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COA holds mandatory minimum for OWI 5 or 6 doesn’t allow for probation

State v. Lynne M. Shirikian, 2023 WI App 13; case activity (including briefs)

Shirikian pleaded to OWI as a fifth offense. Back in 2019, the legislature amended the statutes to create a both a presumptive and a mandatory minimum sentence for OWI 5th and OWI 6th. See 2019 Wis. Act 106; Wis. Stat. § 346.65(2)(am)5. The presumptive minimum requires at least 18 months of initial confinement, but the statute lets a court go lower if it finds doing so in the best interest of the community and not harmful to the public. The court of appeals now holds that even if a court decides to give less than 18 months IC, it’s still obligated to impose a bifurcated sentence. Since bifurcated sentences necessarily involve at least a year of IC, see Wis. Stat. § 973.01(2)(b), that year is the true mandatory minimum. Further, the court holds, a sentencing judge can’t avoid this minimum by imposing and staying a prison sentence and ordering of probation. Because the judge here did order probation, the court of appeals remands with directions that the lower court impose a legal sentence.

In concluding that the statute always requires a bifurcated sentence, the court looks to what it believes to be the plain and unambiguous language of Wis. Stat. § 346.65(2)(am)5, which says that “[t]he court shall impose a bifurcated sentence under s. 973.01, and the confinement portion of the bifurcated sentence imposed on the person shall not be less than one year and 6 months. The court may impose a term of confinement that is less than one year and 6 months if the court [makes the necessary findings].” Per the opinion,

the first sentence of WIS. STAT. § 346.65(2)(am)5 specifically refers to “the confinement portion of the bifurcated sentence[.]” The second sentence then refers to “a term of confinement[.]” Id. However, the second sentence does not refer to “a term of confinement” in isolation. Rather, the phrase “a term of confinement” in the second sentence is directly tied to the presumptive eighteen-month mandatory minimum identified in the first sentence: “The court may impose a term of confinement that is less than one year and 6 months[.]” Id. (emphasis added). Because the one year and six month term of confinement must be imposed as part of a bifurcated sentence per the clear and unambiguous statutory language, the phrase “term of confinement,” as used in the second sentence, when read “in the context in which it is used[,] not in isolation but as part of a whole[,]” must also refer back to the mandatory bifurcated sentence. See Kalal, 271 Wis. 2d 633, ¶46. In other words, the only reasonable reading of these sentences together is that the word “confinement” in the second sentence has the same meaning as the word “confinement” in the first sentence—that the “confinement” is the “confinement portion of the bifurcated sentence[.]” See § 346.65(2)(am)5.


On the question of probation, the opinion turns to prior cases holding that statutes commanding a minimum IC time necessarily exclude the possibility of imposing and staying that time and granting probation:

Shirikian also argues that the circuit court’s stay and sentence of probation is authorized under WIS. STAT. § 973.09(1)(a), which provides that unless “probation is prohibited for a particular offense by statute,” a court “may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation[.]” Again, Shirikian is wrong. This statute does not apply because when a statute directs that a circuit court “shall” impose a particular sentence, the circuit court must comply with the statute. SeeState v. Lalicata, 2012 WI App 138, ¶¶14–15, 345 Wis. 2d 342, 824 N.W.2d 921. Lalicata thus instructs that when a specific statute requires a court to impose a bifurcated sentence including a mandatory minimum term of confinement, the statute prohibits the court from staying the sentence and placing the person on probation. Id. Our supreme court confirmed the Lalicata rule in Williams: “a mandatory minimum bifurcated sentence is inconsistent with permitting probation[.]” Williams, 355 Wis. 2d 581, ¶34 (citing Lalicata, 345 Wis. 2d 342, ¶11).


The court finally rejects Shirikian’s argument that resentencing her violates her protections against double jeopardy: “Because Shirikian’s sentence was not lawful, she has no legitimate expectation of finality in it, and resentencing her does not violate double jeopardy.” (¶42).

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