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Sentencing – Bifurcated, Enhanced Misdemeanor

State v. Lavon J. Ash, Sr., 2012AP381-CR, District 2, 8/15/12

court of appeals decision (1-judge, ineligible for publication); case activity

Ash was sentenced to concurrent terms of one-year initial confinement, one-year extended supervision on two misdemeanor counts, a sentence structure he successfully challenges. Incompatible statutory mandates lie at the heart of the problem. In the first instance, § 973.01(1)  requires bifurcated misdemeanor sentences, which simply isn’t possible for unenhanced misdemeanors: a bifurcated sentence must be served in prison, § 973.01(1), which in turn requires a sentence of more than one year, § 973.02, while unenhanced misdemeanor sentences are not punishable with prison, § 939.60. An enhanced misdemeanor is subject to a prison term, given that § 939.62(1)(a) increases the penalty to two years. But that leads to another, and different, insoluble problem. A penalty enhancer may be apportioned only to the confinement aspect of a bifurcated sentence, State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24; approved byState v. Jackson, 2004 WI 29, ¶30, 270 Wis. 2d 113, 676 N.W.2d 872; and on a bifurcated sentence, IC must be at least 25% of the total sentence and ES at least 25% of the confinement – these mandated formulas can’t be mathematically satisfied on an enhanced misdemeanor. The court agrees, at least to some extent, and vacates Ash’s sentence:

¶13      Bifurcation standards.  Ash argues, and the State agrees, that he is entitled to resentencing under the standards set forth in Gerondale.  We also agree.  Gerondale, like Ash, was convicted of misdemeanors as a repeater and given equally bifurcated sentences on the counts—one year of confinement and one year of extended supervision.  See Gerondale, Nos. 2009AP1237-CR, 2009AP1238-CR, unpublished slip op. ¶2.  We noted in Gerondale that while various provisions of Wis. Stat. § 973.01—the bifurcated sentencing statute—appear to interact well enough when dealing with felonies, the statute breaks down when applied to misdemeanors. Gerondale, Nos. 2009AP1237-CR, 2009AP1238-CR, unpublished slip op. ¶¶6-7.  We further pointed out that the problems with the statute are magnified by this court’s interpretation of the statute to prohibit any of the repeater portions of a sentence from being applied to extended supervision.  Id., ¶¶4, 8.  We then settled on a construction which follows our case law interpretation relying on the plain language of § 973.01(2)(c) “to the extent possible,” but which also requires the sentence to include the mandatory twenty-five percent minimum term of extended supervision, stating:

[A] misdemeanor prison sentence based on a penalty enhancer may be bifurcated only to the extent required to comply with the 25% minimum extended supervision requirement.  We believe this interpretation furthers the intent of the extended supervision sentencing component.  Our interpretation is also consistent with the habitual criminality enhancer statute, which, rather than referring to either confinement or extended supervision, merely provides that the “maximum term of imprisonment … may be increased.”  Wis. Stat.§ 939.62(1).  While our construction does not fully resolve the conflicts presented by Wis. Stat. § 973.01, the problem is one that the legislature must ultimately resolve.

Gerondale, Nos. 2009AP1237-CR, 2009AP1238-CR, unpublished slip op. ¶11.  Under this rationale, we remanded to the trial court for resentencing consistent with our interpretation of § 973.01.  Gerondale, Nos. 2009AP1237-CR, 2009AP1238-CR, unpublished slip op. ¶13.

¶14      Ash’s sentence imposed after revocation does not comply with our interpretation of Wis. Stat. § 973.01 in Gerondale. Accordingly, we remand to the trial court to resentence Ash in accordance with the Gerondale standards.

What, then, is the fix afforded by the Gerondale standards? As indicated in the blockquote above, it is “bifurca[tion] only to the extent required to comply with the 25% minimum extended supervision requirement.” This standard isn’t quite self-explanatory, but the Gerondale court did offer an example of its application:

¶12       Gerondale’s combined sentences of two years’ confinement and two years’ extended supervision bifurcate the penalty enhancer portion of his sentences and exceed the 25% minimum term of extended supervision, and therefore do not comply with our construction of Wis. Stat. § 973.01. Even if the circuit court had ordered all three two-year sentences to be served consecutively, the longest (and shortest) term of extended supervision the court could have granted was 14.4 months.[4] 

In other words, you take 25%, no more no less, of the confinement portion and make that the length of supervision. But this can’t be right, because it ignores the confinement formula. The Gerondale example (72-month sentence comprised of 57.6 months’ confinement, 14.4 months’ supervision) works with respect to supervision (14.4 is 25% of 57.6); confinement, however, may not exceed 75% of the total sentence, which in this example is 54 months (72 X .75), or 3.6 months less than the length ratified by the court. If the result fashioned by the court fashioned here and in Gerondale seems arbitrary, that’s because it is: it ratifies a result plainly unauthorized by statute. Not only that, but because the result exceeds the legislatively prescribed maximum, at least with respect to confinement (again: the legislatively authorized maximum in the example would be 54 months, the judicially approved outcome, 57.6), and thus unconstitutional. It’s certainly true that the statutes are a mess – you must bifurcate, but there’s no way to bifurcate – but how far is a court allowed to go in constructing a fix? The Gerondale court enigmatically observes: “While our construction does not fully resolve the conflicts presented by WIS. STAT. § 973.01, the problem is one that the legislature must ultimately resolve.” Maybe; but the court doesn’t explain how it can ignore a mandate (the IC formula), or how it may in effect relegislate the statutory scheme. In the absence of legislative resolution, a judicial fix simply isn’t available: bifurcation on a misdemeanor, enhanced or not, just isn’t possible.

{ 2 comments… add one }
  • Randy August 21, 2012, 9:44 am

    1.25x = 72 months, x = 57.6
    72 – 57.6 = 14.4
    There was a method … 🙂

    I worked for Corrections for 20 years

    Under the rule of lenity, all enhanced misdemeanor prison sentences of greater than 15 months (1 year confinement + 3 months ES) should probably be overturned and reduced to that level, in favor of the accused, as such a sentence is the closest possible scenario to approaching the 75% rule, and statutory requirement, that confinement cannot exceed 75% of the term of imprisonment…while at the same time meeting the 25% rule, that ES must be at least 25% of the confinement term. (State v Cole)

  • admin August 23, 2012, 9:04 am

    Thanks much for the useful information, Randy — to which might be added, support for applying the rule of lenity to reduce the nominal ceiling may be found in State v. Kleven, 2005 WI App 66, ¶¶26-27, 280 Wis. 2d 468, 696 N.W.2d 226. That said, Volk presents a real sticking point: if Volk is indeed applicable to misdemeanors, then *any* bifurcation is deeply problematic, because no ES is available. The “base” offense, a Class A, 9-month misdemeanor, doesn’t itself contain any ES (none carved out legislatively, anyway), and Volk says you can’t take ES out of an enhancement, leaving bifurcation up in the air. One way out is, as Randy suggests, deriving the shortest possible bifurcated sentence. While it has the distinct advantage of being mathematically sound (which can’t be said of Gerondale), it still means that the judiciary must step into the legislative breach and carve out from the base offense 3 months toward ES, when the legislature made no such provision. Other possibilities might be advanced, though they certainly aren’t pretty (for example: a max of 1-year straight confinement, which would have to be served in a county jail, because a prison sentence requires bifurcation). But the important point is that the practitioner should be aware of the fundamental deficiency with Gerondale, and be prepared to argue a solution that is both more accurate and more beneficial to the client. Randy’s input greatly advances that goal.

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