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

State v. Jonathan Owens, 2006 WI App 75, PFR filed 4/4/06
For Owens: Dianne M. Erickson

Issue: Whether the sentencing court’s initial denial of ERP eligibility, seemingly on the improper basis of the defendant’s age, was a proper exercise of discretion where on motion for reconsideration the court “stated that it had intended to refer to Owens’s age regarding his eligibility for the Challenge Incarceration Program only [and] then explained why it had denied Owens’s participation in the ERP and denied the motion for reconsideration.”


¶9        Owens complains that even though the trial court set forth an explanation for its sentence, it failed to separately explain its rationale for denying his ERP participation request. However, Wis. Stat. § 973.01(3g) explicitly states an ERP eligibility decision is part of the court’s exercise of sentencing discretion. [3] Thus, while the trial court must state whether the defendant is eligible or ineligible for the program, we do not read the statute to require completely separate findings on the reasons for the eligibility decision, so long as the overall sentencing rationale also justifies the ERP determination.

¶10      Moreover, the sentencing transcript here reveals the court more than adequately explained its decision. When Owens asserted that he had a drug problem and needed assistance, the court observed that treatment had been made available to him for years and yet he never availed himself of those opportunities. Accordingly, to the extent Owens complains the court failed to assess the likelihood of his success in the ERP, it is evident the court inferred, from his past apathy and failure to seek help, that Owens was neither sincere about wanting substance abuse treatment nor likely to succeed in the treatment program.

¶11      The court then determined that, given Owens’s criminal record and the particularly aggravated nature of the robbery, [4] protection of the community was the paramount sentencing objective, although punishment was also important. … In other words, the court determined the ERP to be inconsistent with the protection and punishment objectives and would not provide sufficiently “close rehabilitative control.” This is not an erroneous exercise of discretion.

 [3]  Because the statute specifies that the eligibility determination is part of sentencing discretion, and because sentencing factors are well-established, we decline Owens’s invitation to “come up with factors judges might use” for ERP eligibility decisions.

The sentencing court initially indicated that “Owens was ‘not eligible by age’ for either” ERP or Challenge Incarceration (CIP), ¶3. The latter program is age-restricted, ERP isn’t. Odds are, the judge simply got this eligibility requirement wrong. It happens, and there’s nothing unusual or worthy of condemnation about that. In theory, that’s the purpose of postconviction motions, to let the judge correct errors brought to his or her attention. But in practice, and this is a decent illustration, the judge instead “explains,” or “clarifies” that indeed there was no error because after all something else was meant other than the plain implication of the words actually spoken.


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