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Court of Appeals on enhancing unclassified felony sentences

State v. Tory J. Agnew, 2019AP1785-CR, District 4, 7/30/20 (not recommended for publication); case activity (including briefs)

The court of appeals affirms the structure of a bifurcated sentence for an unclassified felony to which a sentence enhancer applied, even though the sentence imposed runs afoul of the statutes and prior case law.

As Truth-in-Sentencing begins its third decade of existence, we’ve all become familiar with its basic requirements: Prison sentences are bifurcated, consisting of initial confinement (IC) and extended supervision (ES). § 973.01(2)(intro.). The IC term has to be at least one year and can’t be more than either a specified cap, if it’s a classified felony, or 75% of the total bifurcated sentence, § 973.01(2)(b)(intro.) and 10. The ES term must equal at least 25% of the IC term, § 973.01(2)(d)(intro.).

It’s easy for a court to construct a sentence that complies with these strictures when dealing with unenhanced, classified felonies, given the maximum allowable amounts of IC and ES set out in § 973.01(2)(b) and (d). But complying with the strictures gets more challenging when sentence enhancers apply. It took appellate decisions to confirm that § 973.01(2)(c)1. meant what it said: that enhancer time may be added only to the term of IC, not to ES. State v. Volk, 2002 WI App 274, ¶35, 258 Wis. 2d 584, 654 N.W.2d 24; State v. Jackson, 2004 WI 29, ¶32, 270 Wis. 2d 113, 676 N.W.2d 872. It also took some time to settle the maximum amount of confinement available when imposing a sentence for a misdemeanor enhanced under § 939.62(1)(a), the repeater statute that converts the basic misdemeanor penalty into a two-year maximum sentence. State v. Lasanske, 2014 WI App 26, 353 Wis. 2d 280, 844 N.W.2d 417.

Agnew’s case involves some relatively uncharted Truth-in-Sentencing territory: how to structure a valid bifurcated sentence for an enhanced, unclassified felony. Before the enhancer, Agnew faced a maximum sentence of two years’ imprisonment. (¶12). The basic rules for bifurcated sentences narrow the range of options. The minimum IC term of one year would require at least 3 months of ES (though the court could give up to one year of ES). The maximum IC that could be imposed is 18 months because of the 75% cap on IC, in which case the court would have to impose at least 4.5 months of ES (but could give all of the remaining 6 months). (¶15).

So far, so good; everyone agrees on those basic parameters. (¶19). But Agnew was a repeat offender because of a prior felony, so under § 939.62 he was subject to up to four additional years of imprisonment, making his maximum exposure six years of imprisonment, though it might be less because of the 25% ES rule. (¶18).

Recall that enhancer time may be added only to IC, not to ES. If Agnew’s basic crime was a classified felony, the court could look at the maximum IC listed for the felony in § 973.01(2)(b) and, assuming it wanted to impose enhancer time, would impose an IC term over and above that maximum (keeping in mind, of course, the need for a term of ES equal to at least 25% of IC).

But without a statutorily determined maximum IC for Agnew’s felony, how is a court that wants to impose enhancer time supposed to calculate the sentence? The circuit court gave Agnew four years, three years of IC and one year of ES. (¶5). That comports with the basic rules—at least one year of IC, with the IC not exceeding 75% of the sentence and the ES equaling at least 25% of the IC. Looks legit, right?

Not so fast, argues Agnew. Relying on State v. Kleven, 2005 WI App 66, 280 Wis. 2d 468,  696 N.W.2d 226, he argues that (as noted above) the maximum IC for his basic offense is 18 months, which means only 6 months of ES is left over. That in turn limits the amount of enhancer time that can be imposed because of the 25% rule. With only 6 months of ES, the longest IC term available is 24 months, for a maximum sentence of 30 months—not the four years that was imposed. Cf. Kleven , 280 Wis. 2d 468, ¶¶24-27. And, citing a footnote in Kleven that says a court imposing a sentence over the maximum using available enhancer time must be “deemed” to have imposed the maximum available IC time in order to enhance the sentence, he argues that by imposing enhancer time the sentencing court here must be deemed to have imposed 18 months IC and therefore could only enhance it to 24 months. (¶¶21-23, citing Kleven, 280 Wis. 2d 468, ¶26 n.6).

The court of appeals concludes that neither Kleven nor the statutes delimit the IC and ES of his basic offense in the way Angew claims. (¶¶28-37). Instead, because it was perfectly legitimate for the sentencing court to have imposed a one-year IC and one-year ES sentence without the enhancer, the court could simply add the two years of enhancer time to the one year of IC and get the sentence it did here. Indeed, the court says, to hold otherwise would read the statutory basis for this non-enhanced sentence out of existence. (¶30).

It’s certainly true there’s no statute like § 973.01(2)(b) and (d) setting out the basic maximum IC and ES for an unclassified felony. But the statutory scheme as a whole makes knowing those numbers crucial for a court imposing an enhanced sentence because, as Volk and Jackson make clear, the enhancer time cannot be bifurcated; it can be added only to IC time. Logically, one would think, unless a court exceeds the basic maximum available IC, it will not (and, again, cannot) use enhancer time at all.

Indeed, that is implicit in Kleven‘s statement that an enhanced sentence must be “deemed” to have included the imposition of the maximum basic IC for the offense and in Kleven‘s long discussion about how the sentence in that case could be structured. 280 Wis. 2d 468, ¶¶20-28. While Kleven doesn’t say so, its approach follows from a case the court in this case “pause[s] to mention” (¶27) but doesn’t dig into—State v. Harris, 119 Wis. 2d 612, 350 N.W.2d 633 (1984). Harris holds that, for a penalty enhancer to be lawfully imposed, the court must impose a sentence greater than the basic penalty for the offense. Thus, a court should not impose less than the maximum, and then add some “enhancer” time on top of that number that still doesn’t yield a sentence in excess of the basic maximum penalty. Instead, it should come up with a number, and if the number exceeds the basic maximum, it has used the enhancer. Id. at 618-20.

Harris was decided long before Truth-in-Sentencing and involved indeterminate sentences, but the supreme court has neither reversed nor limited its holding in light of Truth-in-Sentencing. Thus, it must apply to bifurcated sentences, too, and there’s a simple way to do so. Because enhancer time may now only be added to IC, Harris means that, for a penalty enhancer to be lawfully imposed on a bifurcated sentence, the court must impose more than the basic maximum IC for the offense. Certainly, Harris can’t mean an enhancer is lawfully imposed only if the total bifurcated sentence exceeds the basic maximum penalty, because that will mean there are bifurcated sentences that use enhancer time in violation of Harris. See, e.g., State v. Miller, No. 2013AP221 (WI App. June 5, 2014) (unpublished).

Applying Harris’s holding to IC means a court wanting to impose enhancer time on an unclassified felony has to start by calculating the basic maximum available IC, subtract that from the basic maximum sentence to come up with the leftover maximum available ES, and then calculate the maximum IC available with the addition of the enhancers. Cf. Kleven, 280 Wis. 2d 468, ¶¶18 n.4, 22. That accomplished, the court may then construct a sentence that complies with the basic bifurcated sentence requirements, which might limit how much enhancer time can be added. Id., ¶¶23-28. Applying Harris—and Kleven itself—shows Agnew was right.

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