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Enhancer — TIS-I – Calculation (Confinement vs. Supervision)

State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals
For Jackson: Joseph E. Schubert

Issue: Whether penalty enhancement of a TIS-I sentence, § 973.01(2) (1997-98), applies to the confinement portion alone, or to the total term of imprisonment (including extended supervision), of a bifurcated sentence.


¶17. The key to understanding the applicability of penalty enhancers under TIS-I lies in Wis. Stat. § 973.01(2)(c), which is entitled “[p]enalty enhancement.” The first sentence of the provision directs the sentencing court to add the penalty enhancer to the maximum term of confinement. The second explains the relationship between the increased term of confinement and the overall term of imprisonment. Wis. Stat. § 973.01(2)(c) states:

(c) Penalty enhancement. The maximum term of confinement in prison specified in par. (b) may be increased by any applicable penalty enhancement. If the maximum term of confinement in prison specified in par. (b) is increased under this paragraph, the total length of the bifurcated sentence that may be imposed is increased by the same amount.

(emphasis added).…

¶20. We agree with the State that Jackson’s penalty enhancer was not subject to bifurcation and was correctly added to the underlying maximum term of confinement. …

¶30. In sum, based upon Volk and Wis. Stat. § 973.01(2)(c), together with its legislative history, we determine that the legislature did not intend sentencing courts to bifurcate penalty enhancers between confinement and extended supervision or add them to the term of imprisonment pursuant to Wis. Stat. § 939.62, as Jackson advances. Rather, it intended courts to add them to the maximum term of confinement for each underlying offense, thereby increasing the overall term of imprisonment by the same amount.

Clear enough: penalty enhancers are allocated only to the confinement portion of a bifurcated sentence. This is a TIS-I sentence, and the court takes pains to say that it “does not address the recent changes of TIS-II.” ¶2 n. 2. That said, the crux of the matter – language in § 973.01(2)(c) – doesn’t appear any different in the TIS-II version. Also of note: as the quote above suggests, the court essentially upholds State v. Volk, 2002 WI App 274, ¶¶35-36, 258 Wis. 2d 584, 654 N.W.2d 24. Note, too, that the court relies on the legislative history contained in the Criminal Penalties Study Committee’s final report, which is found here. ¶¶22-24. It therefore should be consulted on matters involving TIS construction.


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