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Mandatory minimum for OWI trumps SAP early release requirement

State v. Jack B. Gramza, 2020AP100-CR, District 1, 11/10/20 (recommended for publication); case activity (including briefs)

If an inmate serving the initial confinement (IC) portion of a bifurcated sentence completes the Substance Abuse Program (SAP), § 302.05(3)(c)2. mandates that the sentencing court “shall” modify the inmate’s sentence by converting the remaining period of IC to extended supervision (ES) so that the inmate is released from confinement to ES. The court of appeals holds this mandate doesn’t apply to an inmate who is serving a mandatory minimum term of IC for an OWI offense if the inmate hasn’t yet served the mandatory minimum term.

Gramza was convicted of OWI, 7th offense, and was sentenced to 3 years of IC, as required by § 346.65(2)(am)6. The circuit court made him eligible for SAP, which he completed about 6 months after being sentenced. As it is required to do under § 302.05(3)(c)1., the Department of Corrections informed the circuit court that Gramza had completed SAP and asked the court to convert his remaining IC into ES so he would be released. (¶¶5-8).

The circuit court balked, questioning its authority to modify the sentence given the mandatory minimum term of IC. In response to the court’s request for legal argument, DOC asserted that § 346.65(2)(am)6. only requires that the court impose 3 years of IC—which the court did—not that Gramza serve 3 years. The state, for its part, pointed out that the SAP statute gives the court discretion to make a defendant eligible for SAP eligibility, but it doesn’t give the court discretion regarding modification of the sentence once the defendant completes SAP. And Gramza argued that denying the modification would violate double jeopardy by taking away his legitimate expectation of finality in getting the sentence modification if he completed SAP. The circuit court wasn’t persuaded by this united front, concluding Gramza had to serve the 3-year minimum mandatory IC regardless of his completion of SAP. (¶¶9-13).

The court of appeals says the circuit court was right. It relies on State v. Williams, 2014 WI 64, 355 Wis. 2d 581, 852 N.W.2d 467, which addressed the first (ambiguous) version of the statutes purporting to require mandatory minimum sentences for repeat OWI offenses:

¶21     In Williams, the issue was whether the statute in question required asentencing court to impose a bifurcated sentence.³ Id., ¶3. The court found the earlier version of the statute to be ambiguous on this issue, and turned to the legislative history of the statute for guidance in its interpretation. Id., ¶19. As relevant here, the court noted the “general trend” of the legislature toward mandating “harsher mandatory minimum sentences” by “increasing penalties depending on the number of OWIs the offender has committed[.]” Id., ¶30. Furthermore, the court quoted the Legislative Reference Bureau’s analysis of the amendment that increased the minimum term of initial confinement for a conviction under this statute: “[t]he substitute amendment requires a person who commits a seventh, eighth, or ninth OWI-related offense to serve a minimum period of confinement [of] three years in prison under a bifurcated sentence[.]” Id., ¶40 (emphasis added; footnote omitted).

¶22     This analysis by the Williams court is effectively fatal to Gramza’s argument that the OWI-7th statute should be interpreted as mandating only that a three year term of initial confinement be imposed, without requiring that this term be fully served. In conducting statutory interpretation, we must construe a statute “reasonably, to avoid absurd or unreasonable results.” See [State ex rel.] Kalal [v. Circuit Court for Dane County, 2004 WI 58], 271 Wis. 2d 633, ¶46[, 681 N.W.2d 110]. To adopt the interpretation argued by Gramza would ignore the legislative history of the statute described in Williams; namely, the intent of the legislature to increase the penalties for multiple OWI convictions by mandating a minimum term of initial confinement that must be served. See id., 355 Wis. 2d 581, ¶¶30, 40. Such an interpretation would lead to the unreasonable result of allowing the mandatory minimum sentence for an OWI-7th conviction to be circumvented, directly contradicting the intent of the legislature. See Kalal, 271 Wis. 2d 633, ¶46.


³ While this court’s decision in State v. Williams was being reviewed by our supreme court, the legislature amended the OWI-7th statute to include language clarifying the requirement that a bifurcated sentence must be imposed in those cases. See id., 2014 WI 64, ¶¶56-58, 355 Wis. 2d 581, 852 N.W.2d 467 (Abrahamson, C.J., concurring).

“Ignore the legislative history of the statute”? The court of appeals didn’t read Kalal closely enough. That’s exactly what a court must do when the language of the statute is clear:

It is, of course, a solemn obligation of the judiciary to faithfully give effect to the laws enacted by the legislature, and to do so requires a determination of statutory meaning. Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature’s intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.

Kalal, 271 Wis. 2d 633, ¶44 (emphasis added). The court of appeals’ reasoning rests heavily on an LRB analysis cited in Williams of a revised version of a proposal as it made its way through the legislative process, and from this extrinsic source the court concludes the legislature must have meant “serve” when it wrote “impose.” A summary or paraphrase of what a proposal does by a legislative drafting attorney may express the intent of one or more legislators, but it is emphatically not the enacted law.

Moreover, resort to legislative history was appropriate in Williams, where the statutory language made it unclear whether the legislature even meant to create a minimum mandatory. But the issue here is different, and the court’s quick and uncritical recourse to legislative history is unjustified under well-established rules about how to read statutory language, which is always where statutory interpretation begins.

Start with the rule that statutes must be read to avoid conflicts. State v. Delaney, 2003 WI 9, ¶13, 259 Wis. 2d 77, 658 N.W.2d 416. Any apparent conflict between the minimum mandatory and the SAP modification command, both of which are stated unambiguously, is avoided by recognizing that SAP’s modification mandate already existed when the minimum mandatory was enacted. The legislature is presumed to know the law when it enacts legislation, State v. Lalicata, 2012 WI App 138, ¶15, 345 Wis. 2d 342, 824 N.W.2d 921, and so would know that, absent an express exception, SAP would apply to minimum mandatory sentences, too. Add to that the fact that (as DOC pointed out) “impose” is a different word than “serve” and that the legislature is presumed to choose its words carefully and with precision to express its meaning, Johnson v. City of Edgerton, 207 Wis. 2d 343, 351, 558 N.W.2d 653 (Ct. App. 1996), and you have a reading that gives effect to both the minimum mandatory and the SAP modification mandate.

These facts and rules show it is reasonable for the legislature to have decided that when an inmate successfully completes SAP, the minimum mandatory IC, having been imposed, doesn’t have to be served in full. If the legislature didn’t think that should happen, it would have said so by creating an exception to the SAP modification mandate. Thus, instead of harmonizing the mandatory minimum and the SAP sentence modification mandate, the court of appeals elevates one of the statutes—the minimum mandatory—over the other—SAP. And it does so based on extrinsic legislative history, to boot. Judges don’t get to make that kind of policy decision; they have the “solemn obligation … to faithfully give effect to the laws enacted by the legislature” and defer to the legislature’s policy choices.

Gramza also argued it violates double jeopardy to deny him early release. A defendant may have a legitimate expectation of finality in a sentence after he’s been already been serving it for several months, State v. Jones, 2002 WI App 208, 257 Wis. 2d 163, 650 N.W.2d 844; State v. Willett, 2000 WI App 212, 238 Wis. 2d 621, 618 N.W.2d 881; here, the expectation of finality included the statutorily required modification of sentence upon completion of SAP. The court disagrees:

¶28     …. The record indicates that the trial court very clearly explained at Gramza’s sentencing hearing that it was required to impose a three year mandatory minimum term of initial confinement for his OWI-7th conviction. In fact, the court made several comments relating to this mandatory minimum term, including a remark that even considering Gramza’s age at that time—fifty-seven years old—he would still have “plenty of life left” after serving the term of initial confinement. Thus, Gramza’s assertion that he had a legitimate expectation of serving less than the three year term is not supported by the record.

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{ 1 comment… add one }
  • John T. Wasielewski November 11, 2020, 11:09 am

    I cringe when I see any decision that rests on “legislative history.” I think Justice Scalia best expressed my view:
    “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.”
    Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, concurring).

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