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Court of appeals clarifies Harris rule that court must impose maximum sentence before applying repeater penalty ehancer

State v. Adam W. Miller, 2013AP2218; 6/5/14; District 4 (not recommended for publication); case activity

The court of appeals holds that a circuit court may apply the § 939.62(1)(c) penalty enhancer to increase Miller’s term of initial confinement beyond the maximum prescribed by law without first imposing the maximum term of imprisonment, as in the maximums for both initial confinement and extended supervision.

Williams handled this appeal pro se so his briefs are not available on-line.  The facts, according to the court of appeals, are these:

¶3        The sentence at issue in this case was imposed following Miller’s conviction for burglary while armed with a dangerous weapon as a “repeater,” in violation of Wis. Stat. §§ 943.10(2)(a) and 939.62(1)(c).

¶4        Burglary while armed with a dangerous weapon is a Class E felony.  Wis. Stat. § 943.10(2)(a).  The maximum term of imprisonment for a Class E felony is fifteen years.  Wis. Stat. § 939.50(3)(e).  The term of imprisonment must be bifurcated between a term of initial confinement and a term of extended supervision.  Wis. Stat. § 973.01(2).  The maximum term of initial confinement for a Class E felony is ten years, and the maximum term of extended supervision is five years.  Wis. Stat. § 973.01(2)(b)5. and (d)4.  Because Miller was a “repeater” with prior misdemeanor convictions, the maximum term of imprisonment could be increased by up to two years pursuant to Wis. Stat. § 939.62(1)(c).

¶5        In addressing the count of conviction at issue here at the sentencing hearing, the circuit court stated that Miller faced the following maximum penalty:  “[Twelve] years [of] initial confinement, ten plus an additional two for the [penalty] enhancer, plus five years [of] extended supervision.”  The circuit court sentenced Miller to eleven years of initial confinement and four years of extended supervision, for a total length of sentence of fifteen years.

According to the Wisconsin Supreme Court,

We make explicit what has previously been implicit. The repeater statute, sec. 939.62, Stats., is not applicable to the sentence of a defendant unless the trial court seeks to impose a sentence in excess of that prescribed by law for the crime for which the defendant is convicted.  State v. Harris, 119 Wis. 2d 612, 619, 350 N.W.2d 633 (1984).

Williams hung his hat on Harris, but it proved to be a hollow hook.  Harris, the court of appeals held, was decided prior to Truth-in-Sentencing and, in that case, the circuit court imposed an indeterminate sentence that, with the enhancer, was below the maximum allowed by law.  Here, the circuit court imposed a bifurcated sentence.  With the enhancer, the initial period of confinement exceeded the maximum allowed under § 973.01(2)(b)(5) by 1 year.  Furthermore, the court explained, penalty enhancers do not apply to the extended supervision term of a bifurcated sentence.  Slip op. ¶12 (citing State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 240.)  So it does not matter that Williams’ term of ES was less than the maximum.

Truth-in-sentencing has been on the books for over 10 years, and yet Harris has never been limited, modified, or clarified by the supreme court.



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