¶9. The court of appeals asks that we determine what combination of confinement in prison and extended supervision constitutes the presumptive minimum sentence when a statute provides that an offender “shall be imprisoned for not less than 3 years.”10 In other words, the sole issue presented to this court is whether the presumptive minimum sentence under Wis. Stat. §§ 961.41(1)(cm)3. and 973.01 is a term of three years of confinement plus an additional term of extended supervision or a term of confinement plus extended supervision totaling three years.¶10. We hold that the circuit court erred when it construed the presumptive minimum sentence under Wis. Stat. §§ 961.41(1)(cm)3. and 973.01 (TIS-I) to be three years of confinement in prison.11 We conclude that the three-year presumptive minimum sentence under §§ 961.41(1)(cm)3. and 973.01 is a total sentence of three years, consisting of a term of 27 months of confinement and nine months of extended supervision. We therefore reverse the order of the circuit court denying the defendant’s postconviction motion and remand the case for resentencing consistent with this opinion.
The particular result “has limited application and is of limited precedential value.” ¶10 n. 11. That’s because this is a TIS-I case and TIS-II did away with all but two presumptive minimums (¶43, citing §§ 939.623, 939.624 (2001-02). Or so the court says (about the “limited” impact, that is.) True, there’s probably a limited universe of defendants falling into Cole’s precise fact-pattern. But some larger lessons might be taken away from this case.
First, the court in effect throws up its hands and says in effect that no matter how you look at it TIS-I makes hash of any reasonable construction. “The truth of the matter is that TIS-I applies awkwardly to presumptive minimum sentences in unclassified felony statutes and it is impossible to cleanly and neatly reconcile the two statutes at issue in this case.” ¶23. This tie goes to the runner; the rule of lenity, in other words, rules: “even if one believes that the arguments on both sides are equally weighted, Wisconsin law provides that a court must favor a milder penalty over a harsher penalty when there is doubt concerning the severity of the penalty prescribed by statute.” ¶67.
Second, additional TIS-I litigation fall-out remains in the wings, most prominently whether TIS-I sentences may be revisited in light of TIS-II. This case, of course, doesn’t address that particular issue, but it does touch on an important building block: “Although TIS-II does not govern the present case, the history and provisions of TIS-II may be accorded weight to aid us in determining what the legislature intended in TIS-I inasmuch as TIS-II was viewed as supplemental legislation necessary to implement the infrastructure created by TIS-I.” ¶41, citing Michael B. Brennan et al., Fully Implementing Truth-in-Sentencing, Wisconsin Lawyer, Nov. 2002, at 11. The court goes on to factor TIS-II intent (rough equality of actual confinement and pre-TIS mandatory release time) into construction of the TIS-I statutes involved in Cole’s case. E.g., ¶¶52, 64. Whether that’s enough to help make TIS-II reductions a new factor in relation to an outsized TIS-I sentence remains to be seen. The court of appeals, to be sure, has taken a dim view of a challenge to TIS-I, State v. Dawn M. Champion, 2002 WI App 267 (rehabilitation not new factor), but that case is logically distinct from a claim that the legislature intended rough parity between AC and MR, therefore TIS-I sentences may be reviewed to see if that goal was served.