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Once again, court of appeals holds enhancer time may be used for extended supervision portion of an enhanced misdemeanor sentence

State v. Torrey L. Smith-Iwer, 2013AP1426-CR, District 1, 12/27/13; court of appeals decision (1-judge; ineligible for publication); case activity

Smith-Iwer was convicted of four misdemeanors as a repeat offender under § 939.62(1)(a) and given four consecutive two-year sentences, each consisting of one year of confinement and one year of extended supervision. He moved for postconviction relief, arguing the sentences were illegal under State v. Volk, 2002 WI App 274, 36, ¶36, 258 Wis. 2d 584, 654 N.W.2d 24, which holds that the unambiguous language of § 973.01(2)(c) prohibits using enhancer time to increase the extended supervision portion of a bifurcated sentence. After the trial court denied his motion he appealed, reiterating his Volk claim and arguing that under State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App. Nov. 3, 2009) (unpublished), the one-year term of confinement meant he could be given only three months of ES.

For the same reasons it gave in State v. Groce, 2013AP844-CR (Wis. Ct. App. Sept. 4, 2013) (unpublished), the court here concludes that the sentence is not illegal under Volk because that case applied to felonies (¶12), §973.01 has changed since then to allow for bifurcation of misdemeanors (¶¶11-12), and the new version of the statute “[i]n essence … creates a ‘75/25’ rule, which states that the maximum ‘term of confinement in prison 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 in prison.’” (¶13). Because Smith-Iwer’s sentences are in accord with this “75/25” rule, they are not illegal. (¶14).

Our prior posts have spilled a lot of virtual ink on this issue already, so we’ll spare you another explanation of the basic problem with bifurcating enhanced misdemeanors. If you need a refresher, see here for Gerondale and State v. Ash, 2012AP381-CR (Wis. Ct. App. Aug. 15, 2012) (unpublished), which adopted Gerondale; see here for Groce and here for State v. Robinson, 2012AP2498-CR (Wis. Ct. App. July 23, 2013) (unpublished), both of which–like the judge in this case–rejected Gerondale; and, lastly, see here for State v. Griffin, 2012AP2361-CR (Wis. Ct. App. July 30, 2013) (unpublished), which agreed with Gerondale that § 973.01 is internally inconsistent when it comes to bifurcating misdemeanors, but then came up with a very different solution to the problem.

A couple of observations about this case, however. First, you may not need to keep track of the welter of unpublished, nonbinding opinions for long. Prior posts have noted that the conflicts in § 973.01 cry out for a legislative fix, and though there appears to be no such fix in the offing we may soon get a precedential decision on the issue. District 2 has ordered a case involving this issue to be decided by a three judge panel (thus making the opinion eligible for publication) and the case is now under submission. State v. Lee Thomas Lasanske, 2012AP2016-CR (case activity here). Stay tuned to this site for updates.

UPDATE (2/26/14): Lasanske has now been decided; it adopts the approach taken in Groce and this case, and invokes reasoning similar to the discussion in this post, below. Our post on Lasanske is here.

Second, about the applicability of Volk and the changes made to the statute by TIS-II, after Volk was decided. The court’s reasoning is a bit cryptic, but its point might be this: Under TIS-I, all the classified felonies had a specified maximum term of years of confinement. For unclassified felonies, the max was 75% of the total bifurcated sentence. When TIS-II made misdemeanor repeaters subject to bifurcation, it set maximum confinement terms for the various old and new felony classes and provided for the 75% cap on the term of confinement to apply to the bifurcated sentence for any crime that is not a classified felony. See § 973.01(2)(b). For every classified felony, then, § 973.01(2)(b) sets a maximum term of confinement under a bifurcated sentence, and the language from § 973.01(2)(c) that Volk dealt with is easily applicable to adding enhancer time to that specified term of confinement.

For misdemeanors, though, there is no set maximum term of confinement under § 973.01(2)(b) because a misdemeanor is not bifurcated unless it is enhanced. Because the enhancer time is what made the misdemeanor offense subject § 973.01 to begin with, the enhancer time is in a sense “used up” to make the crime eligible for bifurcation; thus, the enhancer time is not available to be added in again under § 973.01(2)(c), and the sentence is subject only to the 75% rule under § 973.01(2)(b)10. and the 25% rule under § 973.01(2)(d). And, if the rule about adding enhancer time only to confinement under § 973.01(2)(c) doesn’t apply, then Volk doesn’t apply–not because Volk involved a felony, but because it interpreted a statute that doesn’t apply to enhanced misdemeanors.

Of course, if this is the court’s line of thinking, it is still unsatisfactory. Besides being metaphysical, the fact is that enhancer time is still being used as extended supervision, and § 973.01(2)(c) on its face prohibits the application of enhancer time to ES. Note, too, this line of thinking is not the same as saying, as does Robinson, ¶12, that there is some significance in the fact that misdemeanors are enhanced to a new maximum term, § 939.62(1)(a), while felonies are enhanced by a set number of years, § 939.62(1)(b) and (c). That language difference long predates TIS-I, let alone TIS-II; moreover, it doesn’t resolve any problems posed by enhancing a misdemeanor under a statute other than § 939.62(1)(a).

Finally, the court of appeals concludes Smith-Iwer didn’t preserve his Gerondale argument because he cited only Volk  in the trial court. (¶2). That conclusion seems strained given the fact that Gerondale itself simply applied Volk to the statute. Nevertheless, a word to the wise if you are making this argument: Cite Gerondale, too.

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