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Enhancer — TIS-I

State v. Kent Kleven, 2005 WI App 66
For Kleven: Roberta A. Heckes

Issue/Holding: Where sentencing includes multiple enhancers, the court may identify the amount of confinement attributable to each enhancer, without violating the rule that an enhancer doesn’t support a separate sentence. ¶¶16-18. (The court adds, however, ¶18 n. 4, that the “better practice” is to avoid “allocating any portions of the confinement imposed among the base offense and enhancers.”)

Issue/Holding: Maximum confinement for TIS-I attempt to commit a classified felony is one-half the maximum confinement for the completed crime, ¶21, and the sentencing court’s error in exceeding the permissible maximum requires resentencing (given, at least, the availability of the same result), ¶¶28-31. (That is, with the enhancers at the court’s disposal, the court could properly impose the same amount of confinement time as it did originally.)

Issue: How is sentencing structure determined for an unclassified, enhanced TIS-I felony?
Holding: In order to reconcile various conflicting possibilities, the maximum sentence on an enhanced, unclassified TIS-I felony is limited by the rule that the maximum amount of ES is 25% of the base offense. ¶¶26-27.

Best to plug in the numbers to illustrate. Kleven faced five years on attempt, which meant a max confinement of 2.5 years, ¶21. He also faced a total of 10 more years on enhancers, which are allocated only to confinement, not supervision, ¶24. That makes a theoretical total of 12.5 years confinement on an overall max of 15. However, confinement can’t exceed 75% of overall max, so that would be 15 x 75% = 11.25 years confinement max (¶23). So far, so good, but now another rule kicks in: ES must be at least 25% of confinement, § 973.01(2)(d), and that rule couldn’t be satisfied in this instance for any confinement over 10 years, ¶26. (Because, of course, after that point ES would necessarily be less than 25% of confinement, given that this ES max is 2.5.) Something’s got to give, and apparently reducing the overall max is the path of least resistance: add up the potential confinement time (here, as noted, 11.25); and then add to that the base offense ES max (2.5)—voila: “We thus conclude that the maximum sentence Kleven faced for his enhanced offense was 13.75 years of imprisonment, with not more than 11.25 years’ confinement and not more than 2.5 years of extended supervision,” ¶28. Ah, closer … but still in violation of the 25% rule; close enough, apparently. As long as you’re purporting to apply a rule of lenity, why not put teeth in the 25% rule and reduce the confinement max to 10 years?

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