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Yet another take on how to structure bifurcated sentences for an enhanced misdemeanor

State v. Gabriel Griffin, 2012AP2631-CR, District 1, 7/30/13; court of appeals decision (1-judge; ineligible for publication); case activity

Agreeing with State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App Nov. 3, 2009) (unpublished), and State v. Ash, No. 2012AP381-CR (Wis. Ct. App. Aug. 15, 2012) (unpublished), that there is a conflict in § 973.01 which affects the structure of enhanced misdemeanor sentences, a court of appeals judge holds it is illegal to impose a sentence of one year of confinement followed by one year of extended supervision (ES) for a misdemeanor enhanced under § 939.62(1)(a). But while the court follows Gerondale in finding a problem in the statute, it comes up with a different approach for resolving the problem.

Griffin was convicted of a Class A misdemeanor and a Class B misdemeanor as a repeater. (¶¶1, 19). That means the usual term of imprisonment for those crimes–9 months and 90 days, respectively–is increased to two years, § 939.62(1)(a). But § 973.01(2)(c)1. says the repeater enhancer can be used to increase confinement only, not extended supervision, State v. Volk, 2002 WI App 274, ¶¶35-36, 258 Wis. 2d 584, 654 N.W.2d 24. Gerondale held that this rule seems impossible to apply to enhanced misdemeanors because, unlike classified felonies, misdemeanors are not ordinarily bifurcated, and in order to enhance a basic misdemeanor sentence to a bifurcated sentence some of the enhanced time must necessarily be used to create a supervision period. Thus, it held a misdemeanor prison sentence based on a penalty enhancer may be bifurcated no more and no less than necessary to comply with the minimum 25% extended supervision requirement of the statute.

Relying on § 973.01(2)(c)1., which provides that if the maximum term of confinement specified in § 973.01(2)(b) is increased, the total length of the bifurcated sentence is increased by the same amount, the court in this case concludes that the permissible period of ES for each crime is equal to the amount of time needed to reach the one year of confinement time imposed by the trial court, which is also the minimum required by § 973.01(2)(b). Under this formula, ES for the Class A misdemeanor can be three months (12 months minus 9 months, the ordinary maximum), and the total sentence is 15 months (12 months of confinement plus three months of ES). For the Class B misdemeanor, ES can be 275 days (365 days minus 90 days, the ordinary maximum maximum), and the total sentence can be 640 days (just over 21 months). (¶21). The court acknowledges the anomaly that the less serious Class B misdemeanor carries 275 days of possible ES time while the more serious Class A misdemeanor carries only 90 days, but it suggests it is simply following the language of the statute, which the legislature can “fine-tune” if it sees fit. (¶21 n.3). Because the circuit court’s sentences exceeded these permissible periods of ES, Griffin is entitled to resentencing. (¶22).

The result here, as in Gerondale and Ash, means a sentencing court follows some of the requirements of the statute, but not others–in particular, the rule that the term of confinement not exceed 75% of the total sentence, § 973.01(2)(b)10. At least this decision better explains its reasoning, saying the 75% rule “gives way” if it conflicts with the increase allowed by the enhancer because  § 973.01(2)(b)(intro.) makes that rule subject to the increase allowed in § 973.01(2)(c)1. (¶21). Still, it results in the anomaly already noted, that the lesser crime carries the longer sentence. (NB: The footnote discussing that anomaly has what can only be a typographical error, as it suggests the circuit court could have imposed two years of confinement plus ES; but that would clearly be illegal, as it exceeds the two year maximum total sentence allowed under § 939.62(1)(a).) And, like Gerondale, it’s hard to know how to apply this opinion to other sentences. For instance, what if Griffin had been given more than 12 months of confinement. Is the maximum ES still 90 days for the Class A and 275 days for the Class B? Or, as the opinion might be suggesting by referring to the judge’s sentences in this case (¶21), is ES determined by the difference between the ordinary maximum and whatever confinement the judge imposed? For instance, if the confinement portion is 15 months, does the maximum ES go up to 180 days for the Class A and 365 days for the Class B (not all of which could be imposed, of course, because then the total sentence would exceed two years)?

Readers should also note this decision is contrary to the very recent decision in State v. Shawn Robinson, 2012AP2498-CR (Wis. Ct. App. July 23, 2013) (unpublished). The judge in that case rejected Gerondale and Ash, holding there is no conflict in § 973.01 and that a bifurcated enhanced misdemeanor sentence simply needs to comply with § 973.01’s rules: The confinement portion of the sentence be at least one year long, but not more than 75% of the total length of the sentence, and that the term of extended supervision equal at least 25% of the length of the term of confinement. The disparate results of the cases addressing enhanced misdemeanor sentences means we haven’t heard the last word on the matter. If you are grappling with this issue in the meantime, remember that imposing a jail sentence instead of a bifurcated sentence will avoid the difficulty of applying § 973.01. And, as we suggested in a previous post, there’s may be an argument that the lack of clarity in the statute means a bifurcated sentence simply can’t be imposed until the rules are clarified by the legislature.

The court also holds that the circuit court did not erroneously exercise its discretion in denying defendant’s request for counsel at the beginning of trial because over the course of the case he had consistently asserted his right to represent himself and had appeared and litigated the case pro se:

¶15      Griffin contends that the trial court’s decision to not grant him an adjournment in order to get a lawyer was wrong because, he argues, it was contrary to its assurance that each side got one adjournment. Of course, the trial court said, as we have seen, that it was its usual policy to give each side one adjournment “for good cause.” That was not and could not be a chit that could be used at any point, even if only for delay. Given the circumstances that we have set out at length, the trial court’s refusal to derail the trial to accommodate Griffin’s last-minute request for “a public defender” was not by any stretch of the imagination an erroneous exercise of discretion. See [State v. Rhodes], 2011 WI App 145, ¶31, 337 Wis. 2d at 608, 807 N.W.2d at 8 (“‘[T]he timing of the motion is part and parcel with the consideration of whether disruption would result if the motion was granted.’”) (quoted source omitted).

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{ 2 comments… add one }
  • wm. tyroler August 7, 2013, 12:09 am

    Re assignment of a harsher penalty for the less serious offense: does Griffin have an equal protection argument under State v. Asfoor, 75 Wis.2d 411, 439-41, 249 N.W.2d 529 (1977) (irrational to penalize as a felony causing injury by negligent use of weapon when causing death by negligent use of weapon is penalized as misdemeanor)? Here, a Class B misdemeanor is clearly less serious than a Class A misdemeanor (whose penalty is three times as harsh), yet when the sentence is enhanced to a 1-year confinement, the formula devised by the court yields an inverted relationship (90 days ES for the Class A, 275 days ES for the Class B). Maybe that result would squeeze past Asfoor-type = pro challenge, but it does seem arbitrary nonetheless. Granted, this is a mess that calls for legislative fix — but until that bright day, some lenity-based resolution might be the way to go. Such as: make the enhanced max one year, all confinement, served in the county jail (sentences to prison must be bifurcated; barring exception, misdemeanors must be served in jail, see sec. 973.02). That outcome would retain the integrity of the underlying sentence structure, which admits of no bifurcation. And, it observes Volk’s command that enhancement be allocated solely to confinement. Yes, it’s a jerry-rigged solution, but that’s unavoidable anyway, plus it appears to do the least damage to incompatible, therefore unenforceable, statutory edicts.

    Any thoughts?

  • admin August 7, 2013, 9:26 pm

    The Asfoor angle in intiguing, as it does seem irrational to treat the enhanced Class B misdemeanor more harshly than the enhanced Class A misdemeanor. As for the one year in jail suggested by our post and Wm. Tyroler’s comment, that avoids the intractable bifurcation problem posited by Gerondale, Ash, and, now, Griffin. To be clear, however, that cannot mean the defendant serves a full 12 months. Jail inmates are entitled to “good time” of 25% under sec. 302.43, so any outcome purporting to commit a misdemeanor repeater to jail for the entire 12 months also creates a statutory conflict.

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