State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Where the term of initial confinement exceeds the permissible maximum, based on the rule that this term may not exceed 75% of the total sentence, the error is not harmless even though the term is less than the maximum that could have been imposed had the maximum sentence been given; the remedy is resentencing. ¶¶22-24.
The court holds open the possibility “that the error was harmless under reasoning analogous to that used in penalty enhancer cases in which error with respect to a penalty enhancer is ignored if the penalty enhancer is not used to enhance a sentence. See State v. Kourtidias, 206 Wis. 2d 574, 590, 557 N.W.2d 858 (Ct. App. 1996).” ¶24 n. 4. But are the situations at all analogous? “When a sentence is within the term prescribed by the statute for the substantive crime, the repeater statute is not invoked. Harris, 119 Wis.2d at 619, 350 N.W.2d at 637. Since the sentence on the enticement conviction did not invoke the repeater provisions, we do not address Kourtidias’s argument on the merits.” If the sentencing court never actually uses the enhancer, it simply doesn’t matter whether the enhancer was improperly brought to the court’s attention: no harm, no foul. No comparable argument can be made relative to miscomputation of the sentence itself. Note, too, that where the sentence is less than the overall permissible maximum, resentencing may risk exposure to a greater sentence, see generally State v. Victor Naydihor, 2004 WI 43. In that instance, you might give some thought to invoking § 973.13 (sentence exceeding maximum permissible penalty automatically commuted to permissible maximum).