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Inmates serving bifurcated sentence for a misdemeanor may petition for sentence adjustment

State v. Jamie R. Anderson, 2015 WI App 92; case activity (including briefs)

Answering a question lingering since the Truth-in-Sentencing revisions that took effect in 2003 (TIS-II), the court of appeals holds that a person serving a bifurcated prison sentence for a misdemeanor enhanced under the repeater statute, § 939.62(1)(a), is eligible to petition for a sentence adjustment under § 973.195 after serving 75% of the confinement portion of the sentence.

Under § 973.195 a person serving a bifurcated prison sentence imposed under § 973.01 can apply for a sentence adjustment after serving “at least the applicable percentage of the term of confinement in prison portion of the sentence.” § 973.195(1r)(a). The issue in this case arises because the “applicable percentage” is defined only for felony offenses (85% for Class C to E felonies, 75% for Class F to I felonies). § 973.195(1g). Does the fact that § 973.195 defines “applicable percentage” only for felony classifications mean that inmates serving a bifurcated prison sentence for an enhanced misdemeanor are ineligible for sentence adjustments under § 973.195? No, answers the court of appeals.

Relying on State v. Tucker, 2005 WI 46, 279 Wis. 2d 697, 694 N.W.2d 926, the court first rejects the state’s claim that § 973.195 unambiguously excludes enhanced misdemeanor sentences. (¶¶16-26). Tucker had been sentenced under the first version of the Truth-in-Sentencing law (TIS-I), which had felony classifications different from those created in TIS-II. Because the “applicable percentages” in § 973.195 are defined in terms of the TIS-II felony classifications, the state claimed the statute clearly didn’t apply to Tucker’s TIS-I sentence. The supreme court disagreed, and held the statute was ambiguous. 279 Wis. 2d 697, ¶¶14-17.

Inmates like Anderson are in the same position as inmates like Tucker: “Inmates serving enhanced misdemeanor prison terms meet the sentence-imposed-under-§ 973.01 requirement, thereby indicating eligibility, but the ‘applicable percentage’ provision is silent as to the percentage of prison time such inmates must first serve before petitioning for sentence adjustment.” (¶21). Accordingly, as in Tucker, there is ambiguity as to whether persons serving enhanced misdemeanor prison terms can satisfy the “applicable percentage” requirement.

In arguing the statute was clear on its face, the state claimed it would lead to absurd results to allow a misdemeanant sentenced to prison to get early release under § 973.195 while denying that opportunity to a misdemeanant sentenced only to jail. The state supported this argument with a hypothetical comparing one person who gets an enhanced sentence of 12 months of confinement to another who received 9 months in jail. (¶25). The court says this argument ignores substantial differences in the treatment of those misdemeanants:

¶26     …. For example, the hypothetical treats as insignificant the fact that the repeater must fully serve nine months [75% of 12 months] before even starting the sentence adjustment process by filing a petition. Moreover, after release, the repeater would be subject to supervision and possible revocation, whereas the non-repeater would simply be released. And, another fact ignored by the State is that the non-repeater, as a jail inmate, is eligible for early release [“good time”] under Wis. Stat. § 302.43, which could reduce the non-repeater’s nine-month jail term by one-fourth. ….

This hypothetical comes into play in the next step of the court’s analysis, which is how to interpret the ambiguous statute. The court concludes the statute should be construed to allow persons serving enhanced misdemeanor prison sentences to petition for sentence adjustment:

¶29     We begin with a strong indication of the legislature’s intent—a comparison of enhanced misdemeanants sentenced to prison with felons sentenced to prison. Unlike the State’s hypothetical, comparing a repeat misdemeanant sent to prison with a non-repeat misdemeanant sent to jail, the two categories we discuss here are subject to all or mostly all the same restrictions and benefits. For example, both enhanced misdemeanants sentenced to prison and felons sentenced to prison face the possible extension of confinement for poor prison conduct. See Wis. Stat. §§ 973.01(4) and 302.113(3). Both face supervision and possible revocation upon release. See §§ 973.01(2) and 302.113(9)(am). Neither are eligible for a “good time” reduction. See § 973.01(4).

¶30   Moreover, while the differences we discuss in ¶26 show why it is reasonable to authorize sentence adjustment for enhanced misdemeanants sentenced to prison, but not misdemeanants sentenced to jail, the similarities we describe in ¶29 show why it makes sense to treat enhanced misdemeanants and felons sentenced to prison the same when it comes to sentence adjustment. This proposition becomes even clearer when looking at an example of similarly sentenced inmates in these two categories. Suppose an enhanced misdemeanant and a felon both receive a total two-year sentence comprised of eighteen months of confinement and six months of extended supervision. Although both receive the same sentence, we know that the legislature considers the felon to have committed the more serious offense because even Class I felonies, the least serious class of felonies, carry with them higher maximum penalties than a repeater enhanced Class A misdemeanor. Under the State’s view, only the more serious offender, the felon, is eligible for sentence adjustment, even though both defendants received the same sentence. This makes no sense. To the contrary, the most sensible proposition is that the legislature intended to afford the enhanced misdemeanant the same opportunity for sentence reduction as the felon.

For those who care to delve into the details, the court provides additional analysis of the state’s legislative intent argument. (¶¶32-41).

Also, note two important situations in which § 973.195 won’t apply to enhanced misdemeanor cases: First, not every enhanced misdemeanant has to get a bifurcated prison sentence; a court could instead impose a jail sentence (12 months or less); in a case like that, § 973.195 doesn’t come into play because it only applies to inmates serving bifurcated sentences under § 973.01. (¶¶9-10). Second, for the same reason, § 973.195 won’t apply to a person serving a misdemeanor sentence of 12 months or less in prison under § 973.03(2) because the sentence is concurrent with or consecutive to another prison sentence. (¶¶11-12).

Finally, if you’re wondering why a misdemeanant can petition after serving 75% of the confinement term instead of the other “applicable percentage” (85%), it’s because the parties apparently didn’t dispute that point. And what’s to dispute? Enhanced misdemeanants face two-year prison terms, making them similarly situated to Class I felons, who can petition after serving 75%. (¶43).

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