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Earned Release Program (“ERP”) — Exercise of Discretion to Determine Eligibility

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding: The sentencing court properly exercised discretion in denying eligibility for Earned Release, § 302.05(3), despite misperceiving at one point that defendant was statutorily ineligible:

¶17 … [A]t the December 6, 2004, [postconviction] hearing … [t]he court stated:

Well, of course, the Court is very familiar with Mr. Montroy.  He’s had a long criminal record since he’s been here in this state. And those are the primary considerations that the Court took into consideration.He is incorrigible. I believe he is where he belongs. And he should stay there for as long as the Court has sentenced him.

The State argues that the court’s statements here demonstrate that it exercised its discretion to deem Montroy ineligible.

¶18      Montroy replies that the court’s statement was not a sufficiently specific determination of his eligibility for the program. He contends that “[t]he only finding the trial court made as to eligibility was that Mr. Montroy was not eligible because of his sexual conviction.” We disagree. While the court did not specifically state that Montroy was ineligible for the program, it is apparent that the court did not think Montroy should be able to decrease his term of imprisonment. See State v. Gallion, 2004 WI 42, ¶49, 270 Wis.  2d 535, 678 N.W.2d 197 (exercise of sentencing discretion is not a matter of uttering “magic words”).

¶19      Additionally, at the April 5, 2004, sentencing hearing, the court did, in fact, make a ruling on Montroy’s eligibility for the program. At that time, the court stated, “[Y]ou do not qualify for Challenge Incarceration or for Earned Release credit because of the many convictions on your drug involvement.” …

In the event the background’s not clear enough: at sentencing, the court premised denial of eligibility on Montroy’s “many drug convictions,” ¶4. You might think that persistent drug involvement is a reason for not against eligibility in a program that is, after all, supposed to treat inmates with drug problems. But the idea makes more sense if seen as support for the judge’s conclusion that the individual simply isn’t amenable to treatment – which is probably the best way to construe the remark. Montroy’s claim is that the court’s determination was based on the inaccurate assumption that he was statutorily ineligible – yet, Montroy himself seemingly contributed to this problem, by inducing a ruling on that false assumption (¶5). The court of appeals has imposed an estoppel bar for less. No matter. Montroy eventually brought this to a head with a postconviction motion, and the trial court ruled as quoted above. The long and short of it is that a defendant’s “long criminal record,” showing that “(h)e is incorrigible,” is a proper basis on which to deny ERP eligibility. And though the court of appeals doesn’t provide any embellishment, it’s pretty clear that these postconviction remarks do indeed support the implication of thesentencing remarks that Montroy simply would not benefit from the program. Seen in that light, this is a narrow holding.


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