In a decision that may finally settle the issue of how to bifurcate enhanced misdemeanor sentences, the court of appeals holds that § 973.01(2)(c)1.’s prohibition against using an enhancer to increase a period of extended supervision does not apply to enhanced misdemeanor sentences. Instead, enhanced misdemeanor sentences are subject to the basic rules that the confinement portion of a bifurcated sentence may not exceed 75% of the total sentence, § 973.01(2)(b)10., and that the term of extended supervision must equal at least 25% of the length of the confinement portion, § 973.01(2)(d).
The issue of how to bifurcate enhanced misdemeanors needs settling, of course, because of the different approaches taken in a series of one-judge, unpublished decisions that started with State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App. Nov. 3, 2009) (unpublished). Gerondale concluded § 973.01 created conflicting mandates regarding enhanced misdemeanors. Specifically, a bifurcated sentence must include a period of confinement and a period of extended supervision (ES), § 973.01(2)(intro.); because misdemeanors are not ordinarily bifurcated, imposing a bifurcated sentence for an enhanced misdemeanor means some of the enhanced time is used for ES. But that violates the rule that enhancers are added only to the confinement portion of a bifurcated sentence, § 973.01(2)(c)1.
Gerondale resolved the conflict by holding that an enhanced misdemeanor sentence may be bifurcated only to the extent necessary to comply with the minimum 25% extended supervision requirement of § 973.01(2)(d). That meant sentences like 12 months of confinement and 12 months of supervision, or 18 months of confinement and 6 months of supervision, were unlawful. Gerondale‘s logic also made it impossible to impose the maximum two year enhanced misdemeanor sentence. Two subsequent decisions agreed with Gerondale about § 973.01’s inconsistencies; three other decisions rejected Gerondale. (A quick summary of the cases, with links to the decisions and our posts about them, is here.)
The three-judge panel in this case concludes there are no conflicting mandates in § 973.01. The court observes that felonies and misdemeanors are different and are treated differently by § 973.01. Felonies carry a prison sentence, so they are always subject to bifurcation (¶8 n.5, citing § 939.60), and § 973.01(2)(b)1. to 9. lists the maximum term of confinement in prison for each classified felony before any penalty enhancer is applied. If enhancer time is available, § 973.01(2)(c)1. provides that time may be added only to the confinement portion of the sentence, which for classified felonies is the amount listed in § 973.01(2)(b)1. to 9. When enhancing a felony sentence, then, a sentencing judge’s first step is determining the period of confinement in prison already specified in § 973.01(2)(b)1. to 9.; it then adds the enhancement time. (¶¶6-7).
Misdemeanors are different. They aren’t normally bifurcated, so they don’t have a ready-made period of prison confinement to start from. Thus, the first step a judge would take for a felony is “impossible” for a misdemeanor. (¶8). For misdemeanors, it is the enhancer itself that allows the imposition of a bifurcated sentence: “absent inclusion of the enhancer at the outset, there would be no term of imprisonment in the Wisconsin state prisons to bifurcate into terms of confinement in prison and extended supervision.” (¶8). Therefore, in misdemeanor cases, “a penalty enhancer performs an additional function beyond just adding time” and a different procedure applies:
¶11 …. Whereas for a felony, an enhancement lengthens the otherwise applicable “maximum term of confinement in prison,” for a misdemeanor, an enhancement transforms the misdemeanor sentence into a sentence to the state prisons, which then must be bifurcated. Because no “maximum term of confinement in prison” exists for a misdemeanor until the enhancement is applied, once it [the enhancement] is applied, it cannot be applied again. Wis. Stat. § 973.01(2)(c)1. is not applicable to misdemeanors.
Because § 973.01(2)(c)1. doesn’t apply to misdemeanors, the conflict identified by Gerondale disappears, and the procedure for bifurcating an enhanced misdemeanor simply involves applying the rules for crimes that are not classified felonies:
¶9 Determining the bifurcated structure of a misdemeanor begins under Wis. Stat. § 973.01(2)(a) with the applicable maximum term of imprisonment for the misdemeanor, plus additional imprisonment authorized by any applicable penalty enhancement statute. The confinement portion “may not exceed 75% of the total length of the bifurcated sentence.” Sec. 973.01(2)(b)10. The extended supervision portion “may not be less than 25% of the length of the term of confinement in prison imposed under par. (b).” Sec. 973.01[(2)](d). We know that we must add the enhancer at the outset and not under para. (c) as with felonies because para. (c) refers to “confinement in prison,” and misdemeanors do not become punishable by prison until after the enhancer is added. We say again, absent the inclusion of the penalty enhancer at the outset under para. (a), there is no bifurcated sentence from which to arrive at a maximum term of confinement in prison under subd. (b)10. Thus, subd. (2)(c)1. is inapplicable to misdemeanor cases: any attempt to apply para. (2)(c) to a misdemeanor bifurcated sentence would be to apply the penalty enhancer twice.
Assuming this decision is published, it will be controlling authority and foreclose arguments based on Gerondale. Whether it is the last word on the matter will depend on whether the supreme court grants review in this case (or some other case in the pipeline). If that happens, rest assured On Point will let you know.