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Sentencing Sexual Assault-Child, § 948.02(1)(b): Mandatory Min., Probation-Ineligible

State v. Tony J. Lalicata, 2012 WI App 138 (recommended for publication); case activity

Probation is not an available disposition under § 948.02(1)(b) (child sexual assault). By mandating that “the court shall impose a bifurcated sentence” with a confinement portion of at least 25 years for that offense, § 939.616 forecloses the possibility of probation:

¶14      …  We conclude instead that § 939.616(1r) unambiguously prohibits probation, within the meaning of § 973.09, when it directs that the court “shall” impose a term of confinement of at least twenty-five years.

¶15      Our interpretation of the language of Wis. Stat. § 939.616(1r) is confirmed by Wis. Stat. § 973.09.  There, in providing for the option for probation, the legislature explains that “the court, by order, may withhold sentence or impose sentence … and stay its execution.”  (Emphasis added).  We presume the legislature is aware of existing law when it enacts laws.  Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶103, 327 Wis. 2d 572, 786 N.W.2d 177.  Under § 973.09(1)(a), when courts have the power to grant probation, they may either impose sentence and stay it or withhold sentencing altogether.  We are not aware of any statute whereby the court has the power to impose and stay a sentence and place the defendant on probation, but not the power to withhold sentencing. Yet, for Lalicata’s rationale to work, § 939.616(1r) must do exactly this, i.e., allow imposing and staying a sentence but not withholding a sentence.  To demarcate some legislative line between imposing and staying and withholding suggesting that a court may do one but not the other, defies common sense.  There can be no earthly reason for it that we can think of.  If the legislature had thought of a reason, it would have said so.  It did not.

¶16      In short, there is no way to reconcile the option to “withhold” sentence in Wis. Stat. § 973.09(1) with the mandate that the court “shall impose” sentence in Wis. Stat. § 939.616(1r).  We reject Lalicata’s implausible reading, that the “impose and stay” option is available when, by Lalicata’s logical progression, withholding a sentence is not available.

Turn the problem around: is it beyond legislative authority to do just what Lalicata says it did, allow probation but only with an imposed-and-stayed sentence? The court prudently makes no such assertion. Lalicata’s construction might or might not represent bad policy, but it is surely within the legislature’s prerogative to adopt it. Is, then, Lalicata’s construction absurd? The court says it is (“Lalicata’s implausible reading”), but doesn’t quite say why, except to observe dismissively its lack of awareness of any statute granting authority to impose-and-stay but not withhold sentence. That’s surely a relevant consideration, but hardly conclusive. Recall that, as the court mentions, “When a person is convicted of any crime which is punishable by life imprisonment, the court shall not place the person on probation,” § 973.09(1)(c). That section was promulgated precisely to overturn the result of State v. Wilson, 77 Wis. 2d 15, 252 N.W.2d 64 (1977), which had indeed permitted exactly the outcome deemed here to be unprecedented, namely probation where a withheld sentence was impermissible. Wilson, that is, held that stayed-sentence probation was supported for the mandatory life crime of murder under then-§ 940.01: “We agree with the trial court that it had such authority under the probation statute. If the legislature does not want a particular crime to be eligible for probation, it may do what it has done in the past: except the particular offense from the probation statute, as was done prior to 1947, or state in the penalty provision of the particular offense that sentence shall not be withheld or its execution stayed pursuant to the probation statute. In the case before us the statute does clearly provide that sentence shall not be withheld but it does not say that it may not be stayed.” 77 Wis. 2d at 22. The legislature responded with a specific prohibition (see Ch. 119, Laws of 1979; that provision has been since re-worded to its present form in § 973.09(1)(c)). Doesn’t that history provide at least some support for Lalicata’s position? Whether it’s enough to tip the balance in his favor is something else, but isn’t it enough to warrant treatment beyond a derisive “defies common sense”?

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