State of Wisconsin ex rel. Christopher P. Kawleski v. State, 2022AP1129, 7/3/25, District IV, (recommended for publication); case activity
COA recommends publication in a case addressing how to calculate the maximum discharge date for a defendant sentenced to a bifurcated sentence on a felony between 1999 and 2003 upon release from reconfinement after extended supervision was revoked.
Christopher Kawleski was sentenced in 2001 to 2 years and 6 months of initial confinement and 17 years and 6 months of extended supervision. He was released to extended supervision on December 16, 2003, which was revoked on August 8, 2005 and he was reconfined for 2 years. He was released again on May 22, 2007, which was revoked on November 15, 2018, and he was reconfined to 4 years, 7 months, and 26 days. He was released from his second reconfinement on July 2, 2022, and advised by the Department of Corrections that his maximum discharge date is May 14, 2033, which was based on the time he served in confinement and reconfinement as of July 2, 2022 (9 years, 1 month, and 18 days). (¶ 10).
Kawleski argued that his maximum discharge date is February 10, 2028, because it should be calculated by subtracting the time that he served on extended supervision as of July 2, 2022 (11 years, 10 months, and 22 days), from his total term of extended supervision (17 years and 6 months). (¶ 25).
The COA agreed with Kawleski’s interpretation of the version of Wis. Stat. § 302.113 in effect in 1999 which, “read as a whole, for a defendant who is released to extended supervision after reconfinement, the period of extended supervision to be served equals the term of extended supervision portion of the bifurcated sentence minus the time the defendant has already served on extended supervision.” (¶ 35). The Court explained that there was no language in § 302.113 that authorized increasing the term of extended supervision portion of the bifurcated sentence, or that provides for a defendant to serve more than the term of extended supervision imposed as part of the bifurcated sentence. (¶ 33). On the other hand, the confinement portion of a bifurcated sentence could be extended because of misconduct by the inmate while incarcerated (§ 302.113(3)), and if the person’s extended supervision was revoked (§ 302.113(9) (1999-2000). (¶ 22).
Kawleski also argued that he was unlawfully reconfined after his second revocation because the applicable statute (§ 302.113(9)(ag)-(am)), which remains in effect, violates the separation of powers because it authorizes the executive branch, through the Department of Administration or Department of Corrections, to order the period of reconfinement instead of the judicial branch. (¶ 45). Although the Court considered his argument “potentially persuasive,” it did not address separation of powers because Kawleski did not show he would be entitled to release earlier than his properly determined maximum discharge date. (¶ 55).
The Court’s holding only applies to defendants serving sentences for felonies committed between December 31, 1999, and February 2003. Wis. Stat. § 302.113(9)(c) was subsequently amended to provide that a defendant who is released to extended supervision “is subject to all conditions and rules . . . until the expiration of the remaining extended supervision portion of the bifurcated sentence” and defines the “remaining extended supervision portion of the bifurcated sentence” as “the total length of the bifurcated sentence, less the time served” in confinement and reconfinement. For any defendant serving a sentence for a felony committed since February 2003, the maximum discharge date after reconfinement is determined as the DOC calculated Kawleski’s sentence — by subtracting the time served in confinement and reconfinement from the total length of the bifurcated sentence. (¶ 39).
