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Defendant must file a separate § 973.195 sentence adjustment petition for each sentence to be adjusted

State v. Jeffery Polar, Jr., 2014 WI App 15; case activity

The court of appeals holds that the plain language of § 973.195(1r)(a) requires a defendant serving multiple sentences to file a separate sentence adjustment petition for each individual sentence the defendant is seeking to adjust.

Polar’s governing sentences consisted of two consecutive terms, one with 7 years of confinement, the second for 3 years of confinement. (¶3). He filed two sentence adjust petitions after serving 85% of the total 10-year term of confinement. (¶4). (Both sentences were imposed in Class C felonies, and § 973.195(1g) requires the defendant serve 85% before filing a petition.) The circuit court denied the petitions as too late for the 7-year term of confinement and too early for the 3-year term; however, the court did give Polar the cold comfort of resubmitting a petition on the second sentence once he’d served 85% of the 3-year term. (¶¶5-6). The court of appeals affirms:

¶12      …. The statute very clearly states that “[i]f an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this subsection.” See Wis. Stat. § 973.195(1r). There is no alternative interpretation; multiple sentences are to be considered separately for the purpose of sentence adjustment. Additionally, § 973.195(1g) provides that the time an inmate must serve in prison before filing for an adjustment differs depending on the severity of the felony. Were we to contradict the very plain mandate of subsection (1r), the language of subsection (1g) would be completely eviscerated. The statute is plain, and the trial court correctly followed the plain language in concluding that Polar’s sentences were to be considered separately for adjustment purposes.

¶13      Moreover, there is no inconsistency in computing multiple sentences as a single sentence, as is mandated by chapter 302 of the Wisconsin Statutes, and requiring an inmate to file separate petitions for sentence adjustment. Treating all sentences as one as required by Wis. Stat. §§ 302.11(3) [sic] and 302.113(4)… simply means that a defendant must serve all of his or her initial confinement at once, and must then serve all of the extended supervision at once. Even given this system, there is nothing inherently illogical about requiring an inmate to file separate petitions for sentence adjustment….

A brief concurrence notes there’s nothing in the record showing whether Polar was advised of the date on which a petition could be filed on his sentences, or whether DOC “routinely” advises inmates of those dates. “Without evidence of the existence or absence of such sentence specific information, it is impossible for this court, or the circuit court, to conclude that § 973.195(1r)(a) is ambiguous as applied to these separate consecutive sentences or that an error of law occurred.” (¶16). This suggests that if DOC had advised Polar to wait to file till he’d served 85% of the total 10-year term, the court may have come to a different conclusion, at least as to his petitions.

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