State v. Charles C. Downing

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SUPREME COURT OF WISCONSIN Case No.: 95-0207-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. John C. Setagord, Defendant-Appellant-Petitioner. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 204 Wis. 2d 275, 554 N.W.2d 683 (Ct. App. 1996) UNPUBLISHED Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: July 1, 1997 March 6, 1997 Circuit Dane Robert R. Pekowsky Bablitch, J., dissents (opinion filed) Abrahamson, C.J. and Bradley, J. joins Not Participating: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Charles G. Curtis, Jr. And Foley & Lardner, Madison and oral argument by Charles G. Curtis, Jr. For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. SUPREME COURT OF WISCONSIN Case No.: 96-1264-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. Charles C. Downing, Defendant-Appellant. ON BYPASS FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: July 1, 1997 March 6, 1997 Circuit Dane Robert R. Pekowsky Bablitch, J. dissents (opinion filed) Abrahamson, C.J. and Bradley, J., joins Not Participating: ATTORNEYS: For the defendant-appellant there were briefs and oral argument by Robert T. Ruth, Madison. For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. Case Nos. 95-0207-CR 96-1264-CR NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 95-0207-CR STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUL 1, 1997 v. Marilyn L. Graves Clerk of Supreme Court Madison, WI John C. Setagord, Defendant-Appellant-Petitioner. Case No. 96-1264-CR State of Wisconsin, Plaintiff-Respondent, v. Charles C. Downing, Defendant-Appellant. No. Appeals. 95-0207-CR: Dane of a decision of the Court of Affirmed. No. 96-1264-CR: for REVIEW County, APPEAL from an order of the Circuit Court Robert R. Pekowsky, Affirmed. 1 Circuit Court Judge. Case Nos. 95-0207-CR 96-1264-CR ¶1 JANINE hostage-taking P. GESKE, and J. For attempted their jailbreak, roles John in C. a 1991 Setagord (Setagord) and Charles C. Downing (Downing) received mandatory life sentences, with parole eligibility dates far beyond their respective anticipated life spans. court of appeals' decision Setagord seeks review of a affirming the circuit court's imposition of a parole eligibility date of October 21, 2091. On a motion to bypass the court of appeals, Downing appeals the circuit court's imposition of a parole eligibility date of October 21, 2177. ¶2 Both defendants argue that Wis. Stat. § 973.014(1)(b) does not authorize the circuit court to effectively deny parole by setting a anticipated parole eligibility lifetime. We date conclude beyond that § a defendant's 973.014(1)(b) unambiguously grants the circuit court discretion to impose a parole eligibility date beyond a defendant's expected lifetime. We also conclude that the circuit court did not erroneously exercise its discretion in setting respective parole eligibility dates. Setagord and Downing's Accordingly, we affirm the court of appeals' decision in the Setagord case, and affirm the circuit court's order imposing sentence in the Downing case. FACTS AND PROCEDURAL HISTORY ¶3 The relevant facts are not in dispute. Setagord and Downing unsuccessfully attempted to escape from the Dane County Jail with a third inmate, Juan 2 Ruiz, on October 20, 1991. Case Nos. 95-0207-CR 96-1264-CR Setagord, Downing and Ruiz took Deputy Julie McReynolds hostage during a jailbreak attempt. During the seizure, both Setagord and Downing struck McReynolds. feet. She was tied up by her hands and Setagord threatened several times to kill McReynolds, and also threatened released after to break thirteen her legs. hours of Deputy McReynolds confinement, and sustaining a cut to the head, bruises and a knee injury. was after During the early part of the escape attempt, Downing struck another deputy several times with a cribbage board. ¶4 The State filed a criminal complaint that charged Downing, Setagord and Ruiz with the Class A felony of taking a hostage, as a party to a crime, in violation of Wis. Stat. §§ 940.3051 and 939.05; with conspiracy to escape, in violation of Wis. Stat. §§ 946.42(3)(a) and 939.31; and with battery to a police officer in violation of Wis. Stat. § 940.20(2). they were repeat offenders, Setagord and Downing Because were also charged under the penalty enhancement provision of Wis. Stat. § 939.62(1). ¶5 Setagord and Downing each reached plea agreements with the State following a half day of trial testimony on May 19, 1992. Setagord entered a plea of no contest to the hostage1 As the court of appeals correctly noted, Wis. Stat. § 940.305(2) provides that if a person taken hostage is released without bodily harm before the actor's arrest, the crime is a Class B felony. Setagord and Downing were charged with a Class A felony because they inflicted bodily harm on Deputy McReynolds. The penalty for a Class A felony is life imprisonment. Wis. Stat. § 939.50(3)(a). 3 Case Nos. 95-0207-CR 96-1264-CR taking charge and guilty to the other two charges in return for dismissal charge. of the repeater allegation on the hostage-taking Downing entered a plea of no contest to the charges in return for dismissal of the repeater allegation on the hostagetaking charge. ¶6 On August 28, 1992, the Circuit Court for Dane County, Robert R. Pekowsky, conducted a sentencing hearing for Setagord. The circuit court sentenced Setagord to life in prison without parole for the hostage-taking charge, and to 11 years for each of the other two charges. life without parole. The Setagord appealed the sentence of court of appeals reversed that sentence,2 holding that Wis. Stat. § 973.014 (1991-92) did not authorize a circuit court imprisonment without parole. to impose a sentence of life The court held that the statute allows the circuit court only two options, either to determine parole eligibility pursuant to the standards under Wis. Stat. § 304.06(1),3 or to set an alternative parole eligibility date of 2 State v. Setagord, 187 Wis. 2d 340, 342, 523 N.W.2d 124 (Ct. App. 1994)(hereinafter Setagord I). 3 Wis. Stat. § 304.06(1)(1991-92) provides in pertinent part as follows: Paroles from state prisons and house of correction. (b) Except as provided in sub. (1m) or s. 161.49(2), 302.045(3) or 973.032(5), the parole commission may parole an inmate of the Wisconsin state prisons or any felon or any inmate of the Wisconsin state prisons or any felon or any person serving at least one year or more in the Milwaukee county house of correction or a county reforestation camp organized under s. 303.07, when he or she has served 25% of the 4 Case Nos. 95-0207-CR 96-1264-CR its own. 187 Wis. 2d at 344. On remand for resentencing, the circuit court imposed a parole eligibility date of October 21, 2091. That date was one hundred years from the date of the crimes Setagord committed, as requested by the State.4 Setagord again appealed. ¶7 The eligibility court date. of appeals State v. upheld Setagord, Setagord s No. parole 95-0207-CR, unpublished slip op. (Wis. Ct. App. July 11, 1996)(hereinafter Setagord II). The court held that Wis. Stat. § 973.014(1)(b) permits a circuit court to set a parole eligibility date beyond a person's expected lifetime. Setagord II at 10-11. Because the court found the sentencing statute ambiguous, the appellate court looked to legislative history to discern the legislative intent. Id. at 5. The court found that this history supported the State's view that the circuit court may effectively deny parole by setting a parole eligibility date 100 years in the sentence imposed for the offense, or 6 months, whichever is greater. Except as provided in s. 973.014, the parole commission may parole an inmate serving a life term when he or she has served 20 years, as modified by the formula under s. 302.11(1) and subject to extension using the formulas under s. 302.11(2). The person serving the life term shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155(4). The secretary may grant special action parole releases under s. 304.02. The department or the parole commission shall not provide any convicted offender or other person sentenced to the department's custody any parole eligibility or evaluation until the person has been confined at least 60 days following sentencing. (c) 4 At the resentencing, the circuit court also imposed five years on Count 2 consecutive to Count 1, and 11 years on Count 3 consecutive to each other and to Count 1. 5 Case Nos. 95-0207-CR 96-1264-CR future. Id. at 9. The court of appeals also held that the circuit court did not erroneously exercise its discretion in imposing the 100-year parole eligibility date. Id. at 23. Setagord petitioned for review by this court. ¶8 Like Setagord, Judge Pekowsky. Downing was initially sentenced by At the January 19, 1993, sentencing hearing, the State asked that "Mr. Downing be sentenced to serve the rest of his life in prison with no opportunity for parole." circuit court sentenced Downing to life imprisonment The without parole on the hostage-taking charge, to be served consecutively to the sentences he was already serving. In addition, the court sentenced Downing to three consecutive five-year sentences on the remaining charges. Downing appealed, arguing that the circuit court erred in imposing a life sentence without parole. The court of appeals reversed, and remanded for resentencing based on its decision in Setagord I. State v. Downing, unpublished slip op. (Wis. Ct. App. May 18, 1995). ¶9 The circuit court conducted a resentencing hearing on November 8, 1995. At that time, the State asked the court to ensure that Downing never again be a free man. The circuit court agreed to follow the State's recommendation, and sentenced Downing to life imprisonment with a parole eligibility date of October 21, 2177, on the hostage-taking charge. The circuit court also reimposed the five-year consecutive sentences on the other charges. Downing again appealed, arguing that Wis. Stat. 6 Case Nos. 95-0207-CR 96-1264-CR § 973.014(1)(b) did not authorize beyond his expected lifetime. a parole eligibility date We granted Downing's petition to bypass the court of appeals. ¶10 The principal question presented by both Setagord and Downing involves interpretation of a statute, a question of law that we review de novo. State v. Eichman, 155 Wis. 2d 552, 560, 455 N.W.2d 143 (1990). The purpose of statutory interpretation is to discern the intent of the legislature. Id. first consider the language of the statute. To do so, we If the language of the statute clearly and unambiguously sets forth the legislative intent, we apply that intent to the case at hand and do not look beyond the statutory language to ascertain its meaning. Kelley Co., Inc. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68 (1992); UFE Inc. v. LIRC, 201 Wis. 2d 274, 281-82, 548 N.W.2d 57 (1996). ¶11 Setagord contends that Wis. Stat. § 973.014(1)(b) is ambiguous, and when properly parole eligibility date. unambiguous, and requires an earlier Downing takes a different approach, but reaches the same result. is construed, Downing contends that the statute clearly requires meaningful parole eligibility. The State asserts that the statute is unambiguous. Under the include a State's parole reading, the eligibility term date expected lifetime. 7 "any beyond later the date" can defendant's Case Nos. 95-0207-CR 96-1264-CR ¶12 A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably wellinformed persons. Wagner Mobil, Inc. v. City of Madison, 190 Wis. 2d 585, 592, 527 N.W.2d 301 (1995). However, a statute is not rendered ambiguous merely because the parties disagree as to its meaning. scope, Id. history, statute in If a statute is ambiguous, we look to the context, order to subject ascertain matter, and legislative object intent. of the However, resort to legislative history is not appropriate in the absence See Cynthia E. v. LaCrosse County of a finding of ambiguity. Human Services Dep't, 172 Wis. 2d 218, 229, 493 N.W.2d 56 (1992). ¶13 These cases present a question of first impression. We upheld Wis. Stat. § 973.014(1)(b) against a constitutional challenge in State v. Borrell, 167 Wis. 2d 749, 759, 482 N.W.2d 883 (1992). Now we are asked to determine whether the legislature intended to authorize a sentencing court to set a parole eligibility date beyond a defendant's expected lifetime. If we conclude that the statute authorizes parole eligibility determinations that afford no possibility of parole, Setagord and Downing ask that we then conclude that the sentencing court erroneously exercised its discretion in setting eligibility dates. STATUTORY INTERPRETATION 8 their parole Case Nos. 95-0207-CR 96-1264-CR ¶14 We begin with the premise that sentencing is a matter of legislative policy. In Matter of Judicial Administration: Felony Sentencing Guidelines, 120 Wis. 2d 198, 203, 353 N.W.2d 793 (1984). The legislature decides whether and to what degree the sentencing court's discretion should be limited. 2d at 203. 120 Wis. The legislature conveys its intent as to sentencing policy, and the extent of judicial sentencing discretion, by enacting sentencing statutes. At the time Setagord and Downing took Deputy McReynolds hostage, the sentencing statute at issue here provided: . . . the court shall make a parole eligibility determination . . . (b) . . . Under this subsection, the court may set any later date than that provided in s. 304.06(1) . . . Wis. Stat. § 973.014(1). ¶15 (Emphasis added). Through this provision the legislature has delegated to the sentencing court the power to make a determination of parole eligibility by setting a minimum date for a convicted felon's parole eligibility. ¶16 The statute does not set, however, a maximum date for a convicted felon's parole eligibility. The only qualification expressed by the term "any later date" is a minimum eligibility date. We conclude that the only reasonable reading of the plain language of the statute is that the legislature unambiguously set a minimum, but not a maximum, date for parole eligibility. ¶17 statute Setagord is contends, ambiguous, and, however, taking 9 that into this account sentencing rules of Case Nos. 95-0207-CR 96-1264-CR statutory interpretation and construction, must be read to authorize a parole eligibility date reasonably less than the functional equivalent of life without parole. ¶18 Setagord first makes a comparative argument, juxtaposing Wis. Stat. § 973.014(1)(b) against other sentencing statutes. He points out that other statutory provisions expressly provide for life sentences without parole in different circumstances Setagord, than the those present legislature could here. not Thus, have according intended to to allow courts to impose an "indirect" sentence of life without parole under Wis. Stat. § 973.014(1)(b). Section 973.014(2)(1993-94), for example, expressly provides that "persistent repeaters" are subject to life imprisonment "without possibility of parole." The more recently enacted Wis. Stat. § 973.014(1)(c)5 expressly authorizes the circuit court to declare that a defendant sentenced to life imprisonment "is not eligible for parole." Setagord argues that legislature intends parole, does language. it so these to provisions authorize directly a show sentence through plain that of and when life the without unambiguous Setagord does not argue that these other provisions 5 1995 Wis. Act 48, § 5, codified as Wis. § 973.014(1)(c), and effective August 31, 1995, provides: The person is not eligible for parole. This paragraph applies only if the court sentences a person for a crime committed on or after the effective date of this paragraph. 10 Stat. Case Nos. 95-0207-CR 96-1264-CR expressly preclude a sentence of parole eligibility under Wis. Stat. § 973.014(1)(b) beyond the defendant's expected lifetime. ¶19 Setagord also points to two federal court decisions that found sentencing statutes ambiguous. In United States v. Fountain, 840 F.2d 509 (7th Cir.), cert. denied, 488 U.S. 982 (1988),6 the court considered a defendant's challenge to a 150year sentence for conspiracy eligibility after 50 years. parole. The court first a life sentence commit was murder, with parole The sentence effectively denied considered applicable sentencing statues. statute, to the requirements of the Under the first degree murder mandatory. 18 U.S.C. Under the plain language of the conspiracy statute, § 1111. 18 U.S.C. § 1117, the trial court could impose imprisonment "for any term of years or for life." 840 F.2d at 517. The reviewing court concluded, however, that when juxtaposed with other sentencing statutes, that "plain" language lost its clarity. 6 Id. Another We recognize that the Fountain decision reflects one side of a split among the federal circuits on the question of the effect of 18 U.S.C. § 4205(b) in conjunction with sentences under 18 U.S.C. § 1117. United States v. Fountain, 840 F.2d 509, 518-19 (7th Cir. 1988). Setagord also cites to Chief Judge Posner's concurrence in United States v. Prevatte, 66 F.3d 840 (7th Cir. 1995) in support of his position. Chief Judge Posner noted that if a judge used a sentence of a term of years to imprison a defendant for his natural life, such a sentence would circumvent the federal statute requiring that a jury recommend a life sentence. Id. at 846-47. The Prevatte holding, that the district court would have to consider the defendant's life expectancy, id. at 843-44, and Chief Judge Posner's concurrence, which in any event are not binding on this court, are distinguishable in that parole had been abolished in the federal penal system, and the Wisconsin legislature has not delegated the authority to recommend life sentences to juries. 11 Case Nos. 95-0207-CR 96-1264-CR statute provided for parole eligibility after one-third of the sentence had been served, "or after serving ten years of a life sentence or of a sentence over thirty years." term provision and the parole When the sentence eligibility provision were juxtaposed, the court concluded that the phrase "any term of years" did not unambiguously mean any amount of years less than the age of the universe. Rather, the court interpreted that phrase to mean a span of years less than the defendant's life. Id. at 517-18. ¶20 Cir. In United States v. Martin, 63 F.3d 1422, 1434 (7th 1995), the court held that where a statutory scheme expressly deprives a court of the possibility of imposing a life sentence, it is an abuse of discretion for the court to impose a life sentence by sentencing the defendant to a term of years that exceeds his or her life expectancy. ¶21 Neither federal case cited by Setagord persuades us that Wis. Stat. § 973.041(1)(b) is not clear on its face, nor that it must be read to be limited to a term of years less than the convicted felon's life expectancy. The statute in Fountain openly contained a maximum, i.e., "any term of years or life." As we concluded above, in enacting Wis. Stat. § 973.014(1)(b), our legislature restriction on determination. included the In only a sentencing effect, the under this statute is open-ended. 12 minimum, and court's parole range of not a maximum eligibility sentences permitted Case Nos. 95-0207-CR 96-1264-CR ¶22 to the Neither the facts nor the law in Martin are analogous cases before us. In Martin, the statute precluded the court from imposing a life sentence. route to the same result was therefore improper. expressly An indirect Here, however, the legislature has not expressly precluded courts from imposing an effective life sentence on persons such as Setagord and Downing. ¶23 The intent of the Wisconsin legislature expressed in this statute thus stands in contrast to Congress' express intent underlying the federal statute at issue in Martin. By enacting Wis. Stat. § 973.014(1)(b), our legislature did not expressly deprive sentencing courts of the authority to impose a parole eligibility date that exceeds the person's life expectancy. Instead, the legislature provided that "the court shall make a parole eligibility determination." In making determination, the sentencing court has two options. that The first is to set a parole eligibility date in accordance with Wis. Stat. § 304.06(1). The second option is to set any later date than the date authorized by Wis. Stat. § 304.06(1). It is clear from the face of the statute that the legislature established a floor, and not a ceiling, to the court's authority to make a parole eligibility determination. ¶24 "any" Setagord next makes an argument interpreting the term in § 973.014. the context of the other language in Wis. Stat. Relying upon Sutherland on Statutes and Statutory 13 Case Nos. 95-0207-CR 96-1264-CR Construction, 7 Setagord contends that "any" may have a diversity of meanings, and consequently "its meaning in a given statute depends upon the context and the subject matter of the statute." The State turns the context argument around, asserting that the context of limitations the statute are imposed here on makes clear the parole essentially agree with the State. that no eligibility temporal date. We The subject matter of the statute is the court's authority to make a parole eligibility determination for persons sentenced to life imprisonment. In the context of this statute, the phrase, "any later date," is a temporal restriction on the determination eligibility portion of the sentence. of the parole One temporal restriction on that determination, the minimum eligibility date, has already been set by the legislature. The legislature did not set a maximum eligibility date, leaving that to the sentencing court's discretion. ¶25 In a decision issued after these cases were argued, we considered another statutory use of the term any. Sweat, 208 Wis. 2d 409, 561 N.W.2d 695 (1997). analyzed language in the restitution State v. In that case we statute, Wis. Stat. § 973.20, which provides that "any defense available in a civil action" may be used to bar individual crime victims' claims for restitution. Id. at 413. We said that the term "any" on its 7 2A Norman J. Singer, Sutherland on Statutes and Statutory Construction, § 46.07, p. 153 (5th ed., 1992 revision). 14 Case Nos. 95-0207-CR 96-1264-CR own is unequivocal, but observed that the term "any defense" as used in that statute was not defined. Id. at 417. Moreover, because the language of the statute was ambiguous when viewed in light of the statute as a whole, we examined the scope history, context, subject matter, and purpose of the statute. When we view the term "any later date" in light of the statute as a whole, no clouds of ambiguity appear. The statute as a whole contains only one temporal restriction. The statute as a whole does not impose an outside limitation on the phrase "any later date." ¶26 reads We next consider petitioner Downing's arguments. the opportunity statute for to require conditional during his or her lifetime. that release, a or defendant parole have He an eligibility, Downing contends that "any later date" must be viewed in the context of another phrase in that same provision, "[t]he person is eligible for parole." Downing asserts that a plain reading of the statute commands that a realistic opportunity for parole be maintained in the setting of a parole eligibility effectively graft the date. phrase, lifetime," onto the statute. have added that phrase. ¶27 Downing Downing's "within plain the reading person's would expected Undeniably, the legislature could It did not. additionally suggests that there is a violation of the separation of powers doctrine if we engage in 15 Case Nos. 95-0207-CR 96-1264-CR this plain reading of the statute and allow the sentences here to stand. We disagree. ¶28 A person convicted of constitutional right to parole. a crime has no legal or Borrell, 167 Wis. 2d at 764. Simply because the legislature has provided the possibility of parole creates "no more than a mere hope that the benefit will be obtained." Id. at 771-72 (citations omitted). Thus, parole is a statutory privilege, and not a constitutional right. Borrell we concluded that "the court's authority under In sec. 973.014 to determine the parole eligibility date of a person convicted and sentenced to life imprisonment does not encroach upon or unduly burden the executive branch's authority to grant pardons, commute sentences, or grant parole." 770. 167 Wis. 2d at The Parole Board's power to grant parole release is not initiated until eligibility Borrell the date. that the prisoner Id. at Parole reaches 770. We Board's or satisfied authority release is not circumscribed by § 973.014. ¶29 his to her parole ourselves grant parole Id. at 770. It is true that the Borrell court also stated that the court does not have power over the actual release decision. But by in recognizing that the legislature can deny Id. parole eligibility, the court affirmed that there is no separation of powers violation when a branch other than the executive denies parole eligibility. the parole eligibility The Borrell court also pointed out that determination 16 by the court in no way Case Nos. 95-0207-CR 96-1264-CR prevents the governor from granting a pardon or from commuting the sentence. ¶30 Id. We have previously considered constitutional challenges to this statute, including a separation of powers challenge. Borrell, 167 Wis. 2d at 762. statutory construction. We did not engage in Instead, we reviewed the plain language of the statute to first consider whether this provision violated the separation of powers doctrine. 167 Wis. 2d at 766-67. From that plain language, we discerned a legislative intent to allow the sentencing court to use its discretion in setting a parole eligibility date circumstances later than warrant. Id. the at statutory 767. We minimum where the concluded that the legislature acted in such a manner because it realized that the sentencing court is in a better particular facts and circumstances defendant. Id. position of each to case assess and of the each We invoke Borrell's analysis here, and hold that a plain reading of Wis. Stat. § 973.014(1)(b) to include authority to impose a parole eligibility date beyond a defendant's expected lifetime does not violate the separation of powers doctrine. ¶31 Finally, both Setagord and Downing contend that if we find the statute ambiguous, and Setagord urges that we must, we should observe the Rule of Lenity and construe the statute in their favor. The Rule of Lenity only comes into play after two conditions are met. First, we must determine that the penal 17 Case Nos. 95-0207-CR 96-1264-CR statute is ambiguous. Second, we must be unable to clarify the intent of the legislature by resort to legislative history. See State v. Morris, 108 Wis. 2d 282, 289, 322 N.W.2d 264 (1982); State v. Wilson, 77 Wis. 2d 15, 28, 252 N.W.2d 64 (1977). Because we conclude that Wis. Stat. § 973.014(1)(b) is plain and unambiguous on its face, the Rule of Lenity does not apply here.8 ¶32 We recognize that the court of appeals in Setagord II determined that the statute was ambiguous. respect for the court of appeals' While we have due analysis, a division of judicial authority over the proper construction of a statute does not, ipso facto, render it ambiguous. Reno v. Koray, 115 S. Ct. 2021, 2029 (1995)(ruling that Bail Reform Act of 1984 is not ambiguous for purposes of lenity merely because circuit courts split over its construction). EXERCISE OF DISCRETION IN SENTENCING ¶33 permits Because we the circuit conclude court to that set Wis. a Stat. parole § 973.014(1)(b) eligibility date beyond the person's expected lifetime, we consider the second 8 Nor do we consider extrinsic aids under a plain language interpretation. Nonetheless, we note that our interpretation of Wis. Stat. § 973.014(1)(b) is shared by authors Walter Dickey, David Schultz, and James L. Fullin, Jr. in their article, The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323. Referring to 1987 Wisconsin Act 412 which created Wis. Stat. § 973.014, the authors concluded that "legislation separate from the homicide revision introduced a new sentencing option for all crimes carrying a life sentence: The sentencing judge may set parole eligibility at any period of time in excess of the regular eligibility term, as a practical matter, giving the judge the power to deny parole eligibility altogether." Id. at 1334. 18 Case Nos. 95-0207-CR 96-1264-CR question raised: Did the sentencing court erroneously exercise its discretion by setting parole eligibility dates for Setagord and Downing 100 years or more after the date of their crimes? ¶34 The primary factors a court considers in fashioning a sentence are the gravity and nature of the offense, including the effect on the victim, the character of the offender, including his or her rehabilitative needs and the interests of deterrence, and the need to protect the public. State Carter, 208 Wis. 2d 142, 156, 560 N.W.2d 256 (1997). State v. Sarabia, (1984).9 The 118 Wis. sentence 2d imposed 655, 673-74, should 348 amount of custody consistent with those factors. See also N.W.2d represent v. the 527 minimum Borrell, 167 Wis. 2d at 764. ¶35 imposing The a factors that sentence are a the sentencing same factors determination of parole eligibility. 774. Parole eligibility date court that considers influence 2d whether at 778. there has Thus, been we determinations an limit the Borrell, 167 Wis. 2d at are reviewable under the same standard as are other sentencing decisions. Wis. when our erroneous 167 review to determining exercise of discretion. McCleary v. State, 49 Wis. 2d 263, 278, 182 N.W.2d 512 (1971); 9 Other relevant factors include the defendant's age, personality, social traits, remorse, repentance, cooperativeness, educational level, employment background, degree of culpability, and demeanor at trial. State v. Killory, 73 Wis. 2d 400, 408, 243 N.W.2d 475 (1976). 19 Case Nos. 95-0207-CR 96-1264-CR State v. Iglesias, 185 Wis. 2d 117, 517 N.W.2d 175, cert. denied, 513 U.S. 1045 (1994). ¶36 The court of appeals, applying the correct standard, conducted a thorough examination of the sentencing factors articulated by the circuit court and applied to the facts of Setagord's crime. Slip op. at 15. The court of appeals upheld the circuit court's exercise of discretion in setting Setagord's parole eligibility date. of the court of We adopt the analysis and conclusion appeals that the circuit court did not erroneously exercise its discretion when it resentenced Setagord to life imprisonment, with a parole eligibility date of October 21, 2091.10 ¶37 We intermediate next turn review, to we Mr. Downing. consider his Without benefit of assertion that the resentencing court erroneously exercised its discretion. 10 We note, however, that as part of its review, the court of appeals relied on State v. Solles, 169 Wis. 2d 566, 569, 485 N.W.2d 457 (Ct. App. 1992), for the limitation that "when resentencing a defendant the trial court must consider only the circumstances existing when defendant was first sentenced." Earlier this term we overruled Solles. State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997). We held in Carter that a circuit court should, when imposing sentence at a resentencing hearing, consider all relevant information about the defendant, including information about events and circumstances either that the sentencing court was unaware of at the initial sentencing or that occurred after the initial sentencing. 208 Wis. 2d at 158. Based on our review of the resentencing hearing transcript, we conclude that the circuit court met the requirements of Carter, and that the court considered all the relevant information about Setagord's conduct that occurred after the initial sentencing. 20 Case Nos. 95-0207-CR 96-1264-CR ¶38 We generally afford sentencing decisions a strong presumption of reasonableness because the circuit court is best suited to consider the defendant s demeanor. the defendant has relevant of and assess Borrell, 167 Wis. 2d at 781-82. the burden to unreasonable or unjustified. exercise factors discretion when show Id. a that the the Thus, sentence was We will find an erroneous sentence is so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable persons concerning what is right and circumstances. Sarabia, 118 Wis. 2d at 673. proper under the Finally, when the legislature has granted the sentencing court the authority to impose sentences within a certain range, the legislature has given the court discretion to determine where in that range a sentence should fall. State v. Harris, 119 Wis. 2d 612, 624, 350 N.W.2d 633 (1984). ¶39 Downing asserts that "the trial court continued to pile on incarceration time after it conceded that Downing cannot possible live to serve the excessive time." at 31. Petitioner's Brief Downing thus argues that the length of imprisonment imposed for the hostage-taking charge signals a disregard for the relevant sentencing factors. We disagree, and conclude that the court here properly considered and articulated the relevant factors when it resentenced Downing. 21 The sentence imposed is Case Nos. 95-0207-CR 96-1264-CR not so unusual, or disproportionate, as to shock public sentiment. ¶40 At the resentencing hearing, the State asked the court to impose a sentence of life imprisonment, consecutive to the total 129 years imposed earlier for other charges. The State also specifically requested a parole eligibility date of October 21, 2177. The State calculated Downing's mandatory release date on the prior sentences - after 86 years - and then added 100 years from that point. ¶41 Next, defense counsel reviewed with the court the presentence investigation report, and the defendant's own statements as to the events on the day of the hostage-taking. Defense counsel also offered two letters from the Department of Corrections and two inmate performance evaluations. these documents Downing's were original generated sentencing in the and interim the All four of between November, Mr. 1995, resentencing hearing. ¶42 After receiving those documents, and the comments of counsel, the court revisited the events of the crime. The court adopted its comments made at the original sentencing.11 11 At the original sentencing, the court considered, among other things, the "lengthy and extremely thorough" pre-sentence report. In considering the gravity of the offense, the court noted that Downing participated in the hostage-taking as part of a planned escape from jail at a time when he was going through a trial on very serious charges. The court also considered that the crime of hostage taking was "at the peak" of seriousness. 22 Case Nos. 95-0207-CR 96-1264-CR ¶43 taking The court then weighed the gravity of the hostageoffense, its seriousness in part reflected by the statutory sentencing option of life imprisonment. ¶44 The court made further comments on Mr. Downing's character, finding that he demonstrated no remorse, and posed a continuing Corrections risk to society. letters and Considering positive the Department evaluations, the of court concluded that Downing could only perform at that level within a locked facility. Referring to factors considered at both hearings, the court then stated, "I knew of almost no redeeming values. I know of very few now. I know of nothing that would cause me to stray from my earlier views about your character." ¶45 court Finally, weighing described the the terror public that protection Downing factor, brought to the the community, the state, and employees of the jail building during the hostage-taking. In light of all those considerations, the court followed the State's sentence recommendation. ¶46 The record, as summarized above, demonstrates that the judge here considered the comments of both counsel and the facts At the original sentencing, the court also considered Downing's character, outlining a long and serious criminal history. The court found Downing to be one of the most antisocial persons he had encountered, and that he demonstrated no likelihood to change his behavior for the better. The court also considered Downing's character in light of the need to protect the public. The court concluded that Downing was a man "who doesn't care about hurting people. He will do it at will whenever, for whatever purpose, to whomever if they are in his way." 23 Case Nos. 95-0207-CR 96-1264-CR of the specific crime. The judge applied each of the pertinent sentencing factors, and explained the reasons for its parole eligibility determination. Based on all of the factors considered and articulated by the sentencing court, we disagree with Downing's contention that the sentence imposed could not have been directed at any of the relevant sentencing factors. ¶47 This is true despite the judge's remarks that "It sounds silly. It sounds far-fetched, that you have already been handed 129 consecutive years by other courts, that indeed I would add another 100, but that is what I am going to do." Those remarks followed the court's recitation of the factors set out above, as well as a consideration of remarks by counsel. The fact that Downing already was serving a lengthy sentence for prior offenses did not automatically make the parole eligibility determination here unreasonable or unjustified. If we take Downing's argument that a parole eligibility date must be within a defendant's expected lifetime to its logical conclusion, sentencing courts would have to impose diminishing sentences for a defendant's subsequent "attainable parole date". Offenders who commit offenses, in order to preserve an See Petitioner Downing's Brief at 18. multiple crimes should not receive a sentencing "discount" due to the sheer volume of their crimes. See also 12 Wis. Stat. § 973.15(2)(a).12 Making an Wis. Stat. § 973.15(2)(a)(1993-94) provides: 24 attainable Case Nos. 95-0207-CR 96-1264-CR parole date the primary gauge of the reasonableness of a sentence disregards traditional sentencing factors. ¶48 little The or court no criminal clearly chance record and of considered that rehabilitation, his efforts to Downing based avoid on one showed his prior trial and sentencing by taking a jail deputy hostage in an escape attempt. Even Downing's counsel admitted that Downing's only relevant work history occurred while he was an inmate. ¶49 It is important to note that the reason for Downing's resentencing sentencing was not factors reasonable for the comments, that in the court particularly the first on court instance. resentencing those improperly concerning to weighed Thus, adopt it its Downing's attempt to leave the county jail at almost any cost. was prior ruthless The court was not unreasonable in focusing on the terror instilled in the community at large, as well among corrections workers, at the prospect of inmates holding deputies hostage under the threat of death. heavily These weigh Imposition October of 21, findings the a led public sentence 2177, is not the court, protection with so a and parole excessive on resentencing, deterrence factors. eligibility as to to shock date of public sentiment. Except as provided in par. (b), the court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously. 25 Case Nos. 95-0207-CR 96-1264-CR ¶50 Based on the plain language of the statute, we hold that Wis. Stat. § 973.014(1)(b) unambiguously allows the circuit court to impose a parole eligibility date beyond a defendant's expected lifetime, and that the specific parole eligibility dates set for petitioners Setagord and Downing do not constitute erroneous exercises of discretion by the circuit court. By the Court. The decision of the court of appeals is affirmed as to Setagord, and the order of the circuit court is affirmed as to Downing. 26 950207 and 961264wab ¶51 1992, WILLIAM A. BABLITCH, J. (Dissenting). John parole. Setagord was sentenced to life in On August 28, prison without Setagord appealed, and the court of appeals concluded that Wis. Stat. § 973.014 (1991-92)13 clearly and unambiguously did not permit the circuit court to impose a sentence of life in prison without the possibility of parole for Setagord s crime. State v. Setagord, 187 Wis. 2d 340, 523 N.W.2d 124 (Ct. App. 1994). Accordingly, the court of appeals reversed the sentence and remanded for resentencing. Upon remand, the circuit court sentenced Setagord to life in prison with a parole eligibility date of October 21, 2091ï£§in effect, a sentence of life in prison without the possibility of parole. the majority circuit elevates courts that, form if over you By affirming this sentence, substance.14 don t use the It tells words the without possibility of parole, even though that is the effect, we will approve. ¶52 In essence, the majority concludes the legislature deliberately intended to create a classic, albeit cynical, good news, bad news situation for the defendant when it drafted the 13 Unless otherwise indicated, future statutory references are to the 1991-92 volume. 14 Frequently the wisest analysis can be found in the simple adage. If something walks like a duck, quacks like a duck and swims, covering it with chicken feathers will not make it into a chicken. Boyd v. Layher, 427 N.W.2d 593, 596 (Mich. App. 1988)(citation omitted). Likewise, Setagord s sentence is a sentence of life in prison without parole; calling it a term of years sentence with a parole eligibility date far beyond life expectancy cannot alter that simple fact. 1 950207 and 961264wab mandate the court shall make a parole eligibility determination . . . Wis. Stat. § 973.014. you re eligible for parole. The good news for the defendant: The bad news: it won t be during your lifetime. I conclude the legislature did not intend Wis. Stat. to § 973.014 manner. ¶53 be used by the sentencing judge in this Accordingly, I dissent. When interpreting this statute, one overarching principle must guide the court s analysisï£§the legislature sets sentencing policy. It is well settled that the court s sentencing power is derived solely from the statutes and . . . the courts must sentences. N.W.2d 96 adhere State v. to statutory Sepulveda, (1984)(footnote 119 omitted). limits Wis. In when 2d fashioning 546, other 553, 350 words, the sentencing court can only impose a sentence if that sentence is authorized by authorized by the the legislature. statute, By the imposing circuit a court sentence not usurps the legislature s authority to set sentencing policy. ¶54 any The majority concludes that by its use of the phrase later date in Wis. Stat. § 973.014, the legislature unambiguously granted the circuit court discretion to impose a parole eligibility expectancy. date far beyond even Methuselah s life Apparently, even a parole eligibility date of 4001 or any other year would meet with the consent of the majority. The majority reaches this conclusion by ignoring a basic rule of statutory construction: A phrase must be defined within the context of the statute in which it is used. Pulsfus Farms v. Town of Leeds, 149 Wis. 2d 797, 804, 440 N.W.2d 329 (1989). 2 950207 and 961264wab ¶55 Ignoring this rule, the majority analyzes only one part of Wis. Stat. § 973.014: the court shall make a parole eligibility determination . . . (b) . . . Under this subsection, the court may set any later date than that provided in s. 304.06(1). Majority opinion at 9. However, at the time of Setagord s sentencing, § 973.014, provided: (1) Except as provided in sub. (2), when a court sentences a person to life imprisonment for a crime committed on or after July 1, 1988, the court shall make a parole eligibility determination regarding the person and choose one of the following options: (a) The person is eligible for parole under s. 304.06(1). (b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may set any later date than that provided in s. 304.06(1), but may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 304.06(1).15 (Emphasis added). ¶56 By analyzing just the underlined portion of the statute, without benefit of the context of the entire statute, the majority reaches an erroneous conclusion. ¶57 This court recently statutory interpretation. visited a similar problem of In State v. Sweat, 208 Wis. 2d 409, 561 N.W.2d 695 (1997), we interpreted the phrase any defense available in § 973.20(14)(b). a civil In action that case, as used in we held that Wis. any Stat. when modifying defense, though unambiguous when standing alone, was 15 Wis. Stat. § 973.014 was renumbered by 1993 Wis. Act 289, §11-12. As did the court of appeals, and as does the majority, I refer to the provisions of § 973.014 by the current numbering. 3 950207 and 961264wab ambiguous when read in conjunction with the statute as a whole. Sweat, 208 Wis. 2d 409. See also 2A Norman J. Singer, Sutherland s Statutory Construction § 46.07, p. 153 (5th ed., 1992) (the word any has a diversity of meanings . . . and its meaning in a given statute depends upon the context and the subject matter of the statute )(footnote omitted). ¶58 A statutory provision is ambiguous if reasonable minds could differ as to its meaning. Sweat, 208 Wis. 2d at 416. Here, the court concludes that any when modifying later date is unambiguous. read in And it isï£§when standing alone. conjunction with other provisions However, when in Wis. Stat. § 973.014, the phrase any later date is ambiguous. ¶59 One reasonable interpretation of the statute is that rendered by the majority that, essentially, any later date means any later date from here to eternity. Another reasonable interpretationï£§and an interpretation more in harmony with Wis. Stat. § 973.014 as a wholeï£§is that the phrase any later date means any later date, but not life imprisonment without parole because the statute states that the person is eligible for parole on a date set by the court or any later date within the average person s life expectancy. Because these interpretations can reasonably be drawn, the reasonable conclusion is that § 973.014 is ambiguous. ¶60 When a statute is ambiguous, statutory construction come into play. several rules of In construing Wis. Stat. § 973.014, these rules of construction indicate that the phrase 4 950207 and 961264wab any later date is more reasonably interpreted as any later date within the average person s life expectancy. ¶61 First, it is well-established that ambiguous, penal statutes such as Wis. Stat. § 973.014 should be interpreted to the defendant s benefit. In construing federal statutes, the federal courts apply the rule of lenity. 349 U.S. 81, 83. that penal Bell v. United States, This court applies a similar concept, stating statues are generally construed strictly to State v. Bohacheff, 114 Wis. 2d safeguard defendant s rights. 402, 417, 338 N.W.2d 466 (1983)(citation omitted). Thus, as Setagord argues, criminal penalties must be narrowly construed and any ambiguities in a penal statuteï£§including sentencing provisionsï£§must be resolved in favor of the defendant. See Strong v. C.I.R., Inc., 184 Wis. 2d 619, 628, 516 N.W.2d 719 (1994). State v. Christensen, 110 Wis. 2d 538, 546, 329 N.W.2d 382 (1983). See also State v. Morris, 108 Wis. 2d 282, 289, 322 N.W.2d 264 (1982)( in case of doubt concerning the severity of the penalty prescribed by the statute, the court will favor a milder penalty over a harsher one. . . . Since it is within the power of the lawmakers, the burden lies with them to relieve the situation of all doubts. )(citation omitted)); 3 Sutherland s Statutory Construction § 59.03 at 103 ( It is a well- established principle of statutory construction that . . . the more severe the penalty, and the more disastrous the consequence to the person subjected to the provisions of the statute, the more rigid will be the construction of its provisions in favor 5 950207 and 961264wab of such person and against the enforcement of such law. )(footnote omitted). ¶62 In sum, the burden lies with the legislature to enact a statute that clearly and unambiguously provides for the most severe criminal punishment available in Wisconsinï£§a sentence of life in prison without even the possibility of parole, and this statute does not clearly establish such an intent by the legislature. ¶63 Another fundamental supports this conclusion. rule of statutory construction Statutes are to be construed to avoid rendering any part of the statute meaningless or superfluous. State v. 201 Achterberg, (1996). That the Wis. 2d majority s 291, 299, 548 interpretation N.W.2d violates 515 this principle is most glaringly illustrated by the interplay of Wis. Stat. §§ 973.014(1)(b) and (2)(1993-94):16 in subsection sentence with expectancy, parole, why (1)(b) a i.e., would authorized parole life the in the eligibility prison legislature If any later date imposition date without have far the added of a life beyond life possibility of subsection (2) which specifically authorizes a life sentence without parole? Simply put, if the majority s interpretation of subsection (b) 16 1993 Wisconsin Act 289 amended Wis. Stat. § 973.014, renumbering the statute and adding the following provision: (2) when a court sentences a person to life imprisonment under s. 939.62(2m), the court shall provide that the sentence is without possibility of parole. 6 950207 and 961264wab is correct, subsection (2) is unnecessary. It is superfluous and meaninglessï£§a result that must be avoided. ¶64 A related canon of construction supports the conclusion that any later date does not give the circuit court the authority to impose a life sentence without parole: Where the legislature uses two different phrases . . . in two paragraphs in the same section, it is presumed to have intended the two phrases to have different meanings. County, 81 omitted). Wis. 2d 309, 318, 260 N.W.2d 515 Armes v. Kenosha (1977)(footnote See also Weber v. Town of Saukville, 209 Wis. 2d 214, 231, 562 N.W.2d 412 (1997). Since the legislature has used language in Wis. Stat. § 973.014(1)(c)(1995-96) and Wis. Stat. § 973.014(2)(1993-94) expressly authorizing life without parole sentences, its § 973.014(1)(b) effect. omission ought of to such be language given in substantive, Wis. Stat. meaningful The majority s reading strips the different statutory wordings of any real difference. ¶65 This is exactly the point of a recent decision by the Seventh Circuit in an analogous situation. The federal statutes involved in United States v. Martin, 63 F.3d 1422 (7th Cir. 1995), provided that a person guilty of arson, in which death resulted, shall be subject to imprisonment for any term of years, or to the death penalty, provided in § 34 of this title. or to life imprisonment Id. at 1432. as Section 34 provided that a person shall be subject to the death penalty or to imprisonment for life, if the jury shall in its discretion so direct. Id. 7 950207 and 961264wab ¶66 Although the jury had not directed that Martin be sentenced to life in prison, the trial court imposed a term of years far vacated beyond and his remanded life for expectancy. resentencing, The Seventh holding that Circuit where a legislatively enacted sentencing scheme has expressly deprived a court of the possibility of imposing a life sentence, a sentence for a term of years exceeding the defendant s approximate life expectancy would ordinarily constitute an abuse of discretion. Judge Flaum explained, If we are to give [the statute] real meaning, a sentencer cannot be permitted to evade the restrictions on one kind of sentence by imposing a substantially Martin, 63 F.3d identical one with a slightly different name. at 1434. See also United States v. Prevatte, 66 F.3d 840, 843- 44 (7th Cir. 1995) (Posner, C.J., concurring) (where sentencing judge was disempowered from imposing life, if he used a term of years to impose a life sentence he was evading a limitation on his authority. ). ¶67 Legislative legislative history However, intent. can as also the be indicative defendant argues, of the legislative history of this statute raises more questions than it answers. ¶68 enacted The by original 1987 version Wisconsin Act of Wis. 412. Stat. That § 973.014 Act was was first introduced as Assembly Bill 8 (November 1987 Special Session). As enacted by the Assembly, the bill originally provided that anyone could convicted be of a crime sentenced punishable to 8 life by life imprisonment without parole 950207 and 961264wab eligibility ï£§precisely the sentence imposed in this case. Senate then enacted a much narrower version, which The simply provided that a circuit court could defer the date of parole eligibility in cases where the defendant was convicted of firstdegree murder felonies, while including committing hostage or attempting taking. See certain § 5 of violent Senate Substitute Amendment 1 to Assembly Bill 8. ¶69 The measure then moved back to the Assembly, where it was further amended by a provision that ultimately became the basis for the present Wis. Stat. § 973.014. See § 5 of Assembly Amendment 1 to Senate Substitute Amendment 1 to Assembly Bill 8. That version would have provided the circuit court with three sentencing options: 973.014 SENTENCE OF LIFE IMPRISONMENT; PAROLE ELIGIBILITY DETERMINATION. When a court sentences a person to life imprisonment for a crime committed on or after the effective date of this section . . . [revisor inserts date], the court shall make a parole eligibility determination regarding the person and choose one of the following options: (1) The person is not eligible for parole. (2) The person is eligible for parole under s. 57.06(1). (3) The person is eligible for parole on a date set by the court. The court may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 57.06(1). (Emphasis added). authorized the possibility of Thus, sentence parole. this version imposed But, the 9 in would this have caseï£§life legislature s expressly without Committee of 950207 and 961264wab Conference recommended that this option be struck; Wis. Stat. § 973.014 was thereafter adopted with only two parole options rather than with the third option of life without parole. ¶70 have Since the legislature struck a provision that would expressly authorized precisely the sentence that was imposed here (life without parole), the remainder of the statute as enacted sentence. should not be construed as authorizing such a The legislature s action strongly militates against a [judicial] judgment that [the legislature] intended a result that it expressly declined to enact. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974). Where [a legislature] includes limiting language in an earlier version of a bill but deletes it prior to enactment, limitation was not intended. it may be presumed that the Russello v. United States, 464 U.S. 16, 23-24 (1983). ¶71 File The State argues that a May 23, 1988 one-page memo to prepared by Bruce Feustel, an attorney with the Legislative Reference Bureau, and a one-page Drafting Request from the Fuestel intent. Conference on May 24 that provide was a apparently clear received indication of by Mr. legislative The Feustel memo summarized the three parole options contained in the amended Assembly version of A.B. 8 before it went to the Committee of Conference, and opined that there was no limit on how long parole eligibility could be deferred by a circuit court; it could be a date 100 years in the future. ¶72 I disagree with the State s interpretation. The Feustel memo is simply too slim a reed to support the conclusion 10 950207 and 961264wab that the legislature authority to definitely circuit courts to intended impose to grant indirect implicit life without parole sentences on the basis of ambiguous statutory language. ¶73 knows Finally, the court must recognize that the legislature how Setagord that to sets exhibit circuit forth an court demonstrating such create an unambiguous several examples unambiguous to impose that punishment when it statute. of legislative a the life does so directly his legislative intent sentence legislature In to brief, drafting allow without intends to through the parole, authorize plain and unambiguous language. ¶74 In the first example, Wis. Stat. § 973.014(2)(1993-94) expressly provides that persistent repeaters are subject to life imprisonment without the possibility of parole. is not a persistent repeater. Setagord Yet he has been sentenced as if he were. ¶75 Second, Wis. Stat. § 973.014(1)(c)(1995-96) expressly gives the circuit court the power to declare that any defendant sentenced to life imprisonment is not eligible for parole, but only if the court sentences a person for a crime committed on or after August 31, 1995. section. ¶76 parole Stat. Setagord is not subject to this Yet he has been sentenced as if he were. The legislature s direct authorization of life without sentences in these situations § 973.014(1)(b)(1991-92) does not demonstrates extend so that far Wis. as to authorize the imposition of an indirect sentence of life without parole by the setting of a parole 11 eligibility date that no 950207 and 961264wab defendant could possibly live to reach. Had the legislature intended to permit such sentences in § 973.014(1)(b), it could and would have used the same language as it used in Wis. Stat. §§ 973.014(2)(1993-94) and the newly enacted Wis. Stat. § 973.014(1)(c)(1995-96). ¶77 The legislature amended Wis. Stat. § 973.014(1) during the pendency of this case to add another parole eligibility option: a circuit court now has the power to declare that any defendant sentenced to life imprisonment is not eligible for parole, but only if the court sentences a person for a crime committed on or after August 31, 1995. the effective date of the amendment, See 1995 Wis. Act. 48, § 5 (to be codified as Wis. Stat. § 973.014(1)(c)). It is conceded that Setagord is not subject to sentencing under this provision because his crime was committed prior to its effective date. ¶78 reason: life The majority s interpretation fails for yet another since the legislature clearly knows how to authorize without parole sentences, its command in Wis. Stat. § 973.014 that a sentencing shall set a parole eligibility date can only be construed as requiring that the defendant be given a meaningful possibility for parole at some point within an average person s lifetime. To construe a command that a parole eligibility date be set as allowing a circuit court to render a convicted defendant entirely ineligible for parole is inconsistent with the duty to set a date for parole eligibility. It results in making a charade out of the whole parole eligibility date determination and exalts form over substance. 12 950207 and 961264wab This violates construed to the fundamental avoid canon absurd, senseless interpretations. that statutes unreasonable, are to illogical, be and See, e.g., State v. Moore, 167 Wis. 2d 491, 496, 481 N.W.2d 633 (1992). ¶79 In sum, looking at the phrase any later date in isolation, the majority erroneously concludes that Wis. Stat. § 973.014 is unambiguous. However, when that phrase is properly construed in conjunction with other provisions of the statute, more than one reasonable interpretation can be drawn as to its meaning. Accordingly, the statute is ambiguous. Because it is the function of the legislature to establish sentencing policy, and because fundamental rules of statutory construction indicate that the legislature s sentencing policy as established in § 973.014(1)(b) was to allow the circuit court the discretion to set a parole eligibility date that provided a reasonable expectation of parole eligibility, I respectfully dissent. I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradely join this dissenting opinion. 13

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