State v. Emmit L. Groce, Jr., 2013AP844-CR, District 1, 9/4/13; court of appeals decision (1-judge; ineligible for publication); case activity
Groce was convicted of criminal damage to property as a repeat offender under § 939.62(1)(a) and given a bifurcated sentence consisting of one year of confinement in prison and one year of extended supervision. (¶¶2-3). He later requested a sentence modification under State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App. Nov. 3, 2009) (unpublished). (¶4). As explained in more detail elsewhere on this site, Gerondale relied on State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24, to conclude there’s an irreconcilable conflict in § 973.01 when it comes to imposing a bifurcated sentence for an enhanced misdemeanors because the statute requires a bifurcated sentence to include extended supervision but prohibits using time from the repeater enhancer for anything other than confinement. Because misdemeanor sentences don’t carry extended supervision terms unless the misdemeanor penalty is being enhanced, a court must use enhancer time to impose extended supervision. As an admittedly imperfect solution to the conflict, Gerondale (¶¶6-11) held that an enhanced misdemeanor misdemeanor sentence may be bifurcated no more and no less than necessary to comply with the statutorily required minimum period extended supervision (25% of the length of the term of confinement). Under this holding, the one-year period of extended supervision imposed on Groce is too long.
The court of appeals judge in this case rejects the Gerondale court’s conclusion that there is a conflict in § 973.01, holding that “[i]n essence, for misdemeanor sentences, Wis. Stat. § 973.01 creates a ‘75/25’ rule, which states that ‘the maximum term of confinement in prison may not exceed 75% of the total length of the bifurcated sentence,’ while the term of extended supervision ‘may not be less than 25% of the length of the term of confinement in prison.’”( ¶8). The court distinguishes Volk, citing the language and history of § 973.01:
¶12 …. Volk applied only to felonies. It interpreted a version of the statutes in which enhanced misdemeanor sentences were not bifurcated. See Volk, 258 Wis. 2d 584, ¶1 n.2 (interpreting 1999-2000 version of state statutes); 2001 Wis. Act 109 (new version of Wis. Stat. § 973.01 requiring bifurcation of misdemeanor sentences in effect July 30, 2002). Also, the statutory language on which Volk relied to conclude that penalty enhancers could only be applied to the confinement portion of the sentence, on its face, only applies to felonies. See id., 258 Wis. 2d 584, ¶2 (interpreting Wis. Stat. § 973.01(2)(c)); see also § 973.01(2)(c)1. Furthermore, examining Wis. Stat. § 939.62(1)(a) in conjunction with the surrounding statutes demonstrates that the language of the misdemeanor repeater differs from that corresponding to felonies. A misdemeanor repeater sentence can be increased to not more than two years. See id. Felony repeater sentences, on the other hand, may be increased by a period of years, the specific number depending on the length of the underlying crime and the nature of the previous convictions. See § 939.62(1)(b). These differences persuade this court that the Volk rule does not currently apply to enhanced misdemeanors. As such, our analysis in Gerondale, in which we compared Volk with § 973.01, also does not apply.
In any event, the circuit court did not err in declining to follow Gernodale because that case is unpublished and therefore not binding. (¶13).
This decision is the second one in as many months to reject Gerondale. The previous case is State v. Shawn Robinson, 2012AP2498-CR (Wis. Ct. App. July 23, 2013) (unpublished). The rationales in this case and Robinson are similar, though the reasoning is a bit more fully developed in this case. On the other hand, Gerondale has been followed by State v. Lavon Ash, 2012AP381-CR (Wis. Ct. App. Aug. 15, 2012) (unpublished), and, to some extent, by State v. Gabriel Griffin, 2012AP2361-CR (Wis. Ct. App. July 30, 2013) (unpublished) (agreeing with Gerondale that there’s a conflict in § 973.01, but coming up with a very different method of resolving that conflict). As we noted in our post on Griffin, while we await final resolution of these conflicting conclusions about enhanced misdemeanor sentences, remember that imposing a straight jail sentence instead of a bifurcated prison sentence will avoid the difficulty of applying § 973.01. And, as we’ve suggested before, there’s 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.
Kicking Volk to the curb would remove a major obstacle to coherent enhanced misdemeanor sentencing. But is it that simply accomplished? True, Volk construed only felony enhancers, for the simple reason misdemeanor enhancement was then a mere gleam in the legislative eye. Nonetheless, Volk’s analysis seemingly applies full bore to the present misdemeanor-enhancement scheme. That is, Volk held that § 973.01(2)(c) clearly and unambiguously assigns enhancement penalty solely to confinement; and crucially, that language remains undisturbed in pertinent respect. That being so, why shouldn’t misdemeanors equally fall under the confinement-only regime of felony enhancement? The apparent rejoinder is that the statutory language is signally different: misdemeanors are enhanced “to” 2 years, while felonies are enhanced “by” variable amounts. But this appears to be a minor rhetorical distinction without any meaningful difference. Note, for example how the Volk court itself described the circumstance: “This increased Volk’s total imprisonment exposure from ten years to twelve years.” (Another way of saying, in other words, increased exposure by 2 years; no difference, that is.) Precisely because felony enhancers vary in length, it is more accurate and certainly more efficient to say they support increase “by” a specified amount; and to say that, because misdemeanor enhancement exposure is static, it supports increase “to” the specified ceiling. The paradox of misdemeanor enhancement resists judicial solution because the statutory scheme is hopelessly incongruous — emendation is the legislature’s responsibility.