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Reconfinement – Lack of Authority to Consider CIP or ERP Eligibility

State v. Antonio M. Hall, 2007 WI App 168

For Hall: Michael D. Kaiser


¶17   From our examination of these statutory provisions, we find no ambiguity in the relevant language and conclude that the provisions of Wis. Stat. §§ 973.01(3g), 973.01(3m) and 302.113(9)(am) express a clear intent to restrict the sentencing discretion of the reconfinement court at a reconfinement hearing; it has no authority to consider eligibility for the CIP or the ERP in a reconfinement hearing.

As you will likely guess, Hall sought eligibility for CIP and ERP at his reconfinement hearing following extended supervision revocation; the trial court ruled it had no such authority on reconfinement and the court of appeals now affirms. The court of appeals takes pains throughout the opinion to say that reconfinement isn’t sentencing, a view that may or may not take hold, but ultimately it comes down to the statutory text:

¶13   The language of Wis. Stat. § 973.01(3g) and (3m), in clear terms, states that “[w]hen imposing a bifurcated sentence under this section” the court shall decide “as part of the exercise of its sentencing discretion” whether “the person being sentenced is eligible” for CIP or ERP. (Emphasis added.) Neither sub. (3g) nor sub. (3m) even mention a reconfinement hearing or describe the process.

¶14   In contrast, Wis. Stat. § 302.113(9)(am) governs the reconfinement procedure and sets forth the limits of exercisable discretion of the court. The language of the statute does not include this same broad measure of discretion when it comes to the authority of the court in a reconfinement hearing. No mention is made of considering the application of either CIP or ERP. It is only reasonable then to assume that if the legislature wanted the court to revisit the application of CIP and ERP at a reconfinement hearing, it would have expressly provided for that exercise of discretion within § 302.113(9)(am). Thus, it is reasonable to conclude that such specific powers of discretion do not exist.

¶15   Doubtless, Wis. Stat. § 302.113(9)(am) provides authority for a reconfinement court to exercise sentencing discretion in determining the length of time for which a revoked supervisee will be returned to prison. To expand the scope of this grant of limited discretion to include the duty to address eligibility for CIP and ERP finds no support in the statute.

There are reasons, perhaps, to quibble. For one thing, a reconfined defendant continues to serve a “bifurcated sentence,” which is the triggering condition of §§ 973.01(3g) and (3m). For another, it isn’t as significant as the court suggests that § 302.113(9)(am) fails to mention ERP or CIP: that section also fails to assign a right of allocution, a right the court of appeals just got done applying to reconfinements, State v. Quantae T. Hines, 2007 WI App 39. [Yes, there is authority that allocution is a constitutional not merely statutory right, but the issue is hardly settled and there is substantial reason to think it purely statutory, under § 972.14, so there is an analogy to be made.] More to the point, perhaps, Hines is merely the last in a line of cases that brought reconfinements closely into line with sentencing procedure. It is quite possible that the court of appeals now seeks to hold back that tide, which would indeed make Hines last in that line of cases. (And, yes, at least in its realm the court does have power denied Canute the Great.) Hines had no difficulty assigning a right of allocution to reconfinement, given “that a reconfinement hearing is “closely akin” to a sentencing hearing,” ¶18, citing State v. John C. Brown, 2006 WI 131, ¶28. And that, in turn, makes the court of appeals’ underlying analysis suspect. Specifically: the court presently stresses (¶11) its decision in Brown, 2006 WI App 44, ¶17, without taking account of subsequent analysis by the supreme court. It is not exactly apparent that the supreme court categorically approved ¶17, which rested on the idea “that a reconfinement hearing is simply an extension of the original sentencing proceeding, and thus, the trial court need not address all relevant factors”; the supreme court held (¶21) that, at least where a different judge presides over reconfinement, “there is no continuum.” Like effect: State v. Twaun L. Gee, 2007 WI App 32. In sum, there might—or might not—be adequate support for the court’s statutory construction analysis, but the court’s analysis may well presage resistance to further absorption of sentencing concepts into confinement.