If a sentencing court imposes an excessive term of initial confinement (IC) or extended supervision (ES) when sentencing a defendant under Truth-in-Sentencing (TIS), the defendant “is entitled to a new sentencing hearing as a matter of law unless the nonexcessive term of IC or ES is at the maximum, in which case the court has the discretion to commute the excessive component to the maximum term pursuant to Wis. Stat. §973.13 (2019-20) without holding a new sentencing hearing.” (¶1).
It’s long been established that a bifurcated sentence under TIS is a single sentence with two parts, IC and ES. State v. Volk, 2002 WI App 274, ¶28, 258 Wis. 2d 584, 654 N.W.2d 24. Because neither the IC nor the ES term is by itself the “sentence,” and given the “symbiotic relationship” between the two components, “with the length of one necessarily influencing the length of the other and the overall length of the bifurcated sentence,” 258 Wis. 2d 584, ¶48, when a sentencing judge erroroneously imposes too much IC or ES the court should resentence the defendant, not just commute the excessive IC or ES, id., ¶¶47-48.
LeBlanc was sentenced for a Class C felony, with a maximum total sentence of 40 years, a maximum IC of 25 years, and a maximum ES of 15, see §§ 939.50(3)(c) and 973.01(2)(b)3. and (d)2. The court imposed a 35-year sentence, which is legal, but it consisted of 15 years of IC (not excessive) and 20 years of ES (excessive). After LeBlanc arrived in the prison system, the DOC flagged the excessive ES term and wrote the judge a letter alerting him to the mistake. After a brief hearing, and without objection from either party at the time, the sentencing court commuted the ES term to the maximum allowable term of 15 years. (¶¶3-6).
LeBlanc then filed a postconviction motion arguing he was entitled to resentencing, not just commutation. The sentencing court denied the motion. (¶7). The state defends this result by relying on the statute authorizing commutation, § 973.13, and State v. Holloway, 202 Wis. 2d 694, 551 N.W.2d 841 (Ct. App. 1996), which it says “commands” commutation. (¶12). The court of appeals rejects this claim, which sweeps way too broadly:
¶11 As in Volk, if we force commutation upon a defendant who moves for resentencing, “we would produce a sentence based solely on mathematics, rather than an individualized sentence based on ‘the facts of the particular case and the characteristics of the individual defendant.’” Volk, 258 Wis. 2d 584, ¶48 (quoting Holloway, 202 Wis. 2d at 699-700). Volk adopted Holloway’s reasoning that “[s]entences are to be individualized to meet the facts of the particular case and the characteristics of the individual defendant…. We should not restrict the discretionary authority of a court at resentencing when the underlying premise for an original sentence no longer exists.” Volk, 258 Wis. 2d 584, ¶47 (quoting Holloway, 202 Wis. 2d at 699-700). As we explained, “[r]esentencing is generally the proper method of correcting a sentencing error.” Id. (quoting Holloway, 202 Wis. 2d at 700).
¶12 …. We agree that where an excessive sentence is imposed, the court has no discretion but to commute the sentence to the maximum penalty “authorized by law.” Sec. 973.13. We disagree with the State’s premise that a court has the discretion to choose between commutation and resentencing where the court did not impose a maximum term for either the IC or ES component. In other words, where the defendant received an excessive sentence and both the IC and ES components were at or exceeding the maximum—a “maximum case”—the court has the discretion to commute the excessive component to the statutory maximum term pursuant to § 973.13. Where the nonexcessive term of IC or ES is not at the maximum, however, a defendant is entitled to a new sentencing hearing as a matter of law.
Because LeBlanc is now objecting to commutation, he is entitled to resentencing, and so the case is remanded for that. (¶13).
This implies a caveat to automatic resentencing: the defendant could decide not to object to commutation of the excessive component. LeBlanc’s case illustrates why that might be desirable, for a new sentencing hearing hearing he is subjecting himself to a longer term of IC to make up for the amount of time by which ES must be reduced if the circuit court remains intent on imposing a 35-year sentence. (¶13 n.6). Note, too, that a defendant’s agreement to commutation might not be enough to avoid resentencing. The sentencing judge may view the commuted sentence as one “based solely on mathematics” and conclude commutation frustrates his or her sentencing intent, in which case the court can resentence regardless of the defendant’s willingness to accept commutation. Holloway, 202 Wis. 2d at 699-701.
LeBlanc raised another claim for resentencing—that the circuit court based the sentence in part on LeBlanc’s religious beliefs, given its comments about LeBlanc statement that extramarital sex is not “sinful.” (¶¶7, 14). Because it orders resentencing on other grounds, the court doesn’t decide whether the circuit court actually relied on improper religious factors, but two judges offer some cautionary guidance on the issue:
¶18 …. If the court was basing its sentencing decision on LeBlanc’s religious beliefs as they relate to extramarital sex and/or “sin” this was improper. See State v. Ninham, 2011 WI 33, ¶96, 333 Wis. 2d 335, 797 N.W.2d 451 (“[A] circuit court may not base its sentencing decision upon the defendant’s or the victim’s religion.”); State v. Fuerst, 181 Wis. 2d 903, 911-12, 512 N.W.2d 243 (Ct. App. 1994)…. We would also note that to the extent the sentencing court was basing its decision on LeBlanc’s permissive attitudes towards sexual practices, including his statement to the PSI writer that “I don’t believe that you have to be married to have sex”—a statement the sentencing court expressly made note of at sentencing—this too would be improper. See Lawrence v. Texas, 539 U.S. 558, 577-78 (2003).
A concurring judge (Gundrum) declines to join this discussion, finding nothing improper about the circuit court’s reference to LeBlanc’s attitudes toward sex or his behaviors because they are clearly related to protection of the public, particularly minors, given he was convicted of using a computer to facilitate a child sex crime. (¶¶19-25).