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Sentencing court’s failure to consider presumptive mandatory release date isn’t a new factor

State v. Gerald D. Taylor, 2019AP1244-CR, District 1, 12/15/20, (not recommended for publication); case activity (including briefs)

In 1999, a court imposed two, consecutive, 30-year indeterminate sentences on Taylor for child sexual assault. Accounting for the parole system in place, the court told Taylor he would be eligible for parole after serving one-quarter (15 years) of his sentence, and he could end up serving two-thirds (40 years), which is when he would reach his mandatory release date. Taylor moved for a sentence modification because the court didn’t realize his sentence had a presumptive release date (not a mandatory release) which results in a lengthier confinement.

The State argued, and the circuit court agreed, that Taylor’s motion for sentence modification was not ripe for review because Taylor had not yet served 60 years of his total 60-year sentence. The court of appeals reversed on this point.

¶10 The legal issues that Taylor raises are readily apparent in the record; there is no reason to require Taylor to wait until he has served forty years to contest his sentence composition under the new factor framework. See State v. Dawson, 2004 WI App 173, ¶24, 276 Wis. 2d 418, 688 N.W.2d 12. It would be unfair to Taylor to require him to complete the term of his sentence before allowing him to appeal an unfair imposition. See id.; McCleary v. State, 49 Wis. 2d 263, 276, 182 N.W.2d 512 (1971) (“The sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” (citation omitted)).

However, the court of appeals affirmed on the merits. It rejected Taylor’s argument that the circuit court was unaware that 1st-degree child sexual assault is a “serious felony” under §302.11(1g)(a)2, which permits the parole commission to deny him presumptive mandatory release for the reasons in §302.11(1g)(b)1-2. Opinion, ¶13.

It held that circuit courts are presumed to know the law. Opinion, ¶15.  They are not required to use magic words like “presumptive mandatory release.” Moreover, the record showed that the court considered the crime serious because it described Taylor as having “Dr. Jekyll and Mr. Hyde behavior” and described his conduct as “an act of terrorism.” Opinion, ¶16.

According to the court of appeals, the circuit court was not concerned with the endpoint of Taylor’s sentence. It was focused on ensuring that he was in prison a minimum amount of time for rehabilitation, protection of the community, and punishment. Taylor’s parole date was not “highly relevant” to the sentence the court imposed and thus did not qualify as a new factor warranting a sentence modification under Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).  Opinion, ¶18.



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