. (1981); 24, Kurzawa, U.S. State v. 2dWis. (1994). opinion attempts 511, 509 N.W.2d 712 The lead expand the definition which we evaluate whether post a statute violates the ex facto of the clauses and federal state constitutions it because concludes changes when law after conviction or sentenc- ing, post an violation facto occurs.1 although Therefore, 189. I conclude that one of Singh's Aman three crimes under review herein has potential post for an ex facto violation under the post analysis, join correct ex facto I do not the lead opinion opinion's because I conclude the lead definition agree of ex law incorrect. I Furthermore, appeals' proce- with the court of conclusion that the change dural in the duties of circuit courts did not prohibitions.2 opin- contravene ex The lead expansion ion's of the definition an ex facto law Supreme precedent misstates United States Court precedent Accordingly, of this court. I would re- appeals' part; verse the court of decision affirm it in part; respectfully opinion I dissent from the lead herein. op., Lead ¶¶ 2 Because Bradley ably Justice Rebecca G. discusses and issue, join decides this I her opinion that regard rather than

writing myself. about this issue See Justice Rebecca G. Brad dissent, ley's ¶¶ 248-49.

I. BACKGROUND opinion and the concur- The lead Ziegler ably Annette set out of Justice rence/dissent on claim. foundation that bears the factual necessary repeat only I facts enable Therefore, those that follows. to understand the discussion the reader appeal arise from ¶ in this 191. The issues prescrip- prison Singh's in as a result confinement forgeries in Waukesha and Milwau- for narcotics tion statutory enactment, effective from a kee counties and repealed August 2011, 3, 1, 2009 and October provided opportunity to earn for a confined inmate an (PAT) applied adjustment positive that was time legis- period of confinement. reduce the inmate's permitted repeal credit PAT earned of PAT lative August 3, Wis. Stat. 1, 2009 and 2011. between October § 973.198.

A. Dates of Criminal Conduct Singh re- ¶ that we committed the crimes 192. He committed the on different dates. herein three view County, 16, 2008 in Waukesha offense October first the PAT date of 1, 2009 effective before the October (2009-10) § Wis. Stat. 302.113 and statutes, Wis. Stat. (2009-10). § 304.06 July offense committed his second 193. pos- County, was while PAT

25, 2011 Milwaukee August 10, his third offense on sible. He committed repealed County, PAT on after was in Milwaukee August 3, 2011. Singh's

B. Convictions guilty Singh pled 2010, 29, 194. On March County commit- to the crime Circuit Court Waukesha alleged ted October 2008. 16, Four other violations 961.43(l)(a) Wis. Stat. were but dismissed read-in. joint plea 9, 195. On at a 2011, November hearing, Singh pled guilty County to the Milwaukee July County 25, offense, and to the Milwaukee August joint sentencing hearing 10, 2011 offense. A was scheduled for December C. Sentences April County 29, 2010, On the Waukesha f prison Circuit Court sentenced to a bifurcated sentence of 18 months' confinement and 18 months' supervision extended for the 2008 crime. The court stayed imprisonment imposed years' proba- three jail tion privileges. on six conditioned months' time with Huber ¶ 197. On December Waukesha County Singh's probation Circuit Court revoked due to County stay Milwaukee offenses vacated theof initial of 18 sentence months' confinement and 18 supervision. Any opportunity months' extended for prison PAT based on confinement in for Waukesha County only Singh's crime could occur if confinement August occurred 3, before 2011 when PAT re- was pealed.3 Singh's § Wis. However, Stat. 973.198. first day any January of confinement for 4, crime was 2012. 3 serving imposed When an inmate who is a sentence under s. positive adjustment 973.01 and who has earned time under s. 302.113, stats., 304.06, stats., 2009 or under s. 2009 has served portion positive the confinement of or his her sentence less adjustment 1, 2009, 3, August time earned between October and

2011, may petition he or sentencing adjust she to court section, sentence under days this on the based number of of positive adjustment time the inmate claims he or she has earned. 973.198(1) (2011-12) added). Wis. Stat. (emphasis

206 County August ¶ 198. On Waukesha order, that, an which related Circuit Court entered began, Singh's confinement the court had before granted Singh days condi- 159 of sentence credit for pursuant jail 13, 2011, to the time. On December tional Singh Hearing Appeals, of the Division of and order days of sentence credit received an additional Singh's custody prior subsequent revocation and to to day Singh's receipt prison. Therefore, at as first days credit, confinement, he received 393 of sentence applied against approximately months, that was his County the Waukesha crime. sentence for County July 2015, the On Waukesha judgment an amended Circuit Court entered given and converted the the credit also documented County jail, year in with sentence to one Waukesha vacated the 18 for time served. The court also credit initially imposed. supervision of extended months sen- 29, 2011, On December was County For the Milwaukee offenses. tenced for both July offense, he sentenced 24 months' 25, 2011 was supervi- extended confinement and months' initial consecutively Waukesha sion, served be concurrently County sentence, with the other but day County confine- His first Milwaukee sentence. July to the 25, 2011 crime is uncertain due for the ment County judgment.4 of the Waukesha modification August offense, 10, 201. For the to 24 months' initial confinement sentenced was concurrently supervision, to run extended 36 months' ex judgment removed confinement The amended crime, County for the Waukesha from sentence tended jail may This have resulted converting to time. his sentence actually County to crimes confinement for both Milwaukee the day. from the first each other concurrent with have been served with all On other sentences.5 the sеntence for the August County Singh 10, 2011 crime, Milwaukee had opportunity no to earn PAT because the PAT statutes repealed August 3, were 2011.

II. DISCUSSION A. Standard Review ¶ brings as-applied 202. an constitutional challenge claiming to Wis. Stat. 973.198, it an that applied unconstitutional ex when law challenge, him. In such a we assume that the statute is just challenge constitutional, as we do when a facial grounds. Tammy a statute is made on constitutional T, W-G. v. 47, Jacob 2011 WI 333 Wis. 2d presume 797 N.W.2d 854. However, we do not that the applied State has the statute in a constitutional man- applica- Id., Rather, ner. our test of the statute's by analysis right tion is driven proponent for the asserts has been burdened the statute. ¶¶ Id., 49-51. petition 203. Here, asserts in his for writ corpus application

of habeas of Wis. Stat. § 973.198 crimes he committed and he for which per- was convicted and sentenced would burden his liberty sonal in contravention of the ex provisions of the federal and state constitutions. sentencing provisions for County the two Milwaukee crimes also could have resulted in the confinement for August beginning crime before the confinement for July 25, possible crime. This was because the sen July tence for the 25 crime was consecutive to the sentence crime, County Waukesha while the sentence August for the 10 crime was concurrent with the sentence for the Waukesha County day crime. The any first of confinement for crime was January 4, petition

¶ writ of habeas a 204. Whether presents properly corpus mixed denied has been App Pozo, question 2002 WI and law. State v. of fact 796, N.W.2d 12. We will 258 Wis. 2d 654 279, 6, they findings unless are historic fact overturn clearly pre- facts However, under the Id. erroneous. question independently law as a review sented, we granted. State ex rel. have been habeas should whether Morgan, 2d 591 N.W.2d v. Wis. Woods 1999). (Ct. App. are not in Here, facts the historic 922 dispute. a writ of habeas Therefore, we decide whether corpus of law. Id. as a matter should have issued Prohibitions

B. Ex Post Facto principles 1. General Constitution the United States 205. Both prohibit clauses that have the Wisconsin Constitution phrase post post Ex facto is a Latin facto laws.6 ex Dictionary 661 Black's Law "after the fact." means 2009). (9th presents question case this ed. determining evalu- "fact" when which fact is is: particular ating ex law violates a contention that post otherwise: whether clauses. Stated facto analysis post the fact of crime turns on correct ex crime, for the the fact of conviction commission, sentencing crime, or some combination for the fact of presented question in this review. is the thereof Supreme inter- Court The United States clause as prets the federal constitution's punishment change for a prohibiting laws that is commission crime because crime after commission required. punishment act for which notice I, 10; art. I, Wis. Const. 9 and See U.S. Const. Art. §§ (1990). Youngblood, Collins v. 497 U.S. We Supreme precedent follow United States Court interprets prohibition the federal constitution's of ex interpreting facto laws when the Wisconsin Con- stitution's ex Thiel, facto clause. State v. (1994). 695, 699, Wis. 2d 524 N.W.2d 641 ¶ important 207. Thiel is an case because in it we Supreme reviewed United States Court decisions that post had broadened the definition of ex facto laws in ways Supreme that Court later concluded were following Supreme erroneous. Id. at 699-703. In Court precedent, initially, adoрted expan- we had that more post sive definition of ex facto laws. Id. at 701. How- expansion ever, we later concluded our was erroneous subsequently because we had done so in reliance on Supreme overruled Court decisions. Id. at 703. explain ¶ 208. To further, we noted in Thiel that Supreme the United States Court in Collins withdrew language Kring (1883), from Missouri, v. 107 U.S. 221 post which included within the definition of ex facto "laws that altered a defendant's situation to his or her disadvantage." Thiel, 188 Wis. 2d at 700. adopted 209. We had earlier this broad defini post

tion of ex facto laws to include laws that altered a disadvantage defendant's situation to his or her in State Powers, ex rel. Mueller v. 64 Wis. 2d 643, 646, 221 (1974). Medley, N.W.2d 692 Mueller, In we relied on (1890). Petitioner, 134 160, 171 U.S. Mueller, 64 Wis. 2d Medley at expansive 645-46. had followed the defini Kring Supreme tion in that, Collins, Court Medley, concluded was erroneous.7 See 134 U.S. at 171. opinion The lead relies on Powers, State ex rel. Mueller v. 64 Wis. 2d (1974), N.W.2d 692 as did the court of appeals. op., Lead ¶¶ 63-66. That reliance inis direct contra Thiel, vention of State v. 188 Wis. 2d 524 N.W.2d 641 on the Mueller Thiel had relied us, 210. Before post expanded facto of ex the definition that recitation anof "alter the situation laws that include laws to disadvantage." Thiel, Wis. 2d or her to his accused Supreme United States we follow Because at 702. interpreting the United precedent both when Court Constitution's the Wisconsin Constitution's States Mueller set concluded that clauses, we facto that and we withdrew definition an incorrect forth interpretations overly of ex from our definition broad clauses. Id. at overruling prior was clear 211. Collins Supreme had held Court decisions United States change any the situation that alters in the law disadvantage party the ex violated to his explicitly set the definition prohibition reaffirmed (1798): Bull, 386, 390-92 3 U.S. in Calder v. out done before that makes an action Every law 1st. done, when law, was innocent and which passing of Every law action. 2d. criminal; such punishes it crime, greater it than makes or aggravates that changes the Every law was, committed. 3d. when than greater punishment, inflicts a punishment, and crime, when committed. annexed to the law evidence, legal rules of Every law that alters 4th. the law different, testimony, than less, or and receives (1990), 37, 42 (1994) 497 U.S. Youngblood, v. and of Collins relies on Similarly, opinion the lead in Thiel. which we followed 129, 133, Matthews, 340 Wis. 2d 115 Eder v. ex rel. State (Ct. "[a] law 1983), proposition for the App. N.W.2d to his an offender punishment increases or alters which sentenced, consti- convicted and detriment, has been after he omitted) (internal (emphasis post facto law . ..." an ex tutes omitted). However, Matthews op., Lead marks quotation therefore, is in contra- Mueller; also Matthews solely relies on Matthews, 115 holding in Thiel. See subsequent of our vention 2d at 133. Wis.

required at the time offence, of the commission of the in order to convict the offender. removed). (emphases

Collins, 497 U.S. at 42 Subsequent ¶ 212. to Collins and in order to post avoid future errors about the definition of ex laws under the Wisconsin Constitution, we held: post law,

[A]n ex prohibited by the Wisconsin Constitution, any is law: punishes "which as a crime an previously committed, act which was innocent done; when which makes more pun- burdensome the crime, ishment for a commission, after its or which deprives charged one with any crime of defense avail- according able to law at the time when the act was committed." (quoting

Thiel, 188 Wis. Collins, 2d at 703 497 U.S. at 42). Supreme 213. United States Court decisions consistently employ

issued Collins, after crime com- punishment mission as the act for which notice of required Peugh, under the ex facto clause. 133 S. Ct. 2078; at (citing Weaver, see also 450 U.S. at 28-29 cases).8 Supreme explained As Peugh: Court

The Framers considered ex facto laws to be "contrary to the first principles of the social compact every and to principle legislation." of sound The Fed- (C. 1961) (J. eralist p. No. Rossiter ed. Madi- opinion The lead Graham, cites Weaver v. 450 U.S. 24 (1981), though as supports it the broad definition of ex facto laws that opinion the lead op., 39, 41, creates. Lead ¶¶ However, 67. Weaver does not do employs so. Weaver date the crime was committed as the act from which it measures whether post Weaver, a law is ex facto. 450 U.S. at 28.

212 son). have fair that individuals The Clause ensures guards against and vindic- warning applicable of laws legislative tive action.

Peugh, otherwise, S. Ct. at 2084-85. Stated crime consequences which notice of commission is act for principle "[T]he required. Clause on which the is persons right to have a fair notion that based—the warning give will to criminal which rise of conduct concept penalties to our of constitu- fundamental —is liberty." States, U.S. 188, v. United tional Marks (1977); Kurzawa, 2d at 511. 180 Wis. employs opinion ¶ definition a new 214. lead changes law it act from which when temporary ex change facto effect is measured include repealed subsequent in a law was sentencing.9 opinion states, The lead conviction provisions early Act 28 were release of 2009 Wis. "the retroactively was convicted effect when County [the offense, for the Waukesha sentenced crime] first he the second as the time committed as well at offense."10 opinion

¶ created the lead 215. The definition they not earn PAT when defendants who could affects statutory act, but due to a the criminal committed sentencing time even enactment, it at the could earn repealed though opportunity the start before was Supreme Court States No United confinement.11 supports opinion's opinion of ex definition the lead any opinion from this court. law, nor does regard crime, first which was In 216. County 16, 2008, October committed Waukesha 36, 44, op., ¶¶ Lead 10Id., 8. 11Id., opportunity there was no for PATin 2008. In PAT Singh was enacted. was convicted and sentenced for legislation permitted the 2008 crime in 2010. The 2009 repealed August him to benefit until PAT was 3, 2011, if he were confined between October 2009 and August 3, 2011. August repeal 217. Because the 3, 2011 of PAT

caused the Singh law to be as it was in 2008 when legislation committed the first of crimes, his the 2011 impose punishment greater did not that was than it Singh was at the time committed the first of his crimes. In any addition, was not confined for of his January crimes repealed. until 4, 2012, after PAT was Therefore, no ex facto violation occurred with the repeal of PAT County for the 2008 Waukesha crime, nor was he repeal. denied PAT he earned before the regard Singh's In crime, second which County was July committed in Milwaukee on 25, 2011, opportunity there was the accordingly, for PAT and potential for an ex facto violation if the PAT he earned had an effect on the duration of his confine- ment. However, from the record us, before it is not possible to make that factual determination, and even provide if it were, habeas will not relief under the facts of this case. potential 219. The for an ex facto violation repeal

on the sеcond crime possible due to of PATis following determine due to pre- circumstances (1) Singh's sented this case: third crime was August committed repealed, on 10, 2011, after PATwas (2) potential and therefore, had initially, no PAT; for received the same Wis. Stat. 973.01 sentence for the third crime as he received for his second crime, 24 months' confinement and 36 months' extended supervision and the sentences were to be served con- (3) Singh's currently; however, the sentence for second Singh's for was consecutive to the sentence crime also (4) crime, first crime; first the sentence for initially pursuant § 973.01, was sentenced which he one-year jail sentence, ex- with was converted to supervision which he received 13 vacated, tended for he on credit and from which was released months' "time served."

¶ of If the modification the Waukesha 220. only one-year jail County it caused to be sentence given credit, he was months' sentence for which third then the began January for his second crimes both sentences had no Because the third crime 2012. opportunity PAT,it not matter whether to earn would Singh for his second crime earned PAT on sentence from confine- he would not have been released because any for his ment earlier due to concurrent sentence third crime. longer Singh addition, In is no confined. 221. supervision on June extended

He was released to remedy from 2014; therefore, of habeas —release nothing Singh point. custody provides this It at — Singh prove, may matter, as a factual can be longer than sentence he confined on the second was may type relief and that some have occurred should not under a writ habeas accorded, but it is due be corpus.12 summary, by relying on acts 222. In opinion sentencing, creates an the lead

conviction and contrary post to the that is facto violation ex Supreme precedent of United States constitutional Court and of this court.13 concurrence/dissent, 167-75. Ziegler's ¶¶ See Justice 36, 44, op., ¶¶ Lead

III. CONCLUSION ¶ 223. We continue to follow United States Su- preme precedent regard defining Court opinion facto laws. Because the lead does so not do attempts expanded instead to create an definition of ex join opinion any law, I do the lead respect. agree ap- Furthermore, I with the court of peals' procedural change conclusion that in the duties of circuit did not courts contravene ex prohibitions. Accordingly, I would reverse the court of appeals' part; part; decision in it affirm in and I respectfully opinion dissent from the lead herein.14 (dissenting). BRADLEY, G. REBECCA J. I opinion dissent from the lead because has not proven any post in facto violation this case. As the opinion explains, Singh lead contends that 38, 2011 Act 302.113(2)(b)(2009-10) repealed § which Wis. Stat. 304.06(1)(bg)1.(2009-10) § and and created Wis. Stat. (2011-12), § Singh 973.198 was an ex facto law.1 argues repealed opportu statutes eliminated nity previously early that existed earn to release through positive adjustment (PAT), Singh time which argues punishment. increased his He also contends the process delays up days § established in 973.198 the release of inmates who PAT earned under the 2009 early changed law and the standards release under the 2011 law. opinion As the lead acknowledges, appro remand not ¶ Id., 1 n.l.

priate majority justices as a of so conclude. 1All subsequent references to Wis. Stat. 302.113 and § § 304.06 will be to the 2009-10 version of the Wisconsin Statutes, and all subsequent references Wis. § Stat. 973.198 will be to the 2011-12 version of the Wisconsin Statutes. Singh challenging

¶ law, must In legislative presumption enactments overcome Cole, v. 2003 WI See State are constitutional. court will 2d 665 N.W.2d 328. This 264 Wis. "every indulge presumption all sustain the law if at any possible," and will resolve doubts favor challenged constitutionality upholding the of the stat- ‍​​‌​‌‌​​‌‌‌​​‌​​‌​‌‌‌​‌‌​​​‌​​​​‌‌‌​‌‌​‌​​​​‌‌​​‍omitted). (citation heavy ute. bears Id. proving the statute is unconstitutional burden of beyond Id. a reasonable doubt. meet this 226. Because has failed to

heavy appeals' burden, I would reverse the court of repeal of the PAT statutes consti- conclusion that I and would tuted a of the ex facto clause violation appeals' holding that Wis. Stat. affirm the court change, procedural which does 973.198 is a implicate ex facto concerns.

I. BACKGROUND presents factual an unusual 227. This case Singh committed his first crime be- scenario because enacted, committed his PAT were fore the statutes effect, and were in crime when the PAT statutes second PAT had his after the statutes third crime committed repealed. on the He convicted and sentenced been was effect, but crime the PAT statutes were first when stayed after not revoked until was this sentence repealed. Singh's second were the PAT statutes accepting joined purposes for the crimes were third sentencing. plea plea the sentence on and his joined PAT the crimes occurred after and third second repealed. statutes were is what date Thus, it critical decide is Singh analyzing an ex established whether

used in post Singh it date committed is facto violation: guilty crime, crime, the date he was found of the sentenced, he date was or some combination of the three? The crimes, timeline of convictions, and against backdrop truth-in-sentencing sentences repeal law and the enactment and of the PAT statutes is as follows:

(cid:127) Singh October 2008: commits the first felony

crime, a H class in Waukesha. (cid:127) felony 2008: A class H had a maximum total years, of six

sentence with a maximum initial years, plus up confinement of three $10,000 to a Truth-in-sentencing fine. law is effect. (cid:127) October 2009: 2009 Wis. Act 28 becomes

effective. Act § created Wis. Stat. 302.113(2)(b) 304.06(l)(bg)l, and Wis. Stat. giving opportunity inmates the to earn PAT days approved by which, if court, the circuit supervision allowed release extended earlier originally imposed. than This did not ever change length the overall sentence; in- any approved days stead, PAT would be added supervision portion on to the extended of a sentence.

(cid:127) felony 2009: A class H had a maximum total years,

sentence six with a maximum initial years, plus up confinement of three $10,000 to a penalty fine, which is the same as in 2008. (cid:127) Singh pleads guilty March 2010: to

Waukesha crime. (cid:127) April County 29, 2010: Waukesha Circuit years, consisting

Court sentences to three of 18 confinement, months initial followed supervision. months extended The sentence is stayed given probation with six jail months of conditional time.

(cid:127) felony total H had a maximum A class 2010: years, a maximum initial of six with

sentence plus up years, $10,000 a three to confinement of penalty as in 2008 and fine, is the same which (cid:127) July the second 25, 2011: commits County. felony in H Milwaukee

crime, a class (cid:127) goes August 2011 Wis. Act 38 into 3, 2011: opportunity repeals to inmates'

effect. Act days, except inmates that current are earn PAT days keep the PAT earned between allowed (the part of of 1, effective date this October 43) August 2011 Wis. and 2009 Wis. Act § 973.198, which Stat. Act 38 also created Wis. provides:

(1) serving a sentence inmate who When an posi- has imposed and who earned under s. 973.01 302.113, stats., s. adjustment tive time under 304.06, stats., has the served s. or under his or her sentence less portion of confinement October adjustment time earned between positive may the 3,2011, petition he or she August the under this sentencing adjust sentence court days positive section, the number of based on that he or she adjustment claims time inmate has earned.

(3) receipt petition filed days Within either (1), sentencing court shall under sub. hearing issue an or deny petition hold adjustment the inmate's sentence relating order supervision. and release to extended (5) the inmate has If the determines court time, may adjustment the court positive earned prison the term of confinement reduce confine- remaining term of amount of time sentence, up to 30 less prison portion of ment in days, lengthen and shall the term of extended length supervision so that the total of the bifurcated originally imposed sentence change. does not (6) An petition inmate who submits under this may apply adjustment section of the same period sentence under s. of year 973.195 for one from the petition. date (cid:127) August Singh 10, 2011: commits another class felony County,

H in Milwaukee the third crime. (cid:127) Singh 9, November 2011: is convicted in Mil- County July

waukee Circuit Court on both the August 25 and 10 crimes.

(cid:127) Singh's probation 13, December 2011: on his

Waukesha conviction is revoked. (cid:127) County 29, December 2011: Milwaukee Cir- Singh years

cuit Court sentences to five each on consisting the two crimes, Milwaukee of two years' initial confinement, followed three years' supervision. extended The sentence on July 25, 2011 crime was consecutive to his sentence, Waukesha but concurrent with August August sentence. The imposed any 2011 sentence was concurrent other sentence.

(cid:127) felony 2011: A class H had a maximum total years,

sentence of six with a maximum initial years, plus up confinement of three $10,000 to a penalty fine, which is the same 2008, 2009, as in and

(cid:127) January Singh prison 4, 2012: starts his sen-

tence. (cid:127) petition June 2013: files his habeas Department

in circuit court after the of Correc- early rejected Singh's request for PAT tions 302.113(2)(b). Stat. release under Wis.

II. ANALYSIS

A timeline, it is essential de- 229. Given this analysis. to use in the ex termine what date opinion appeals' direc- followed the court The lead lumped together commission, dates of tion ap- sentencing: "Like court conviction, and early peals, release we conclude that because retroactively provisions of 2009 Wis. Act were sentenced for the was convicted and effect when he committed the offense, as at the time first as well repeal positive the of retroactive second offense adjustment the Act 28 violates ex time in 2011 Wis. post and United States of the Wisconsin facto clauses sup- op., ¶ law 8. The does Constitutions." Lead port conclusion. this analyzing a law is unconstitu- In whether post

tionally facto, a committed the date crime was ex Graham, 450 U.S. v. date to use. Weaver is correct (1981)("The prohibition post forbids the ex facto 24, 28 any Congress law which and to enact the States pun- imposes punishment which was not for an act a (emphasis committed." at the time it was ishable quoted quotation and source marks added; one set of omitted)). Supreme Court consis- The United States conducting tently an ex of the date commission uses analysis. Jones, post U.S. 244 529 See Garner v. facto (2013). (2000); Peugh States, S. Ct. 2072 United v. agreed Kurzawa, 2dWis. in State v. This court analysis (1994), is "ex facto 509 N.W.2d changes concerned with in the law relative to the time engaged allegedly illegal the defendant in his behav- ior." Id. at 513.

¶ 231. Courts use the date of commission be purpose cause of ex clause provide warning give fair as to what conduct will rise penalties penalties to criminal and what those will be. (citing Kurzawa, See 180 Wis. 2d at 511 Marks v. (1977)). States, United 430 U.S. 191-92 Our prohibition against Founders a included against laws festly Constitution ensure "mani unjust oppressive" punish and laws that person punish after the fact for conduct that was not able before the law Bull, existed. See v. Calder U.S. (3 Dall.) (1798) J.). (opinion 386, 390 Chase, of Colder explained: prohibition against making any their ex post facto greater

laws caution, was introduced very probably from knowledge, arose that the Parlia- ment of Great Britain claimed and power exercised a laws, pass such under the denomination of bills of attainder, pains or penalties; bills the first inflicting capital, less, punishment. and the other legislative These acts were judgments; and an exercise judicial power. they crime, Sometimes respected the by declaring treason, acts to be which were not trea- son, committed, times, when they at other violated (to rules of supply deficiency evidence legal proof) by witness, admitting one when existing the law two; by required receiving oath; evidence without or the oath against husband; of the wife the or other testimony, justice which the admit; courts of would not they at other punishments, times inflicted where the not, law, party by was any punishment; liable and cases, they other greater punishment, inflicted than the law annexed to the very offence.. .. With few exceptions, the advocates of such laws were stimulated resentment, ambition, personal and vindictive by or such, similar, To and acts violence prevent malice. believe, Legis- injustice, I the Federal and State any at- latures, passing bill of prohibited were from tainder; any post or ex facto law. (footnotes omitted).

Id. at 389 prohibits: post ¶ 232. The ex facto clause action, Every that an done before the 1st. law makes done, law, was of the and which innocent when passing criminal; Every 2nd. law punishes such action. crime, greater than it aggravates a or makes it that changes that was, Every law when committed. 3rd. greater punishment, a punishment, the and inflicts crime, the annexed to the when committed. than law evidence, Every legal the rules of 4th. law that alters less, different, testimony, than the law or and receives offence, at time of the of the required commission the offender. in order convict added). post (emphasis The ex facto clause's Id. at 390 meaning fairness. is based on fundamental historical with the at case is concerned See id. 389-90. pun- change prohibition: did 2011 law his third [ing] greater punishment, than the ishment "inflict crime, law when committed." annexed to from ex facto case is clear What in our for the clause's inclusion law and reason analysis proper ex Constitution is effect at the time on laws in focuses timeline, the from the the crimes. As seen committed Singh committed not in effect when PAT laws were he committed 2008 or when his crime in Waukesha August cannot crime. 10, 2011 Milwaukee his (and not) August argue crime his does challenge this because falls within his went into effect. Wis. Act 38 crime occurred after 2011 August 10, 2011 crime is referenced because it is July joint sentencing 25, tied hearing. the to 2011 crime via the proper post analysis ¶ 234. Because a ex facto Singh on the in focuses laws effect at the time commit- Singh any crimes, ted his cannot establish ex relating violation to his 2008 Waukesha At crime. Singh oppor- time committed crime, the 2008 the PAT tunity did exist; therefore, 2011 Wis. Act 38's repeal implicate any of it does not regarding concerns the 2008 crime.2 The 2011 law does Singh's not increase sentence attached to the 2008 change punishment crime because it makes no to the Singh that existed at the time committed the 2008 crime.3

B only ¶ 235. The crime in this case that was committed when the PAT statutes were in effect was Singh's July 25, 2011 Milwaukee Thus, crime. dispositive Singh proved beyond issue is whether reasonable doubt enactment 2011 Wis. Act 2 Although law allowed inmates sentenced after (and 31,1999 days December earn PAT Singh was sentenced 31, 1999), on the 2008 crime after Singh December was never an during inmate By effective dates of the 2009 law. Singh inmate, time an became the 2011 law was in effect. In comparing the law to the laws effect when crime, committed his 2008 no ex facto concerns arise. noted in opinion As the lead at footnote Singh's 2008 Waukesha one-year sentence was amended jail time. Be only applied cause PAT prison, to inmates in sentencing this my supports amendment further conclusion PAT does not apply Waukesha crime. Kemper, See v. App 26-29, 2014 WI 353 Wis. 2d 846 N.W.2d 820 f (PAT only applied prison, to time in spent jail). not time post by taking away 38 violated the ex facto clause Singh's opportunity days to earn PAT on the sentence imposed July Singh for the 2011 crime. has failed to prove repeal of the PAT statutes resulted in an ex post facto violation. July 236. At the time committed the 302.113(2)(b)

25th crime, § Milwaukee Wis. Stat. al- days prison. lowed inmates to earn PAT while in repealed Wis. Act 38 the PAT statutes, but allowed keep any days inmates to PAT earned from the date the PAT statutes were enacted until the date the PAT 973.198(1). repealed. statutes were See Wis. Stat. Singh contends 2011 Wis. Act 38 is an unconstitutional opportunity facto law because it eliminated his days, thereby increasing to earn PAT the time he was prison. opinion in The lead holds the 2011 law is an ex punishment facto law it because makes "the for an offense more burdensome after it was committed." op., ¶ Lead

¶ 237. In order for to succeed on claim, his prove beyond he must a reasonable doubt that changed punishment, 2011 law his and inflicted a greater punishment than the law annexed to the Calder, crime when committed. See 3 U.S. at 390. Although Supreme strayed the United States Court meaning from this historical of the ex years, by expanding any clause over the it to include change punishment disadvantaged a defen- Kring (1883), dant, Missouri, see v. 107 U.S. 221 Lindsey Washington, (1937), v. 301 U.S. Weaver, Florida, 450 U.S. at and Miller v. 482 U.S. (1987), rejected 423, 433-34 the Court later "disadvantaged" test. Youngblood, 37, 50, 497 U.S. In Collins v. Kring

(1990), Supreme Mis- v. Court overruled souri: only justified if the Ex Post holding Kring can be merely the thought include not

Facto Clause any change "alters the categories, which but Calder disadvantage." We think party to his situation of a departs meaning from the reading of the Clause suсh a at the time of the it was understood of the Clause as Constitution, supported and is adoption of the Kring. accordingly overrule cases. We later Depart- Further, in Collins, 497 U.S. at 50. California (1995), Morales, v. 514 U.S. ment Corrections "disadvantage language the defendant" Court said unnecessary Lindsey, Weaver,and Miller "was used in and is inconsistent with in those cases results developed [ex facto] post in Collins v. framework (1990)." Youngblood, Morales, 415 U.S. 497 U.S. explained: at 506 n.3. The Court Collins, inquiry of the ex After the focus facto legislative change produces some not on whether a nor, "disadvantage," as the dissent ambiguous sort of suggest, whether an amendment affects a seems to on advantage provisions take

prisoner's "opportunity to release,".. any change early . but on whether such for of criminal conduct or increases alters the definition punishable. penalty which a crime is added). (emphasis Morales, n.3 415 U.S. at 506 for a case, 239. In that Morales was convicted murder in in 1971 and a second murder committed murders, At the time he committed the Califor- suitability hearings required annual after the nia law hearing. parole Id. at 503. In the Cali- initial legislature authorized the Board of Prison fornia (Board) Terms to defer subsequent suitability hear- ings up years three in certain circumstances. Id. In 1989, Morales was denied parole after his initial Id. at 502-03. The Board scheduled parole hearing. his next parole hearing for three years later pursuant to the 1981 law. Id. at 504. Morales claimed he was entitled to an annual parole hearing because that was the law when he committed his crimes, and, as a result, the 1981 law violated the ex clause. Id. The Court refused to interpret the ex post facto clause in a manner to require the judiciary to micro- manage an "endless array of legislative adjustments parole sentencing procedures," "might create some speculative, attenuated risk of affecting prisoner's actual term of confinement it by making more difficult for him to make a persuasive case for Id. at early release." Instead, 508-09. the Court examined whether the new legislation produced "a sufficient risk of increasing the measure of punish- ment attached to the covered crimes." Id. at 509. The Court went on to conclude the at legislation issue in Morales did not violate the ex post facto clause. Id. at 510-14. In Peugh, S. Ct. the Supreme

Court again analyzed the clause. It held that a defendant who committed crimes in 1999 and 2000, but was not sentenced until should be sentenced using the sentencing guidelines that were in effect at the time he committed the crimes, rather than at the time he was Id. at 2078-79, sentenced. In Peugh, the Court that the emphasized "basic principles of fairness that animate the Ex Post Facto Clause" are ensuring individuals have fair warning appli- cable and are laws not saddled with vindictive legisla- Id. tive action. at 2084-85. The Court de- given inquiry as "whether the ex scribed change increasing presents risk of a sufficient in law punishment to the covered attached the measure speculation emphasized or that "mere crimes" and retrospectively change conjecture in law will punishment not suffice to a crime will for increase the Clause." Id. the Ex Post Facto a violation of establish (two quoted quotation marks sets of at 2081-82 omitted). retrospective increase Because the sourсes sentencing changed Peugh's sentencing guidelines the range months, id. at 70-87 months to from 30-37 guidelines consti- the new Court held 2078-79, the Id. at 2084. facto violation. tuted an ex pronounce- Supreme latest Court's on whether facto law focuses ment on ex retrospective in the measure of causes an increase

law punishment it to the crime when that was attached Wis. Act committed. no doubt that 2011 There is was serving opportunity inmates then 38 eliminated the August days 3, 2011. The PAT after to earn sentences change parole policy in however, like the law, change received Morales, the sentence did not July Rather, it eliminated 25, 2011 crime. for his days, possibly opportunity could earn PAT which days converting ex- some confinement have led to supervision time.4 tended (1997), Mathis, Supreme U.S. 433 Lynce In v. cancelled a Florida law that declared unconstitutional Court already Lynce had early release credits. provisional earned completed his sentence prison he released from because been based on time served early release credits. Id. plus provisional a result and reincarcerated as Lynce at of the new law was rearrested 435-36. early release credits. cancelling provisional violated the ex held the Florida statute Id. at 436. The Court already used Lynce earned and had post facto clause because merely "an law did not remove early release credits—the original meaning 242. Under the the ex clause, facto courts should "draw a distinction between penalty person anticipate can for the com- particular opportunities crime, mission of a mercy and for clemency may go or to the reduction of the (Scalia, penalty." Garner, 529 at J., U.S. concur- ring). very 243. The PAT at statutes issue here were mandatory parole

different from cases where produced courts held the new law example, Weaver, violations. For in the ex reducing mandatory gain law involved time credits. gain-time credits were automatic under both the legislation. old Id,., and new 450 U.S. at Under automatically law, old an inmate was entitled to days according receive or off the sentence to good conduct formula whereas the new law sub- stantially gain-time reduced the to formula 6 or 9 days off at 26, Mueller, the sentence. Id. 36. In changed parole eligibility years new law from two years. Id., five 64 Wis. 2d at 645. Under the old law, right" inmates "as a were matter of considered for parole serving years prison. after two in Id. at 647. opportunity early Id. put release." at 447. The new law Lynce, completed who had been released because he his sentence, in prison. Thomas, As Justice back Id. Clarence joined by explained Antonin a concurring Justice Scalia opinion: present [Lynce] merely "The case involves an credits, effect availability on the release but the future already retroactive elimination of credits earned used." Id. quite at 451. are Lynce. The facts case different than The 2011 PAT away days Singh already law did not take had used, earned lengthen and the 2011 did not the overall law imposed. Singh challenges sentence The 2011 removed an law opportunity possibly days supervi- convert confinement days. availability days, sion It affected the of future PAT but did not already eliminate credits earned or used. "right" years. changed at five Id. that

The new law distinguish an automatic facts between 645. These part right, sentence, the to be of which was known presented where an inmate and the here situation early opportunity possibly release, earn PAT had an length change of the not the overall which does imposed.5 in- Weaver nor Mueller sentence Neither days possibly opportunity have PAT volved the days lengthen supervision but confinement shorten significant Muel- It that both Weaver and time. is also "disadvantage to a defendant" lan- relied on the ler guage laws in those violated to conclude that the cases post language has noted, ex As that clause. proper test withdrawn, and is not to use been post analysis. Collins, 50; See 497 at this U.S. Thiel, 695, 702-03, State v. 2d 524 N.W.2d Wis. (1994)(withdrawing language that ex Mueller's whether new law "disadvan- facto test reviews defendant). tages" a noting punish-

¶ 244. It is also worth that felony Singh's H not ment for crime—a class —has changed. years up maximum six with to a It was applies v. Powers the ex facto doctrine both Mueller of the crime laws that relative to the date commission and 646, 643, change sentencing. 64 Wis. 2d after conviction (1974). change my 221 N.W.2d 692 This does not conclusion that the time law is in effect on the date of critical is what legislation after of the crime. New will often come commission naturally sentencing these after conviction and as events occur of the See State ex rel. Eder v. commission crime. also (Ct. 132-133, Matthews, 129, App. 115 Wis. 2d 340 N.W.2d 66 lan 1983)(citing Mueller for the "convicted sentenced" mandatory guage in issue "when a a case where the was parole prison release violator returned to to serve forfeited credit, good Department can the order the forfeited time purpose calculat time be treated as 'new sentence' for the omitted). time.")(footnote good ing years' plus up three confinement $10,000 to a fine in 2008, 2009, 2010 and 2011. 2011 Wis. Act 38 did not change punishment annexed to the crime at the he committed time it. committed See State ex rel. App Gamble, Britt v. WI 257 Wis. 2d (holding subsequently 689, 653 N.W.2d 143 re- pealing the law in existence at the time the crime was gave opportunity committed that defendant the to ask early release was not ex facto because the extended). imposed sentence not was The 2011 law did change punishment "attached" to the crime July committed on It removed hope opportunity or earn conversion of confinement days supervision days, into extended but did it not increase the sentence attached to the crime he commit- ted. significant

¶ It 245. is further that the 2011 legislation application does not offend a faithful of the post meaning. ex facto clause's historical The 2011 law greater punishment already did not inflict a than what Singh's existed for crime when he committed it. The gave opportunity 2009 PAT statutes an inmates days possibility converting earn PAT with the con- days supervision days. finement into extended mandatory 2009 PAT statutes not were and release guaranteed. under the statutes was The 2009 PAT change length statutes did not the overall of the imposed nothing suggest sentence and there is the legislature repealed oppressive PAT statutes to be 973.198(1) contrary, § or vindictive. To the Stat. Wis. language keep included to ensure inmates could already earned, PAT time which demonstrates fairness mercy. Singh Furthermore, 246. cannot from benefit though PAT even it time existed at the he committed July not an inmate he was 25, 2011 crime because his days opportunity existed. to earn PAT when the legislation increased that the 2011 claim speculative. punishment if Even his measure of days, Singh earn PAT an and able to had been inmate early request PAT his is no evidence that there granted. Thus, claim is his have been release would post speculation, support pure an ex which cannot facto violation. Accordingly, I failed to conclude any violation. I would reverse

establish ex holding part appeals' opinion the court of legislation facto clause. the 2011 violated C argues Stat. 973.198 also Wis. delays it clause violates the ex because days, up time, inmates who have to 90 to release early successfully petitioned for release and because making changes associated with PAT- it the standard early release decisions. Section 973.198 does based change respect procedure petitions. to PAT with petitioned law, inmates the "earned Under the 2009 noti- release commission" and the commission review sentencing court, the which then decided whether fied grant deny request. the inmate's Under the or process participation law, in the the commission's petitions sentencing the the eliminated and inmate directly. Singh argues In the 2011 law addition, court timing petitions: 2009, PAT in the altered the of the eligibility process 2011, before the date and started process eligibility on the date. starts changes appeals The court of held procedural § do are and therefore Wis. Stat. 973.198 implicate post agree ex I facto. with the court of appeals explained on this issue for the reasons it in its opinion: procedural

A change in the law is one that "simply [s] alter employed methods in determining" punishment whether the imposed is to be rather than "chang[ing] quantum . .. the punishment attached to the crime." procedural And while a change, in some cases, may have a impact substantive that violates the post clauses, ex "speculative and attenuated possibilities]" increasing prisoner's actual term of confinement do not violate the clauses. Because a significant prolonged risk of confinement is not inher- ent in the framework of the Wis. Stat. 974.198 procedural change, such risk must be demonstrated on the record post or an ex facto violation will not be found. has not met proving his burden of this change in the method securing early release based upon post PATviolates the ex facto clauses.

Singh Kemper, App v. WI 353 Wis. 2d (citations omitted). Although 520, 846 N.W.2d 820 parties disagree language as to whether the of the statutes under the 2009 law and the 2011 law differ respect request potential with to when the to start the early process disagreement starts, release this need change removing not be resolved. The in the law intermediary altering commission as the timing petitions procedural changes, ‍​​‌​‌‌​​‌‌‌​​‌​​‌​‌‌‌​‌‌​​​‌​​​​‌‌‌​‌‌​‌​​​​‌‌​​‍are both implicate which do not ex facto concerns. See Florida, Dobbert v. U.S. 293-94 (1977)("Even though may disadvantage it work to the procedural change defendant, of a is not ex facto."). part I would affirm that of the court of appeals opinion holding § 973.198 did not violate the facto clause because the new statute ad- pun- quantum procedure "the rather than dresses id. at 294. the crime." See attached to ishment respectfully dissent. reasons, I these 250. For Chief Justice to state that I am authorized joins part C of DRAKE ROGGENSACK PATIENCE opinion. this

Case Details

Case Name: State Ex Rel. Singh v. Kemper

Court Name: Wisconsin Supreme Court

Date Published: Jul 13, 2016

Citation: 883 N.W.2d 74

Docket Number: 2013AP001724

Court Abbreviation: Wis.