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Enhancer time may be added to extended supervision portion of bifurcated sentence for misdemeanor enhanced under § 939.62

State v. Shawn J. Robinson, 2012AP2498-CR, District 1, 7/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

Robinson was convicted of  two misdemeanors which were enhanced under the repeater statute, § 939.62(1)(a). He was sentenced on each count to bifurcated sentences consisting of one year of confinement and one year of extended supervision. (¶¶2-4). He later challenged the sentences under State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App. Nov. 3, 2009) (unpublished). (¶5). The circuit court declined the apply Gerondale, and the court of appeals now affirms.

Gerondale premised its analysis on State v. Volk, 2002 WI App 274, ¶¶35-36, 258 Wis. 2d 584, 654 N.W.2d 24, which held that under the unambiguous language of § 973.01(2)(c), penalty enhancers apply only to the confinement portion of a bifurcated sentence, not to the supervision portion. This rule seems impossible to apply to enhanced misdemeanors because, unlike classified felonies, misdemeanors are not ordinarily bifurcated, and in order to enhance a basic misdemeanor sentence to a bifurcated sentence some of the enhanced time must necessarily be used to create a supervision period. Because the statutory provisions appear to conflict by allowing enhancement of the basic misdemeanor sentence to a bifurcated sentence while prohibiting the use of enhancer time to create a necessary component of the sentence, Gerondale, slip op. at ¶¶6-11, held that a misdemeanor prison sentence based on a penalty enhancer may be bifurcated no more and no less than necessary to comply with the minimum 25% extended supervision requirement of the statute.

The court of appeals judge deciding this case finds no conflict in the statutory provisions. First, the court notes that the legislation requiring bifurcation of prison sentences for enhanced misdemeanors was enacted after Volk, and that same legislation amended § 973.01 to provide that misdemeanor sentences are governed by the rule that confinement not exceed 75% of the total sentence:

¶10     …. Thus, § 973.01 requires bifurcation of enhanced misdemeanors and necessarily requires that some portion of the penalty enhancer apply to extended supervision. In essence, the statute creates a 75-25 rule, which states that the term of confinement “may not exceed 75% of the total length of the bifurcated sentence,” while the term of extended supervision “may not be less than 25% of the length of the term of confinement.” Wis. Stat. §§ 973.01(2)(b)10. & (2)(d).

The court goes on to conclude that in light of both the amendments to § 973.01 and Gerondale‘s status as an unpublished, nonbinding decision, neither Gerondale nor Volk apply to Robinson’s case:

¶12      We note first that our analysis in Volk focused on felony sentence bifurcation. Volk did not involve a misdemeanor sentence and was decided before the law changed requiring sentencing courts to bifurcate enhanced misdemeanor sentences. Volk, therefore, has no bearing on this case. As such, our analysis in Gerondale, in which we compared Volk with Wis. Stat. § 973.01, also does not apply. Moreover, because Gerondale is an unpublished opinion of this court, the trial court did not erroneously exercise its discretion when it chose not to apply Gerondale’s rationale. Rather, the trial court appropriately concluded that its sentence complies with § 973.01—Robinson’s term of confinement does not exceed 75% of his sentence and his term of extended supervision is not less than 25% of the length of his confinement. The trial court’s sentence complies with the statute.

For more discussion and critique of Gerondale and State v. Lavon Ash, 2012AP381-CR (Wis. Ct. App. 2012) (unpublished), a subsequent case that did apply Gerondale, see here. Though these are all unpublished decisions that are persuasive, not mandatory, authority, this case creates a conflict within the court of appeals on the proper bifurcation of enhanced misdemeanor sentences. That certainly heightens the chances for supreme court review, if a petition happens to be filed.

Also, note that Robinson first raised his Gerondale claim in a sentence modification motion, and after that was denied he filed a § 974.06 motion renewing his Gerondale claim and raising new claims about the ineffectiveness of trial counsel. (¶¶5-6). The court finds the ineffective claims barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), because they weren’t raised in his first motion. (¶¶13-15).

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