*1 Plaintiff-Respondent, State of Wisconsin,
v. Dеfendant-Appellant- Michael D. Jackson, Petitioner.
Supreme Court
11,
argument
No. 02-0947-CR. Oral
November
Decided March
For the the cause was plaintiff-respondent argued Herman, Lara M. assistant attorney general, with whom on the brief was A. Peggy Lautenschlager, attor- ney general. BRADLEY, ANN WALSH J. The petitioner,
Michael Jackson, seeks review of an deci- unpublished sion of the court of a circuit court appeals affirming of judgment conviction and order denying postconvic- repeat convicted offender, Jackson was As a tion relief.1 operating consent, a without owner's a motor vehicle fleeing felony, officer, an unclassified an E and Class felony. penalty enhancers how 2. This case аddresses calculating applied felonies in unclassified
are to be under Truth-in- term of confinement the maximum Sentencing that the court I.2 Jackson contends calculating appeals maximum term of his erred six-year by failing to add the confinement available imprisonment to the full term (1997-98).3 pursuant He also 939.62 to Wis. Stat. should have bifurcated the court advances and extended enhancer between allocating supervision, maximum term of it to the 75% for confinement. available appeals agree that the with the court 3. We nor to bifurcation enhancer is neither underlying term of
it to pursuant added to the However, we also 939.62. to Wis. Stat. appeals' reliance on Wis. court of determine that the 973.01(2)(d), specifying the statute (Wis. Jackson, 02-0947, slip op. unpublished v. No. State 2003) and an order of (affirming judgment App. April Ct. Konkol, County, Daniel L. for Milwaukee the circuit court Judge). Truth-in-Sentencing legislation in two adopted Wisconsin TIS-I, enacted in June 1998 phase, The first was
phases. *4 31, or after December committed on applied offenses TIS-II, enacted in phase, was Act 283. The second See 1997 Wis. February 2003. See 2001 Wis. became effective July 2002 and provisions under the of Jackson was sentenced Act 109. Because changes of TIS-II. TIS-I, the recent this case does address are to the Statutes All references Wisconsin noted. version unless otherwise 1997-98 imposed by extended the court be at imposed, least 25% of the term of confinement was misplaced. Ultimately, although our method of calcula- by appeals, tions differs from that used the court of we affirm because the difference here in the calculations practical has no effect on Jackson's sentence.
I operating ¶ 4. Jackson was convicted of both a fleeing motоr vehicle without owner's consent an Operating officer. a vehicle without owner's consent is a felony years Class E with a maximum sentence of five of imprisonment. 939.50(3)(e). Fleeing Wis. Stat. an felony officer is an unclassified with a maximum sen- years imprisonment. tence three Wis. Stat. 346.17(3)(a). repeat offender, As a Jackson was sub- ject years imprisonment to a of six 939.62(1)(b). on each count. Wis. Stat. charged
¶ 5. Because Jackson was and convicted Truth-in-Sentencing (TIS-I), I his sentence was bifurcated into a term of confine by supervision.4 ment followed a term of extended enhancer, Without the maximum term of felony years, for the Class E was two while the maximum term of confinement for the unclassified years, was two three months. Wis. Stat. 973.01(2). repeater enhancer, With the circuit court increased the maximum term of confine years. ment for each offense six Truth-in-Sentencing legislation, "impris 4 Under the term prison. Rather, "imprisonment" onment" does not mean time in (in prison) consists of both the time of confinement and the time following spent supervision. the confinement on extended See 973.01(1). *5 misunderstanding, sentencing, to a At due penalty that without the circuit court indicated for the maximum term of confinement enhancer, the "something felony 18 months" was like unclassified error, the 27 months. Based on that when in fact it was sentenced Jackson with the belief that circuit court he amount of confinement faced with maximum (18 years, repeater enhancer was seven six months = months) + for the unclassified months 72 months correctly fleeing charge. determined that The court penalty enhancer, maximum amount of with the operating for a motor vehicle without confinement (24 felony, eight years consent, the Class E was owner's months). = + 72 months Jackson was months (96 months) years imprisonment eight sentenced to months) (72 consisting years of six count, on each (24 months) years and two of extended confinement concurrently. supervision, to run subsequently post- filed a motion for 7. Jackson arguing relief, conviction that the circuit court incor- rectly the maximum terms of confinement calculated the classified and unclassified convic- both general repeater tions. He claimed that because enhancer statute states that "maximum imprisonment" increased, the circuit term of required penalty enhancer to the court was to add the six-year then to bifurcate the and ex- enhancer into a term of confinement adding to the tended before it supervision on his offenses. and extended argued Accordingly, Jackson Wis. 973.01(2)(b)6, only add the court could 75% (54 months) underly- six-year penalty to his ing The circuit court denied the terms confinement. properly concluding added the it had motion, appealed. Jackson enhancer. appeals affirmed the circuit *6 ¶ The court 8. slip unpublished Jackson, 02-0947, No. State v. court. 2003). (Wis. doing App. April so, In it op. ¶ 24, 2 Ct. at bifurcating pen- argument for Jackson's noted that App alty Volk, v. 2002 WI with State enhancer conflicted 24, which ¶¶ 584, 2d 654 N.W.2d 35-36, 258 Wis. 274, enhancers added to the are to be held that supervision. Id., extended and not to of confinement explained a that while ¶ The court 8. of confine- maximum term
is added to 973.01(2)(d) regard- of Wis. Stat. ment, the 25% rule ing to limit the time serve extended Id., ¶ actually 9. in confinement. to be served available calculations, ¶ of mathematical After a series 9. appeals circuit court concluded that the the court felony E a correct with Jackson on Class sentenced understanding confinement, maximum term of (96 months), eight years him on the sentenced but felony the mistaken belief unclassified years, six sevеn confinement was maximum months). (90 Id., The court determined months maximum term that the true years, actually felony and two seven was unclassified months). (86.4 Id. months four-tenths judgment Nevertheless, it affirmed ¶ 10. denying postconviction relief, rea- order conviction soning had sentenced the circuit court that because convic- count, the terms on each concurrent Jackson to unchanged, remain E offense would for the Class tion have would of the unclassified reduction and the upon id., The practical sentence. See effect his no reconsidera- motion for to file a Jackson court invited sought resentencing, tion if he still but Jackson instead petition a filed for review with this court.
HHI—I
¶ 11. This case addresses how
enhancers
applied
sentencing
determining
are
at
the maximum
term of confinement for unclassified felonies under
interpre-
TIS-I. Our resolution of this case involves the
intеrpretation
tation of several
statutes.
of a stat-
presents
question
independent
ute
of law
appellate
Byers,
review. State v.
12,
2003 WI
(citing
Setagord,
2d 113,
Wis.
HHHHH begin by examining 13. We our discussion applica- relevant statutes. Since this case involves the penalty tion of a enhancer, we look first to Stat. Wis. provides 939.62, which for for enhancers repeat part: offenders. It states in
939.62 Increased criminality. for habitual (1) term defined repeater, as that is If the actor is a any crime for is for (2), present conviction and sub. . the maximum may imposed be . . imprisonment which crime by law for that prescribed imprisonment increased as follows: may be
(b) year not than one but term of more A maximum by more than increased not years than 10 more for misdemeanors convictions were years prior if the was years prior if the conviction by more than 6 felony. a for added).
(Emphasis he a concedes that case, Jackson In this conviction. prior of a on the basis repeater imprisonment" "maximum term of Accordingly, six Wis. by years. is increased each of his offenses 939.62(l)(b). at the application encompasses 15. Our inquiry felonies enhancers to unclassified sentencing repre- 973.01 Wisconsin Stat. legislation. TIS-I TIS-I. it existed under Truth-in-Sentencing sents 973.01(1) a circuit court to impose requires of confine- of a term consisting sentence a bifurcated when- extended a term of ment followed It states: to "imprisonment." it sentences person ever and ex- sentence of 973.01 Bifurcated supervision. tended
(1) REQUIRED. Except as BIFURCATED SENTENCE (3), a court sentences in whenever provided sub. prisons state in the Wisconsin person to 1999, on after December felony committed or for a that con- sentence impose a bifurcated the court shall by a prison in followed of a term of confinement sists 302.113. under s. term of extended ¶ 16. The for structure each bifurcated sentence 973.01(2). is set forth in Wis. Stat. Subdivisions to 5 973.01(2)(b) specify of Wis. Stat. the maximum term of for confinement classified felonies. Subdivision 6 addresses the term maximum of confinement un- inquiry. felonies, classified which is the of our focus The provisions relating to unclassified felonies under Wis. 973.01(2)(b)6 provide part:
(2) STRUCTURE OF BIFURCATED SENTENCES. The court shall ensure that a bifurcated sentence (1) imposed complies under sub. all of the with follow- ing:
(b) Imprisonment portion of bifurcated sentence. portion of the imposes bifurcated sentence that a term of may in prison confinement not than year, be less one any minimum prescribed sentence for the felony, and, except provided (c), par. not exceed whichever of following applicable. (b) [Subds. 1 to 5 list the maximum term of confine- ment for classified B through E] felonies any felony 6. For other a felony specified than in subds. 5., 1. to the term of prison may exceed 75% total sen- the bifurcated tence. key understanding applicability 17. The enhancers under TIS-I lies in Wis. Stat.
§ 973.01(2)(c), "[pjenalty which is entitled enhance- provision ment." The first sentence directs the sentencing court to add the enhancer to the explains maximum term confinement. The second relationship between the increased of confine- imprisonment. ment and the overall term of states: *9 (c) The maximum term con- Penalty enhancement. of (b) par. may in be increased prison specified finement If the maxi- penalty enhancement. by any applicable (b) prison specified par. mum term of confinement length paragraph, this the total increased under may imposed is in- sentence that be the bifurcated by the same amount. creased added).
(emphasis language Despite of Wis. Stat. 973.01(2)(c), ap- the court of Jackson contends that years adding peals of enhance- in underlying the entire six erred argues of confinement. He ment to the been added to enhancer should have instead that the pursuant to Wis. Stat. the term Additionally, en- he that the 939.62. asserts confinement and bifurcated between hancer should be six-year enhancer extended with 75% months) (54 underlying term of confine- added to his 973.01(2)(b)6.5 Stat. ment under Wis. that Wis. Stat. 19. The State counters 939.62(l)(b) 973.01(2)(c) unambiguously pro-
§§ six-year repeater penalty enhancer should that the vide underlying maximum term of confine- added to the imposed for each of Jаckson's that could be ment observes that Wis. offenses. It further 973.01(2)(b)6 provide the bifurcation of does not explains for unclassi- enhancers; rather, it underlying term of confinement felonies, fied imprisonment. total exceed 75% of the not clear, entirely appears Jackson Although it is not court that because position he took in circuit maintain the and increases the term six-year penalty enhancer is added to into must be bifurcated imprisonment, enhancer (Jackson's supervision. and extended a term of confinement 10-12). at Brief agree pen- ¶ 20. We with the State that Jackson's alty was to bifurcation and was correctly added maximum term of *10 Ultimately, difficulty confinement. we have with positions ignores First, Jackson's is twofold. Jackson language 973.01(2)(c), of Wis. Stat. which antici- pates question specifically before us and directs penalty courts to add the enhancer to the term of thereby increasing confinement, overall imprisonment by the same amount. Wis. Stat. 973.01(2)(c). appeals recog- Second, as the court of precedent nized, Jackson's contention conflicts with the Volk, 2dWis. 584. appeals ¶ Volk, 21. In the court of confronted a involving similar issue the effect of enhancers Truth-in-Sentencing. on classified offenses under argued There, the defendant the circuit court erroneously applied enhancer of Wis. Stat. 939.62 to the extended term of his bifur- appeals agreed, Id., ¶ cated sentence. 2. The court of holding that Wis. Stat. does not allow a sentencing impose any portion court to of a supervision. enhancer as extended Id. The court based interpretation, part, language its on the apply statute, which authorized to courts the enhancer to the term of confinement but conferrеd no such supervision. Id., authorization for the term of extended upon legislative history support It 36. also relied ¶¶ Id., its conclusion. 41-42 history legislative cited the court report appeals the final of the Criminal in Volk was Study The Committee was Committee.6 Id. Penalties making charged responsibility of recommen- with the Truth-in-Sentencing legislation regarding the dations necessary imple- legislation drafting proposed and ment those recommendations. State Wisconsin Study Report Committee, Final Criminal Penalties August ("Report"), 31, 1999, at 6. report, rec- In its the Committee made two regarding penalty enhancers under Wis.
ommendations 973.01(2)(c). First, it noted: enhancers increase the pleaded proved, If these for the maximum term term of im- crime and increase the overall maximum *11 They lengthen do not the maxi- prisonment as well. underlying the mum term of extended crime.. .. (footnotes omitted).7
Report 60at Sеcond, the Committee advanced: Study report can be The Criminal Penalties Committee's http://www.doa.state.wi.us/docs_view2.asp?docid=42. accessed at example, Report the continued: providing In an by a [Sluppose of the crime of assault that one has been convicted danger- dangerous weapon... . The prisoner armed while with years weapon penalty to the maximum term enhancer adds 5 ous charges likewise for the assault while by increasing the the overall maximum of extended It increase the maximum term same amount. does not supervision. Committee, Study Final of Wisconsin Criminal Penalties State (footnotes omitted). 31, 1999, August at 60 Report, . supervision caps regard- The extended . . would apply penalties less of whether the for the crime of conviction been have increased because the actor is a habitual criminal the рenalty because one of enhanc- and/or pleaded proved. ers ... has been In these instances according the maximum term of confinement increases in schedules the Statutes and overall maximum of imprisonment a like increases amount. however, maximum term of extended supervision, does purposes super- not increase.... Given the of extended vision, the Committee believes this amount is suffi- It adjusting super- cient. does not recommend extended caps penalty (including vision when enhancers habitual criminality) present are the case. omitted). (footnotes
Report at 20 ¶ 25. While the focus of Volkinvolved effect of penalty supervision, on enhancers extended we never- present theless find it instructive case. As the explains question brief, State real its "the in both [this Volk] case and is how are enhancers to be applied Truth-in-Sentеncing's bifurcated sen- tencing structure." making arguments, ignores
¶ 26. In his Jackson language specifi- Stat. Wis. which cally states that the enhancer is added to the confinement, maximum term of which in turn increases imprisonment by the total the same amount. 939.62(l)(b) He is correct to note that Wis. provides general repeater imprisonment" by increases "maximum term of six years. truth-in-sentencing provisions Yet, it is the *12 § explain Wis. Stat. 973.01 that how that increase in the imprisonment may accomplished. maximum term of Finally, in an maximum 27. effort to reduce the felony, operating E his Class a argues motor consent, vehicle without owner’s Jackson by adding penalty that a enhancer to this classified felony felony, an for the it transforms into unclassified 973.01(2)(b)6. § purposes of Stat. That statute Wis. provides: any felony felony specified
6. For other than a in subds. 5., may in prison 1. to the term of confinement not exceed 75% of the tоtal of the bifurcated sen- tence. 973.01(2)(b)6.
Wis. Stat. operating ¶ 28. Jackson reasons that his a motor conviction, vehicle without owner's consent which is felony E listed as a Class under subdivision 5 of Wis. 973.01(2)(b) felony an be- becomes unclassified 1-5 cause no classified felonies listed subdivisions contain a enhancer. He contends that it there- felony, of an fore falls within the definition unclassified felony felony specified in i.e., a "other than a 1. to subds. 5," and the maximum term of confinement imprisonment. exceed 75% argument Although novel, Jackson's is with- Essentially authority. position addi-
out his tion a enhancer renders all felonies unclas- 973.01(2)(b)6 language sified. The of Wis. Stat. belies language Indeed, of Wis. Stat. such contention. 973.01(2)(b)6 contemplates a distinction between exempts classified and unclassified felonies when it scope. pro- felonies from its Because Jackson classified challenge E vidеs no basis to his Class sentence rejected argument, other than this transformation we only application need address the enhancers felonies. unclassified upon sum, In based Volk 973.01(2)(c), legislative history, together with its we legislature not intend sentenc- determine did *13 ing penalty enhancers between courts bifurcate supervision or add them to confinement and extended imprisonment pursuant the term of to Wis. Stat. § 939.62, Rather, as Jackson advances. it intended to add them to the maximum term of confine- courts thereby increasing offense, ment for each imprisonment by the overall term of the same amount.
IV Having ¶ 31. determined that the defendant's proffered methodology error, is in we turn next to the question of how to calculate the maximum confinement penalty time for unclassified felonies with enhancers circuit at a under TIS-I. The court arrived conclusion by appеals, different from set forth the court of which in turn differed from that advanced the State. agree All that for unclassified felonies initially enhancer is added to the term of pursuant to Wis. Stat. and that the enhancer cannot bifurcated. For the felony, fleeing officer, unclassified an the maximum years, confinement without a enhancer is two (27 months). three months conclusions felony maximum confinement for the unclassified with six-year penalty enhancer are as follows: (90 months) years, court: six months Circuit seven years, appeals: Court of seven two four-tenths (86.4 months) months (99 eight years, State Wisconsin: three months
months). appeals decision, In its the court of deter- mined that the circuit court sentenced Jackson on his unclassified mistaken belief that years, maximum term of confinement was seven six (90 months). unpublished op. slip Jackson, months at ¶ 17. The court concluded that the true maximum term *14 yeаrs, of confinement was seven two and four-tenths (86.4 months). months Id. figure by noting
¶ 34. It arrived at this first pursuant 973.01(2)(c), adding to Wis. a six- year penalty underlying enhancer to the maximum underlying confinement, term of imprisonment maximum term of years. is likewise increased six In calculating, the court added the enhancer six (72 months) years to the maximum term of (27 months) confinement for a total of 99 months Id., ¶ maximum term of confinement. year (72 months)
Six enhancer (27 Underlying months) + maximum term of confinement months
99 (72 months) year penalty Six Underlying (36 months) imprisonment + maximum term of months applied supervi-
¶ 35. It then the 25% extended 973.01(2)(d) sion rule found in Wis. Stat. to limit the Id., ¶ term of confinement. 25% extended supervision "[t]he that, rule states term of extended supervision the term of follows confinement prison may than be less 25% of the (b)." prison imposed par. confinement 973.01(2)(d). appeals The court of inter- preted require to this that Jackson's term of available (108 imprisonment, years mоnths), greater nine equal confinement, than or to his term of available (99 years, months), eight plus three months 25% of that (24.75 months). id., ¶ confinement term See 16. Be- not, it cause was the court reduced the maximum amount of months, confinement term of 86.4 supervision rule. Id. extended
consistent with the 25% explained calculations as follows: The court its be 25% of confinement supervision If extended must must be plus confinement supervision and extended imprisonment, maximum equal than or less dividing Jackson's conceptualized can be problem parts: into 5 maximum 108-month part supervision. and 1 extended parts confinement Therefore: = = 21.6
minimum extended 108/5 = = 4 21.6 [x] maximum confinement 86.4 maximum that Jackson was to a It follows amount, of 86.4 months because this when 108-month maximum sen- compared with Jackson's *15 months) (21.6 tence, extended of 86.4 leaves 25% supervision.
Id., 16. appeals' on The court of reliance Wis. Stat. 973.01(2)(d) requires § misplaced. That statute here is extended be at least 25% that the amount of sentencing court of confinement that the of the term 973.01(2)(d). § placing imposes. In its focus Stat. Wis. supervision, the court of on the appeals rule of extended 25% for the rule of Wis. Stat. failed to account 75% 973.01(2)(b)6, specifically calcu- which addresses the maximum term of confinement for unclassi- lations of fied felonies. provides noted, As earlier this 75% rule any felony specified "[f]or other than a
that, [the felonies], the term of 5., 1. to classified subds. prison not exceed of the total 75% the bifurcated sentence." Wis. 973.01(2)(b)6.8 appeals properly- Had the court § 973.01(2)(b)6, on rule of focused the 75% there would have been no need to the mini- resort to supervision requirements mum extended to reduce the maximum term of confinement. Had it taken Wis. Stat. 973.01(2)(b)6 into it account, would have determined, do,we that the maximum term оf confinement here supervi- not run afoul of the minimum does extended requirement. sion appeals,
¶ 38. Unlike court the State ad- 973.01(2)(b)6. asserts, dresses Wis. Stat. It however, 973.01(2)(b)6 speak that Wis. Stat. does not to the applied. of how are Rather, issue enhancers explains State that the statute discusses how unclassi- prior penalty- fied felonies are bifurcated to or a without applied. being Accordingly, enhancer it contends that six-year could the circuit court have added the entire (72 month) penalty to the enhancer maxi- (27 years, mum term confinement, two three months months), eight years, for a total of available term of (99 months). three months (72 year months)
Six (27 months) + Underlying maximum term of confinement months language ¶ 39. It is unclear from the of the stat- legislature intended, if asserts, utes as the State TIS-II, only Under unclassified few felonies remain. *16 operating These include an automobile whilе a intoxicated with (third passenger offense), minor or fourth Wis. Stat. 346.65(2)(f) (2001-02), § and the of com enhancement mitting during period following domestic abuse the 72-hour a (2001-02). § domestic abuse incident. Wis. Stat. 939.621 There fore, the application 75% rule has limited for future cases.
disjoin requirement of Stat. Wis. the 75% 973.01(2)(c) 973.01(2)(b)6 § § alto- from Wis. Stat. position acknowledge gether. re- that the State's We garding statutory Yet a reasonable one. the scheme is interpretation of the statu- there another reasonable is together. tory the should be read scheme: two statutes 973.01(2)(b)6 § ¶ Stat. instructs 40. Wisconsin maximum of confinement for how calculate the to identify step to The first is unclassified felonies. length This accom- total of bifurcated sentence. is by relying plished of Stat. on the second sentence Wis. 973.01(2)(c), explains the total which that by is increased the same the bifurcated sentence maximum that was added to аmount arriving enhancement. After term of confinement with 973.01(2)(b)6 figure, the rule of at this applies 75% Wis. determine the maximum term available. concerning severity there doubt 41. When statute, law described Wisconsin
provides a favor a milder over that court must (citing penalty. Cole, 2d 262 Wis. harsher 289). lenity generally Morris, 108 Wis. 2d at This rule penal ambiguous statutes should establishes interpreted result, in favor the defendant. Id. As a we interpret in favor of the statute Jackson. lenity, Applying the rule we conclude 973.01(2)(b)6 together read should be with
Wis. Stat. in calculation of the maximum Wis. Stat. pen- felonies term of confinement unclassified with alty apply rule of enhancers under TIS-I. We 75% 973.01(2)(b)6 enhancer is after underlying maximum term of confine- added to the pursuant turn, addition, ment. the second This *17 § 973.01(2)(c), sentence of Stat. Wis. the total increases imprisonment by same amount. We then apply imprisonment rule term 75% to the total of to calculate the maximum amount confinement for the felony unclassified with the enhancer.9 year (72 months) Six enhancer Underlying (36 months) + imprisonment maximum term of
(Pursuant _ (2)(c)) to Wis. Stat. § 973.01
108 months = 108 x months 75% 81 months maximum amount confinement Although ¶ 43. our the maxi- determination of mum term of for Jackson's unclassified felony than is less both the circuit court and court of appeals, practical upon our decision has no effect imposed. explained, appeals sentence As the court any reduction Jackson's unclassified leaves offense unchanged his E Class concurrent both sentence and controlling. unpublished slip op. Jackson, at
V general pen- sum, In we conclude that the alty for an unclassified under TIS-I is neither nor bifurcation is be added to the years, that recognize We our conclusion of six nine months (81 months) the same term is maximum seeking. However, above, Jackson is explained reasons his methodology arriving figure at that with inconsistent 973.01(2)(c), Volk, history, its legislative v. State 584, 2002 WI 258 Wis. 2d App N.W.2d 24. pursuant to Wis. determine, however, also 939.62. We 973.01(2)(d), appeals' on
court of reliance Wis. Stat. *18 supervision specifying that the extended the statute by imposed term least 25% of the the court at misplaced. imposed, end, was In the of differs from that used our method calculations while by appeals, the of affirm because the difference court we practical on has no effect here in the calculations sentence. Jackson's
By appeals decision of the court of the Court.—The is affirmed. (concurring). agree WILCOX, E J. I 45. JON majority opinion under Truth-in- the
with (TIS I),1 pursuant Sentencing I to Wis. 973.01(2)(c)2 App Volk, 274, 258 and State v. 2002 WI 24, circuit was 2d 654 N.W.2d the court Wis. six-year required en- to bifurcate Jackson's imprison- it hancer and add to felony. Majority op., ¶¶ 3, 20. ment for his unclassified disagree majority's of method However, I with calculating sentence, and therefore cannot Jackson's join opinion. Part As will be demonstrated IV majority's calculating below, method of Jackson's felony ignores plain sentence for his unclassified 973.01(2)(b)&(c). language Furthermore, of Wis. Stat. opinion math- in is the the calculation Part IV the majority equivalent linguistically ematical of what the prohibited III. claims in Part Act See 1997 Wis. are to the 1997-98 All reference the Wisconsin Statutes noted. version unless otherwise As this case involves the interpretation several portions 973.01, the relevant are set provisions forth full bellow. Section 973.01 provides, in pertinent part:
(1) Bifurcated Required. Except pro- Sentence (3), vided in sub. whenever court person sentences a prisons the Wisconsin state for a 31, 1999, committed on or after December impose court shall a bifurcated sentence that consists a term of in prison followed a tеrm of extended under s. 302.113.
(2) Structure of Bifurcated Sentences. The court shall ensure that a bifurcated imposed sentence (1) complies sub. all of following: with
(a) length Total of bifurcated sentence. Except as provided par. (c), the total of the bifurcated *19 may sentence not exceed the maximum term impris- felony. onment the
(b) Imprisonment portion of bifurcated sentences. portion The of the bifurcated imposes sentence that prison in may confinement not be less than one year, subject any to minimum prescribed for sentence felony, and, (c), the except provided par. may in exceed whichever of the following applicable: is any
6. For felony felony specified other than a in 5., 1. to prison may subds. the term of in confinement not exceed 75% of the total the bifurcated sentence.
(c)Penalty enhancement. The maximum term of (b) prison specified par. in may in be confinement by any applicable increased the penalty enhancement. If term specified maximum of confinement in in prison (b) par. is paragraph, increased under this total the imposed that sentence the bifurcated length of by the same amount. increased (d) supervision. The of extended Minimum term the term that follows of extended the than 25% of may not be less prison in confinement imposed prison in the term of confinement length of (b). par. under added). § (emphasis Stat. 973.01
Wis. relying majority opinion, "rule of on the The majority op., lenity," a conclusion that 41, comes to language express directly of this stat- contravenes the majority amount of the maximum calculates The ute. penalty enhanced, unclassified for a confinement 973.01(2)(c) require § erroneously reading that to increases any also in incrеase the term subject imprisonment, then which is the term of percent contained rule 75 § bifurcation 973.01(2)(b)6. Majority op., ¶¶ However, authority proposition majority provides for the no 973.01(2)(c). 973.01(2)(b)6. major- § incorporates § subjects statutory provision ity to no cites 973.01(2)(c) term of confinement enhanced in Wis. Stat. contained limitations 973.01(2)(b) 973.01(2)(b). spe- contrary, Quite any cifically time in confinement increase states that provision enhancement limitations contained to the is not 973.01(2)(b) incorporating than 1.-6. Rather *20 973.01(2)(b) 973.01(2)(c) 973.01(2)(b)6., § § § ex- into penalty plicitly from the limitations enhancers excludes Sections contained therein. time on confinement 973.01(2)(b) 973.01(2)(b)6., together, read when and portion "[t]he that provide: sentence of the bifurcated ; except prison . as imposes in . confinement a term of 136 (c) [the provided par. penalty provi- in enhancement sion], not exceed .... of thе 75% total By percent applying bifurcated sentence." the 75 rule 973.01(2)(b)6. § adding penalty in contained after imprisonment, enhancer to the total term of initial majority effectively phrase "except eradicates the (c)" 973.01(2)(b). § provided par. in from Because this language appears (b), paragraph applies in it to all of paragraph the limits contained in the subdivisions of (b). majority why explain language fails to this is inapplicable limit in to the subdivision 6. majority's interpretation
¶ 48. The error of the is if obvious one looks to the other on time limitations of confinement in the contained subdivisions of 973.01(2)(b). majority argues, If, as the the allowable in increase in confinement subject time contained 973.01(2)(c) is to the confinement limitations § 973.01(2)(b)l.-6., in contained then the en- provision nullity hancer is a for rendered classified example, sentencing For felonies. con- limitation provides "[f]or tained felony, D subdivision a Class prison may the term of 973.01(2)(b)4. years." Similarly, exceed 5 Wis. Stat. "[f]or provides felony, E subdivision 5 a Class prison may years." term of confinement in not exceed 973.01(2)(b)5. any If increase in confine- subject ment time under to the limita- 973.01(2)(b) § 1.-6., tions contained then the term of felony D confinement for a Class could never exceed five years, applied. Likewise, even if a felony, E a Class never could years, exceed two subject even if the initial sentence were person Therefore, to a enhancer. if a say, were convicted of a Class E to, six-year penalty years enhancer, the additional six could *21 Volk, 2d Under 258 Wis.
never to his sentence. attach penalty to the term 584, enhancer cannot added the majority's logic, supervision, and under the of extended subject is to the term of confinement still the increased 973.01(2)(b)5. § two-year limit in purely it the absurd, This is as reads result provision penalty out of the statute. The enhancement by provid- attempts avoid this absurd result statute ing con- term of confinement the limits on the § 973.01(2)(b)l.-6. provided apply "except in as tained in added). 973.01(2)(b) (c)." § (emphasis par. majority's suggestion, majority op., Contrary to the crystal unambiguously language clear is and this limits in the subdivisions indicates that the contained (b) paragraph apply in to increases confine- of do not provision of enhancement ment time under the paragraph (c). majority's reading the The statute vitality ignores language places and the this therefore jeopardy. I under TIS in serious enhancers why majority explain enhance- fails to 973.01(2)(c) subject § provision to the limit ment is 973.01(2)(b)6., § pro- contained in but not limits 973.01(2)(b)l.-5. major- § words, In other scribed why "except provided ity explain phrase does (c)" applies par. but not to to subdivisions 1.-5. only 6. The difference between subdivision 973.01(2)(b)6. 973.01(2)(b)l.-5. is that provisions cap confinement time for classified former number, whereas, the latter felonies at definitive caps provision time for felo- unclassified by providing of confinement cannot nies percentage of the total sentence. None exceed a certain limits contained the subdivisions 973.01(2)(c). 973.01(2)(b) any If reference to contain any in confinement time under increase subject § 973.01(2)(b)6., any to the limit in then increase must also be to the limits in *22 973.01(2)(b) § simply 1.-5. There is no textual basis for distinguishing the limit on confinement time for un- proscribed classified felonies from the limits for classi- subject phrase "except fied felonies; both are to the (c)." provided par. in majority attempts justify 50. The to a distinc- 973.01(2)(c) by misreading §
tion the second sentence of 973.01(2)(b)6. conjunction § provide in with that the only enhanced sentence is bifurcated after thе enhancer Majority op., is added to the ¶¶ initial sentence. 40, 42. 973.01(2)(c) § provides: The second sentence of "If the prison specified maximum term in in of confinement (b) par. paragraph, is increased this the total length imposed of the bifurcated sentence that be added.) (Emphasis is increased the same amount." Notably, provide this sentence does not that the total of an increased sentence is thereafter 973.01(2)(b). § in limitations To read this sentence entirely illogical as such is because, as demonstrated 973.01(2)(b) § expressly above, excludes in increases 973.01(2)(c) § the term of confinement under from the 973.01(2)(b)l.-6. requirements § listed in Also, the first 973.01(2)(c) § provides: sentence of "The maximum (b) prison specified par. may in confinement by any applicable penalty increased enhancement." added.) (Emphasis plain language The of the statute contemplаtes that the enhancer is added after specified paragraph maximum term of (b) 973.01(2)(c) § is calculated. The second sentence of simply provides total term of 973.01(2)(b) subsequently calculated under is in- consequence creased as a mathematical being added to the term 973.01(2)(c). pursuant to the first sentence majority apply "[w]e writes, 51. The 75% 973.01(2)(b)6 after the rule of Wis. Stat. underlying maximum term of enhancer is added to Majority op., ¶ 42. The error of the confinement." majority penalty enhancer cannot be obvious. underlying term of confinement until the added to the However, term of confinement is calculated. underlying term of confine- in order to calculate the place, percent ment in the first the 75 rule of 973.01(2)(b)6. applied. must be majority I can do not understand how penalty enhancer in to the un- add the calculating derlying term of confinement without first *23 underlying the percent term of confinement under the 75 973.01(2)(b)6. in The
rule contained statute requires added itself that the enhancer is after "The the initial of confinement is calculated: term prison specified in maximum term of confinement (b) may by any applicable par. be increased enhance- prison If term ment. the maximum (b) par. paragraph, specified is increased under this length the total of the bifurcated sentence that imposed by the same amount." Wis. Stat. is increased added). majority (emphasis never underlying the term confinement and calculates directly to add the enhancer to the total instead seems majority op., ¶ term of the See 40-42. sentence. majority per- applying ¶ the 75 53. Either the is underlying the cent rule twice—once to calculate again penalty en- of confinement and then after the adding majority simply hancer is added—or the рenalty is the to the total term of calculating term of con- without ever 140 possibility finement. This second is the mathematical equivalent argument majority of Jackson's rejects. supposedly argues Jackson that his years subject enhancer, months, six or 72 to the 75 percent bifurcation rule and added to the total imprisonment. Pet'r br., Therefore, at 8-10. Jackson only percent reasons that 75 of 72 months, or 54 months should be added to his initial 27-month term of produce confinement to a total 81 months of confine- majority rejects Id. ment. at 10. The states that it this argument. Majority op., ¶ 3. majority Yet, reaches the exact same
figure regarding as Jackson his total term of increased Compare majority op., confinement, 81 months. 42 pet'r majority with br., at 12. The reasons that the impris- 72-month enhancer increases the total term of onment to months, 108 which is then bifurcated accord- ing percent to the 75 rule, to reach 81 months Majority op., only confinement. 42. The difference majority's approach between the and Jackson's is that bifurcating up instead of the 72 months front and then adding resulting original 54 months to the major- months of confinement reach months, ity adds 72 months to the total term of initial imprisonment, months, and then bifurcates under percent the 75 rule to reach 81 months. 973.01(2)(b)&(c) majority's reading ¶ 55. The directly position contradicts its earlier that the total amount of confinement to a enhancer is *24 by adding original not calculated the enhancer to the underlying imprisonment. Majority op., term of majority 3. rejects While states that it Jackson's argument that the 72-month enhancer be added should underlying imprisonment, id., to the maximum term of just precisely its mathematical formula does that: months) (72 year Six months) (36 imprisonment term of Underlying + maximum _ (Pursuant 973.01(2)(c)) to Wis. Stat. § months = maximum amount of x 81 months 108 months 75% Majority op., ¶ 42. Following approach in State, of the and plain language statute, I of the
accordance with the a total of 108 should be conclude that Jackson imprisonment, composed confine- of 99 months months supervision. extended When read ment and 9 months 973.01(2)(b)&(c) two-step proce- properly, forth a set calculating affected sentences dure original imprisonment is First, enhancer. pursuant to the limits contained calculated 973.01(2)(b). 973.01(2)(c), "[t]he - Second, under prison specified maximum term (b) by any applicable penalty par. may be increased any applicable penalty Therefore, en- enhancement." of confinement that hancer increases the total amount (b). paragraph was calculated application en- Prior to the imprisonment available for hancer, the total amount of years three or 36 unclassified Jackson's into a sentence is bifurcated months. This supervi- and a term of extended term of confinement 973.01(1). Symbolically, relation- this sion. Wis. Stat. supervision, ship confinement, extended between represented can be the total = = supervision; confinement; "b" extended follows: "a" *25 = imprisonment. to and "c" total term of Pursuant = 973.01(1), § Therefore, "c," "a"+ "c." the total term "b" imprisonment, equals 36 months. 973.01(2)(b)6., § the maximum 58. Under for an unclassified amount confinement percent of total of the sen- not exceed 75 such, maximum term of confine- tence. As Jackson's felony, pre-enhancement, is 75 ment for his unclassified percent remainder, months, of 36 or 27 months. supervision. months, the term of extended nine is repre- pre-enhanced is Therefore, Jackson's sentence 9; and "c"= 27 + 9 27; as follows: "a"= "b"= 36. sented = 36. 973.01(2)(c), § pursuant Next, 59. is added to the maxi-
amount of the (b), specified paragraph mum term of just Jackson's determined to be 27 months. which was Adding years penalty enhancer six or 72 months. 72 is yields period a total of confine- months to 27 months post-enhancement, Therefore, ment of 99 months. a of 99. has value Jackson's term "a^ greater confinement is now than the amount of While percent sentence, discussed of Jackson's total as 75 973.01(2)(b) percent provides supra, the 75 rule that 973.01(2)(b)6. appli- felonies in for unclassified to an increase in the term of confinement cable 973.01(2)(c). pro- The second sentence months, "c," if "a" is increased vides by same "a" + is increased function of "b" = + "c" + 72. Jackson's sentence amount: "a" 72 + "b" = appears or as follows: "a+ "b" structure now "c-l" = pursuant sentence Thus, + second 99 9 973.01(2)(c), months, which is 72 is now 108 "c/ greater precise amount of the "c," than months
increase in confinement between "a" and There- "a^" fore, Jackson's total enhanced sentence should be *26 composed months, of 99 months confinement and nine supervision. months extended agree majority, although I do with the for appeals reasons, different applying that the court of erred in percent the 25 rule contained in Wis. Stat. 973.01(2)(d). 973.01(2)(d) § Majority op., ¶ 36. Section provides: supervision "The term of extended that fol- prison may lows the term of confinement in not be less than 25% of the prison imposed of the term of confinement in (b)." added.) par. (Emphasis under This (c); paragraph simply section has no reference to it provides that when a bifurcated sentence is calculated (b), paragraph supervision under the term of extended percent cannot be less than 25 of the term of confine- paragraph. ment calculated under above, that As noted 973.01(2)(b)&(c) § provide two-step proсedure a calculating sentences with enhancers. Under 973.01(2)(b)6., pursuant the initial calculation Jackson's term of confinement was 27 months and his term of extended nine was months. Twenty-five percent equals of 27 months 6.75 months. supervi- Therefore, Jackson's initial term of extended greater percent sion was than 25 of the initial term of proscription and the contained in 973.01(2)(d) pro- was not violated. As vides enhancer is to the term of added original confinement after the sentence is bifurcated § 973.01(2)(b), percent the 25 rule 973.01(2)(d) apply does to the enhanced sentence. majority approach ¶ 62. The states that this majority op., yet, reasonable, in the interest "lenity," adopt approach ignores it elects to an 973.01(2)(b)&(c) plain language of and contradicts its position that the total amount of confinement earlier penalty enhancer calculated to a is not original underlying adding the enhancer to the imprisonment. reasons, For these while I concur in the join majority opinion, I
mandate of the do not Part IV opinion.