State v. Michael D. Jackson

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2004 WI 29 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 02-0947-CR State of Wisconsin, Plaintiff-Respondent, v. Michael D. Jackson, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 264 Wis. 2d 893, 664 N.W.2d 126 (Ct. App. 2003-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 11, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee Daniel L. Konkol JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: March 26, 2004 WILCOX, J., concurs (opinion filed). ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Joseph E. Schubert and Brennan & Collins, Milwaukee, and oral arguments by Joseph E. Schubert. For the plaintiff-respondent the cause was argued by Lara M. Herman, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general. 2004 WI 29 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-0947-CR (L.C. No. 00 CF 1401) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, MAR 26, 2004 v. Michael D. Jackson, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 ANN WALSH BRADLEY, J. The Affirmed. petitioner, Michael Jackson, seeks review of an unpublished decision of the court of appeals affirming a circuit court judgment of conviction and order denying postconviction Jackson was convicted of relief.1 operating As a a motor repeat offender, vehicle without owner's consent, a Class E felony, and fleeing an officer, an unclassified felony. 1 State v. Jackson, No. 02-0947, unpublished slip op. (Wis. Ct. App. April 24, 2003) (affirming a judgment and an order of the circuit court for Milwaukee County, Daniel L. Konkol, Judge). No. ¶2 02-0947-CR This case addresses how penalty enhancers are to be applied to unclassified felonies in calculating the maximum term of confinement under Truth-in-Sentencing I.2 Jackson contends that the court of appeals erred in calculating the maximum term of his available confinement by failing to add the six-year penalty enhancer to the full term of imprisonment pursuant to Wis. Stat. § 939.62 (1997-98).3 He also advances that the court should have bifurcated the penalty enhancer between confinement and extended supervision, allocating 75% of it to the maximum term available for confinement. ¶3 We agree with the court of appeals that the penalty enhancer is neither subject to bifurcation nor is it to be added to the underlying term of imprisonment pursuant to Wis. Stat. § 939.62. However, we also determine that the court of appeals' reliance on Wis. Stat. § 973.01(2)(d), the statute specifying that the extended supervision term imposed by the court be at least 25% of the term of confinement imposed, was misplaced. Ultimately, that used although by the our court method of of calculations appeals, we affirm differs because from the 2 Wisconsin adopted Truth-in-Sentencing legislation in two phases. The first phase, TIS-I, was enacted in June 1998 and applied to offenses committed on or after December 31, 1999. See 1997 Wis. Act 283. The second phase, TIS-II, was enacted in July 2002 and became effective February 1, 2003. See 2001 Wis. Act 109. Because Jackson was sentenced under the provisions of TIS-I, this case does not address the recent changes of TIS-II. 3 All references to the Wisconsin Statutes are to the 199798 version unless otherwise noted. 2 No. 02-0947-CR difference here in the calculations has no practical effect on Jackson's sentence. I ¶4 vehicle Jackson without was convicted owner's of consent both and operating fleeing an a motor officer. Operating a vehicle without owner's consent is a Class E felony with a maximum sentence of five years of imprisonment. Stat. § 939.50(3)(e). Wis. Fleeing an officer is an unclassified felony with a maximum sentence of three years of imprisonment. Wis. Stat. § 346.17(3)(a). As a repeat offender, Jackson was subject to a penalty enhancer of six years of imprisonment on each count. ¶5 Wis. Stat. § 939.62(1)(b). Because Jackson was charged and convicted under Truth- in-Sentencing I (TIS-I), his sentence of imprisonment was bifurcated into a term of confinement followed by a term of extended supervision.4 Without a penalty enhancer, the maximum term of confinement for the Class E felony was two years, while the maximum term of confinement for the unclassified felony was two years, three months. repeater penalty enhancer, Wis. Stat. § 973.01(2). the circuit court With the increased the maximum term of confinement for each offense by six years. ¶6 At sentencing, due to a misunderstanding, the circuit court indicated that without the penalty enhancer, the maximum 4 Under Truth-in-Sentencing legislation, the term "imprisonment" does not mean time in prison. Rather, "imprisonment" consists of both the time of confinement (in prison) and the time following the confinement spent on extended supervision. See Wis. Stat. § 973.01(1). 3 No. 02-0947-CR term of confinement for the unclassified felony was "something like 18 months" when in fact it was 27 months. Based on that error, the circuit court sentenced Jackson with the belief that the maximum amount of confinement he faced with the repeater enhancer was seven years, six months (18 months + 72 months = 90 months) for the unclassified fleeing charge. The court correctly determined that with the penalty enhancer, the maximum amount of confinement for operating a motor vehicle without owner's consent, the Class E felony, was eight years (24 months + 72 months = 96 months). Jackson was sentenced to eight years (96 months) of imprisonment on each count, consisting of six years (72 months) of confinement and two years (24 months) of extended supervision, to run concurrently. ¶7 Jackson subsequently filed a motion for postconviction relief, arguing that the circuit court incorrectly calculated the maximum terms of confinement for both the classified and unclassified felony convictions. general repeater penalty He claimed that because the enhancer statute states that the "maximum term of imprisonment" may be increased, the circuit court was required to add the penalty enhancer to the term of imprisonment and then to bifurcate the six-year penalty enhancer into a term of confinement and extended supervision before adding it to the confinement and extended supervision on his underlying offenses. Accordingly, Jackson argued that under Wis. Stat. § 973.01(2)(b)6, the court could add only 75% of the six-year penalty enhancer (54 months) to his underlying terms of confinement. The circuit court denied the motion, concluding 4 No. that it had properly The court added the penalty 02-0947-CR enhancer. Jackson appealed. ¶8 of appeals affirmed the circuit court. State v. Jackson, No. 02-0947, unpublished slip op. at ¶2 (Wis. Ct. App. April 24, 2003). In doing so, it noted that Jackson's argument for bifurcating the penalty enhancer conflicted with State v. Volk, 2002 WI App 274, ¶¶35-36, 258 Wis. 2d 584, 654 N.W.2d 24, which held that penalty enhancers are to be added to the term of confinement and not to extended supervision. ¶8. Id., The court explained that while a penalty enhancer is added to the underlying maximum term of confinement, the 25% rule of Wis. Stat. serve to § limit confinement. ¶9 973.01(2)(d) the time regarding actually extended available supervision to be served may in Id., ¶9. After a series of mathematical calculations, the court of appeals concluded that the circuit court sentenced Jackson on the Class E felony with a correct understanding of the maximum term of confinement, eight years (96 months), but sentenced him on the unclassified felony under the mistaken belief that the maximum months). term of confinement Id., ¶17. was seven years, six months (90 The court determined that the true maximum term of confinement for the unclassified felony was actually seven years, two and four-tenths months (86.4 months). ¶10 Id. Nevertheless, it affirmed the judgment of conviction and order denying postconviction relief, reasoning that because the circuit court had sentenced Jackson to concurrent terms on each count, the conviction for the Class E offense would remain 5 No. 02-0947-CR unchanged, and the reduction of the unclassified felony would have no practical effect upon his sentence. See id., ¶19. The court invited Jackson to file a motion for reconsideration if he still sought resentencing, but Jackson instead filed a petition for review with this court. II ¶11 This case addresses how penalty enhancers are applied at sentencing in determining the maximum term of confinement for unclassified felonies under TIS-I. involves the interpretation Our resolution of this case of several statutes. The interpretation of a statute presents a question of law subject State v. Byers, 2003 WI 86, to independent appellate review. ¶12, 263 Wis. 2d 113, 625 N.W.2d 359 (citing State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997)). ¶12 Our goal in interpreting a statute is to discern the intent of the legislature. See State v. Cole, 2003 WI 59, ¶13, 262 Wis. 2d 167, 663 N.W.2d 700. When there is doubt as to the meaning of a criminal statute, courts should apply the rule of lenity and interpret the statute in favor of the accused. Id. (citing State v. Morris, 108 Wis. 2d 282, 289, 322 N.W.2d 264 (1982); State v. Wilson, 77 Wis. 2d 15, 28, by examining 252 N.W.2d 64 (1977)). III ¶13 statutes. We begin our discussion the relevant Since this case involves the application of a penalty enhancer, we look first to Wis. Stat. § 939.62, which provides for penalty enhancers for repeat offenders. 6 It states in part: No. 02-0947-CR 939.62 Increased penalty for habitual criminality. (1) If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may be imposed . . . the maximum term of imprisonment prescribed by law for that crime may be increased as follows: . . . . (b) A maximum term of more than one year but not more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony. (Emphasis added). ¶14 In this case, Jackson concedes that he is a repeater on the basis of a prior felony conviction. Accordingly, the "maximum his term of imprisonment" increased by six years. ¶15 of for each of offenses is Wis. Stat. § 939.62(1)(b). Our inquiry encompasses the application at sentencing penalty enhancers legislation. to Wisconsin unclassified Stat. § felonies 973.01 under represents TIS-I Truth-in- Sentencing as it existed under TIS-I. Wis. Stat. § 973.01(1) requires a consisting extended a circuit of a term supervision "imprisonment." court of to impose confinement whenever it bifurcated followed sentences sentence by a term a person It states: 973.01 Bifurcated sentence extended supervision. of imprisonment and (1) BIFURCATED SENTENCE REQUIRED. Except as provided in sub. (3), whenever a court sentences a person to imprisonment in the Wisconsin state prisons for a felony committed on or after December 31, 1999, the court shall impose a bifurcated sentence that consists 7 of to No. 02-0947-CR of a term of confinement in prison followed by a term of extended supervision under s. 302.113. ¶16 The structure for each forth in Wis. Stat. § 973.01(2). bifurcated sentence is set Subdivisions 1 to 5 of Wis. Stat. § 973.01(2)(b) specify the maximum term of confinement for classified felonies. Subdivision 6 addresses the maximum term of confinement for unclassified felonies, which is the focus of our inquiry. The provisions relating to unclassified felonies under Wis. Stat. § 973.01(2)(b)6 provide in part: (2) STRUCTURE OF BIFURCATED SENTENCES. The court shall ensure that a bifurcated sentence imposed under sub. (1) complies with all of the following: . . . . (b) Imprisonment portion of bifurcated sentence. The portion of the bifurcated sentence that imposes a term of confinement in prison may not be less than one year, subject to any minimum sentence prescribed for the felony, and, except as provided in par. (c), may not exceed whichever of the following is applicable. [Subds. (b) 1 to 5 list the maximum term confinement for classified felonies B through E] of 6. For any felony other than a felony specified in subds. 1. to 5., the term of confinement in prison may not exceed 75% of the total length of the 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." provision directs enhancer to explains the the the sentencing maximum relationship term The first sentence of the court of between 8 to add confinement. the the penalty The increased second term of No. confinement and the overall term of imprisonment. 02-0947-CR 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). ¶18 Despite the language of Wis. Stat. § 973.01(2)(c), Jackson contends that the court of appeals erred in adding the entire six years confinement. of enhancement to the underlying term of He argues that the enhancer should have instead been added to the term of imprisonment pursuant to Wis. Stat. § 939.62. should Additionally, he asserts that the penalty enhancer be bifurcated between confinement and extended supervision with 75% of the six-year enhancer (54 months) added to his underlying term of confinement under Wis. Stat. § 973.01(2)(b)6.5 ¶19 The State counters that Wis. Stat. §§ 939.62(1)(b) and 973.01(2)(c) unambiguously provide that the six-year repeater penalty enhancer should be added to the underlying maximum term of confinement offenses. that could be imposed for each of Jackson's It further observes that Wis. Stat. § 973.01(2)(b)6 5 Although it is not entirely clear, Jackson appears to maintain the position he took in the circuit court that because the six-year penalty enhancer is added to and increases the term of imprisonment, the penalty enhancer must be bifurcated into a term of confinement and extended supervision. (Jackson's Brief at 10-12). 9 No. does not rather, provide it for explains the bifurcation that for of penalty unclassified 02-0947-CR enhancers; felonies, the underlying term of confinement may not exceed 75% of the total length of imprisonment. ¶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. Ultimately, the difficulty we have with Jackson's positions is twofold. First, Jackson ignores the language of Wis. Stat. § 973.01(2)(c), which anticipates the question before us and specifically directs courts to add the penalty enhancer to the term of confinement, thereby increasing the overall term of imprisonment by the same amount. appeals Wis. Stat. § 973.01(2)(c). recognized, Jackson's Second, as the court of contention conflicts with the precedent of Volk, 258 Wis. 2d 584. ¶21 In Volk, the court of appeals confronted a similar issue involving the effect of penalty enhancers on classified offenses under Truth-in-Sentencing. There, the defendant argued that the circuit court erroneously applied the penalty enhancer of Wis. Stat. § 939.62 to the extended supervision term of his bifurcated sentence. holding that Wis. Id., ¶2. Stat. § The court of appeals agreed, 973.01(2)(c) does not allow a sentencing court to impose any portion of a penalty enhancer as extended supervision. Id. The court based its interpretation, in part, on the language of the statute, which authorized courts to apply the enhancer to the term of confinement but conferred no such authorization for the 10 term of extended supervision. No. Id., ¶36. It also relied upon legislative history to support its conclusion. ¶22 02-0947-CR Id., ¶¶41-42 The legislative history cited by the court of appeals in Volk was the final report of the Criminal Penalties Study Committee.6 Id. The Committee was charged with the responsibility of making recommendations regarding the Truth-inSentencing legislation necessary to implement Wisconsin Criminal and drafting those Penalties proposed legislation recommendations. Study Committee, State Final of Report ("Report"), August 31, 1999, at 6. ¶23 regarding In its report, the Committee made two recommendations penalty enhancers under Wis. Stat. § 973.01(2)(c). First, it noted: If pleaded and proved, these enhancers increase the maximum term of confinement for the underlying crime and increase the overall maximum term of imprisonment as well. They do not lengthen the maximum term of extended supervision for the underlying crime. . . . Report at 60 (footnotes omitted).7 6 The Criminal Penalties Study Committee's report can be accessed at http://www.doa.state.wi.us/docs_view2.asp?docid=42. 7 In providing an example, the Report continued: [S]uppose that one has been convicted of the crime of assault by a prisoner while armed with a dangerous weapon. . . . The dangerous weapon penalty enhancer adds 5 years to the maximum term of confinement for the underlying assault charges while likewise increasing the overall maximum term of imprisonment by the same amount. It does not increase the maximum term of extended supervision. State of Wisconsin Criminal Penalties Study Committee, Report, August 31, 1999, at 60 (footnotes omitted). 11 Final No. ¶24 02-0947-CR Second, the Committee advanced: The extended supervision caps . . . would apply regardless of whether the penalties for the crime of conviction have been increased because the actor is a habitual criminal and/or because one of the penalty enhancers . . . has been pleaded and proved. In these instances the maximum term of confinement increases according to schedules in the Statutes and the overall maximum term of imprisonment increases by a like amount. The maximum term of extended supervision, however, does not increase. . . . Given the purposes of extended supervision, the Committee believes this amount is sufficient. It does not recommend adjusting extended supervision caps when penalty enhancers (including habitual criminality) are present in the case. Report at 20 (footnotes omitted). ¶25 While the focus of Volk involved the effect of penalty enhancers on extended supervision, instructive in the present case. we nevertheless find it As the State explains in its brief, "the real question in both [this case and Volk] is how penalty enhancers are to be applied under Truth-in-Sentencing's bifurcated sentencing structure." ¶26 In making his arguments, Jackson ignores the language of Wis. Stat. § 973.01(2)(c) which specifically states that the penalty enhancer is added to the maximum term of confinement, which in turn increases the total length of imprisonment by the same amount. § 939.62(1)(b) He is provides correct that the to note general that Wis. repeater Stat. penalty enhancer increases the "maximum term of imprisonment" by six years. Yet, it is the truth-in-sentencing provisions of Wis. Stat. § 973.01 that explain how that increase in the maximum term of imprisonment may be accomplished. 12 No. ¶27 02-0947-CR Finally, in an effort to reduce the maximum term of confinement for his Class E felony, operating a motor vehicle without owner's consent, Jackson argues that by adding a penalty enhancer to this unclassified classified felony § 973.01(2)(b)6. for felony, the it transforms purposes of into Wis. an Stat. That statute provides: 6. For any felony other than a felony specified in subds. 1. to 5., the term of confinement in prison may not exceed 75% of the total length of the bifurcated sentence. Wis. Stat. § 973.01(2)(b)6. ¶28 Jackson reasons that his operating a motor vehicle without owner's consent conviction, which is listed as a Class E felony under subdivision 5 of Wis. Stat. § 973.01(2)(b) becomes an unclassified felony because no classified felonies listed in subdivisions 1-5 contain a penalty enhancer. it therefore falls within the definition of He contends that an unclassified felony, i.e., a felony "other than a felony specified in subds. 1. to 5," and the maximum term of confinement may not exceed 75% of imprisonment. ¶29 Although authority. penalty novel, Jackson's argument is without Essentially his position is that the addition of a enhancer renders all felonies unclassified. The language of Wis. Stat. § 973.01(2)(b)6 belies such a contention. Indeed, the language of Wis. Stat. § 973.01(2)(b)6 contemplates a distinction between classified and unclassified felonies when it exempts classified felonies from its scope. Because Jackson provides no basis to challenge his Class E felony sentence other 13 No. 02-0947-CR than this rejected transformation argument, we need only address the application of penalty enhancers to unclassified felonies. ¶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. IV ¶31 Having determined that the defendant's proffered methodology is in error, we turn next to the question of how to calculate the maximum confinement time for unclassified felonies with penalty enhancers under TIS-I. The circuit court arrived at a conclusion different from that set forth by the court of appeals, which in turn differed from that advanced by the State. ¶32 All agree that for unclassified felonies the penalty enhancer is added initially to the term of confinement pursuant to Wis. Stat. § 973.01(2)(c) cannot be bifurcated. and that the penalty enhancer For the unclassified felony, fleeing an officer, the maximum confinement without a penalty enhancer is two years, three months (27 months). The conclusions of the maximum confinement for the unclassified felony with the sixyear penalty enhancer are as follows: 14 No. Circuit months) court: seven years, six 02-0947-CR months (90 Court of appeals: seven years, two and fourtenths months (86.4 months) State of Wisconsin: (99 months). ¶33 eight years, three months In its decision, the court of appeals determined that the circuit court sentenced Jackson on his unclassified felony under the mistaken belief that the maximum term of confinement was seven years, six months (90 months). slip op. at ¶17. Jackson, unpublished The court concluded that the true maximum term of confinement was seven years, two and four-tenths months (86.4 months). ¶34 pursuant Id. It arrived to Wis. at Stat. this § figure 973.01(2)(c), by first in noting adding a that six-year penalty enhancer to the underlying maximum term of confinement, the underlying maximum increased by six years. penalty enhancer of six term of imprisonment is likewise In calculating, the court added the years (72 months) to the underlying maximum term of confinement (27 months) for a total of 99 months maximum term of confinement. Id., ¶14. Six year penalty enhancer + Underlying maximum term of confinement (72 months) (27 months) ___________ 99 months Six year penalty enhancer + Underlying maximum term of imprisonment (72 months) (36 months) ___________ 108 months 15 No. ¶35 found It in then Wis. confinement. applied Stat. § Id., ¶15. the 25% extended 973.01(2)(d) The 25% to supervision limit extended 02-0947-CR the rule term supervision of rule states that, "[t]he term of extended supervision that follows the term of confinement in prison may not be less than 25% of the length of the term of confinement in prison imposed under par. (b)." Wis. Stat. § 973.01(2)(d). The court of appeals interpreted this to require that Jackson's term of available imprisonment, nine years (108 months), be greater than or equal to his term of available confinement, eight years, three months (99 months), plus 25% of that confinement term (24.75 months). See id., ¶16. Because it was not, the court reduced the maximum amount of confinement to a term of 86.4 months, consistent with the 25% extended supervision rule. Id. The court explained its calculations as follows: If extended supervision must be 25% of confinement and extended supervision plus confinement must be less than or equal to maximum imprisonment, the problem can be conceptualized as dividing Jackson's 108-month maximum imprisonment into 5 parts: 4 parts confinement and 1 part extended supervision. Therefore: minimum extended supervision = 108/5 = 21.6 maximum confinement = 4 [x] 21.6 = 86.4 It follows that Jackson was subject to a maximum confinement of 86.4 months because this amount, when compared with Jackson's 108-month maximum sentence, leaves 25% of 86.4 (21.6 months) for extended supervision. Id., ¶16. 16 No. ¶36 The court of appeals' reliance § 973.01(2)(d) here is misplaced. on 02-0947-CR Wis. Stat. That statute requires that the amount of extended supervision be at least 25% of the term of confinement that the sentencing court imposes. § 973.01(2)(d). In placing its focus on the Wis. Stat. 25% rule of extended supervision, the court of appeals failed to account for the 75% rule of Wis. Stat. § 973.01(2)(b)6, which specifically addresses the calculations of maximum term of confinement for unclassified felonies. ¶37 As earlier noted, this 75% rule provides that, "[f]or any felony other than a felony specified in subds. 1. to 5., [the classified felonies], the term of confinement in prison may not exceed 75% of the total length of the bifurcated sentence." Wis. Stat. § 973.01(2)(b)6.8 Had the court of appeals properly focused on the 75% rule of Wis. Stat. § 973.01(2)(b)6, there would have supervision confinement. been no need requirements Had it to resort to taken to reduce Wis. the the Stat. minimum maximum extended term § 973.01(2)(b)6 of into account, it would have determined, as we do, that the maximum term of confinement here does not run afoul of the minimum extended supervision requirement. 8 Under TIS-II, only a few unclassified felonies remain. These include operating an automobile while intoxicated with a minor passenger (third or fourth offense), Wis. Stat. § 346.65(2)(f) (2001-02), and the felony enhancement of committing domestic abuse during the 72-hour period following a domestic abuse incident. Wis. Stat. § 939.621 (2001-02). Therefore, the 75% rule has limited application for future cases. 17 No. ¶38 Unlike the court of appeals, the State addresses Wis. Stat. § 973.01(2)(b)6. § 973.01(2)(b)6 enhancers 02-0947-CR does It asserts, however, that Wis. Stat. not are applied. speak to Rather, the the issue State of how explains penalty that the statute discusses how unclassified felonies are bifurcated prior to or without a penalty enhancer being applied. Accordingly, it contends that the circuit court could have added the entire sixyear (72 month) penalty enhancer to the underlying maximum term of confinement, two years, three months (27 months), for a total of available term of eight years, three months (99 months). Six year penalty enhancer + Underlying maximum term of confinement (72 months) (27 months) ___________ 99 months ¶39 It is unclear from the language of the statutes if the legislature intended, as the State asserts, to disjoin the 75% requirement of § 973.01(2)(c) Wis. Stat. § altogether. 973.01(2)(b)6 We acknowledge from that Wis. the Stat. State's position regarding the statutory scheme is a reasonable one. Yet there is another reasonable interpretation of the statutory scheme: the two statutes should be read together. ¶40 Wisconsin Stat. maximum § of confinement instructs for how to calculate the felonies. The first step is to identify the total length of the bifurcated sentence. term 973.01(2)(b)6 unclassified This is accomplished by relying on the second sentence of Wis. Stat. § 973.01(2)(c), which explains that the total length of the bifurcated sentence is increased by 18 No. 02-0947-CR the same amount that was added to the underlying maximum term of confinement with enhancement. After arriving at this figure, the 75% rule of Wis. Stat. § 973.01(2)(b)6 applies to determine the maximum term of confinement available. ¶41 penalty When there is doubt concerning the severity of the described by statute, Wisconsin law provides that a court must favor a milder penalty over a harsher penalty. Cole, 262 Wis. 2d 167, ¶67 (citing Morris, 108 Wis. 2d at 289). This rule of lenity generally establishes that ambiguous penal statutes should be interpreted in favor of the defendant. Id. As a result, we interpret the statute in favor of Jackson. ¶42 Applying the rule of lenity, we conclude that Wis. Stat. § 973.01(2)(b)6 should be read together with Wis. Stat. § 973.01(2)(c) in calculation of the maximum term of confinement for unclassified felonies with penalty enhancers under TIS-I. We apply the 75% rule of Wis. Stat. § 973.01(2)(b)6 after the penalty enhancer is added confinement. to the underlying maximum term of This addition, in turn, pursuant to the second sentence of Wis. Stat. § 973.01(2)(c), increases the total term of imprisonment by the same amount. We then apply the 75% rule to to the amount total of term of confinement imprisonment for the calculate unclassified the felony maximum with the penalty enhancer.9 9 We recognize that our conclusion of six years, nine months (81 months) is the same maximum term of confinement that Jackson is seeking. However, for the reasons explained above, his methodology in arriving at that figure is inconsistent with Wis. Stat. § 973.01(2)(c), its legislative history, and State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24. 19 No. Six year penalty enhancer + Underlying maximum term of imprisonment (Pursuant to Wis. Stat. § 973.01(2)(c)) 02-0947-CR (72 months) (36 months) ___________ 108 months 108 months x 75% = 81 months maximum amount of confinement ¶43 Although our determination of the maximum term of confinement for Jackson's unclassified felony is less than both the circuit court and court of appeals, our decision has no practical effect upon the sentence imposed. appeals explained, any reduction in As the court of Jackson's unclassified offense leaves his Class E concurrent sentence both unchanged and controlling. Jackson, unpublished slip op. at ¶19. V ¶44 In sum, we conclude that the general penalty enhancer for an unclassified felony under TIS-I is neither subject to bifurcation imprisonment nor is to pursuant be to added Wis. to the Stat. underlying 939.62. § term We of also determine, however, that the court of appeals' reliance on Wis. Stat. § 973.01(2)(d), the statute specifying that the extended supervision term imposed by the court be at least 25% of the term of confinement imposed, was misplaced. In the end, while our method of calculations differs from that used by the court of appeals, we affirm because the difference here in the calculations has no practical effect on Jackson's sentence. By the Court. The decision affirmed. 20 of the court of appeals is No. ¶45 majority JON P. WILCOX, J. (concurring). opinion Truth-in-Sentencing that under 02-0947-CR.jpw I agree with the I (TIS I),10 pursuant to Wis. Stat. § 973.01(2)(c)11 and State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24, the circuit court was not required to bifurcate Jackson's six-year penalty enhancer and add it to the underlying term of imprisonment for his unclassified felony. disagree with the Majority op., ¶¶3, 20. majority's method of However, I calculating Jackson's sentence, and therefore cannot join Part IV of the opinion. As will be demonstrated below, the majority's method of calculating Jackson's sentence for his unclassified felony ignores the plain language of calculation equivalent Wis. Stat. § 973.01(b)&(c). in of Part IV of what the the opinion majority Furthermore, is the linguistically the mathematical claims is prohibited in Part III. ¶46 As this case involves the interpretation of several portions of Wis. Stat. § 973.01, the relevant provisions are set forth in full bellow. Section 973.01 provides, in pertinent part: (1) Bifurcated Sentence Required. Except as provided in sub. (3), whenever a court sentences a person to imprisonment in the Wisconsin state prisons for a felony committed on or after December 31, 1999, the court shall impose a bifurcated sentence that consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113. 10 See 1997 Wis. Act 283. 11 All reference to the Wisconsin Statutes are to the 199798 version unless otherwise noted. 1 No. 02-0947-CR.jpw (2) Structure of Bifurcated Sentences. The court shall ensure that a bifurcated sentence imposed under sub. (1) complies with all of the following: (a) Total length of bifurcated sentence. Except as provided in par. (c), the total length of the bifurcated sentence may not exceed the maximum term of imprisonment for the felony. (b) Imprisonment portion of bifurcated sentences. The portion of the bifurcated sentence that imposes a term of confinement in prison may not be less than one year, subject to any minimum sentence prescribed for the felony, and, except as provided in par. (c), may not exceed whichever of the following is applicable: . . . . 6. For any felony other than a felony specified in subds. 1. to 5., the term of confinement in prison may not exceed 75% of the total length of the bifurcated sentence. (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. (d) Minimum term of extended supervision. The term of extended supervision that follows the term of confinement in prison may not be less than 25% of the length of the term of confinement in prison imposed under par. (b). Wis. Stat. § 973.01 (emphasis added). ¶47 The majority opinion, relying on the "rule of lenity," majority op., ¶41, comes to a conclusion that contravenes the express language of this statute. calculates enhanced, the maximum amount unclassified § 973.01(2)(c) to require of felony that 2 any confinement by directly The majority for a erroneously increase in the penalty reading term of No. 02-0947-CR.jpw confinement also increases the term of imprisonment, which is then subject to the 75 percent bifurcation rule contained in § 973.01(2)(b)6. Majority op., ¶¶40, 42. However, the majority provides no authority for the proposition that § 973.01(2)(b)6. incorporates § 973.01(2)(c). provision that subjects § 973.01(2)(c) to the The majority cites to no statutory the enhanced confinement Wis. Stat. § 973.01(2)(b). term of confinement limitations in contained in Quite the contrary, § 973.01(2)(b) specifically states that any increase in confinement time under the penalty subject to enhancement the provision limitations of contained § 973.01(2)(c) in is not § 973.01(2)(b)1.-6. Rather than incorporating § 973.01(2)(c) into § 973.01(2)(b)6., § 973.01(2)(b) limitations on explicitly excludes confinement time penalty contained 973.01(2)(b) and 973.01(2)(b)6., when read enhancers therein. together, from the Sections provide: "[t]he portion of the bifurcated sentence that imposes a term of confinement in prison . . . except as provided in par. (c) [the penalty enhancement provision], may not exceed . . . . 75% of the total length of the bifurcated sentence." By applying the 75 percent rule contained in § 973.01(2)(b)6. after adding the penalty enhancer to the total term of initial imprisonment, the majority effectively eradicates the phrase "except as provided in par. (c)" from § 973.01(2)(b). Because this language appears in paragraph (b), it applies to all of the limits contained in the subdivisions explain why this of paragraph language (b). is The inapplicable subdivision 6. 3 majority to the fails to limit in No. ¶48 02-0947-CR.jpw The error of the majority's interpretation is obvious if one looks to the other limitations on the time of confinement contained in the subdivisions of § 973.01(2)(b). majority argues, contained in the allowable § 973.01(2)(c) is increase in subject to If, as the confinement the time confinement limitations contained in § 973.01(2)(b)1.-6., then the penalty enhancer provision felonies. is rendered a nullity for classified For example, the sentencing limitation contained in subdivision 4 provides that "[f]or a Class D felony, the term of confinement in prison Wis. Stat. § 973.01(2)(b)4. may not exceed 5 years." Similarly, subdivision 5 provides that "[f]or a Class E felony, the term of confinement in prison may not exceed 2 years." Wis. Stat. § 973.01(2)(b)5. If any increase in confinement time under § 973.01(2)(c) is subject to the limitations contained in § 973.01(2)(b)1.-6., then the term of confinement for a Class D felony could never exceed five years, even if a penalty enhancer applied. Likewise, for a Class E felony, the term of confinement could never exceed two years, even if the initial sentence were subject to a penalty enhancer. Therefore, if a person were convicted of a Class E felony and subject to, say, a six-year penalty enhancer, the additional six years could never attach to his sentence. Under Volk, 258 Wis. 2d 584, the penalty enhancer cannot be added to the term of extended supervision, and under the majority's logic, the increased term of confinement is still subject to the two-year limit in § 973.01(2)(b)5. 4 No. ¶49 02-0947-CR.jpw This result is purely absurd, as it reads the penalty enhancement provision out of the statute. The statute attempts to avoid this absurd result by providing that the limits on the term of "except confinement as (emphasis majority provided in added). op., par. this indicates subdivisions of confinement time under paragraph (c). to § 973.01(2)(b)1.-6. the the (b) the majority's is not penalty apply and in the to increases in enhancement provision of The majority's reading of the statute ignores language explain clear contained and therefore places the vitality enhancers under TIS I in serious jeopardy. to suggestion, crystal limits do apply Wis. Stat. § 973.01(2)(b) language that paragraph in (c)." Contrary ¶39, unambiguously this contained why § 973.01(2)(c) the is § 973.01(2)(b)6., penalty subject but § 973.01(2)(b)1.-5. penalty The majority fails enhancement of the to provision contained in proscribed in not In of the other limit limits words, the majority does not explain why the phrase "except as provided in par. (c)" applies to subdivisions 1.-5. but not to subdivision 6. The only difference between § 973.01(2)(b)1.-5. and § 973.01(2)(b)6. is that the former provisions cap confinement time for classified felonies at a definitive number, whereas, the latter provision caps confinement time for unclassified felonies by providing that the term of confinement cannot exceed a certain percentage of the total sentence. subdivisions of § 973.01(2)(c). None of the limits contained in the § 973.01(2)(b) If any increase 5 contain in any reference confinement time to under No. 02-0947-CR.jpw § 973.01(2)(c) is subject to the limit in § 973.01(2)(b)6., then any increase must also subject There § 973.01(2)(b)1.-5. be is simply to no the limits in basis for textual distinguishing the limit on confinement time for unclassified felonies from the limits proscribed for classified felonies; both are subject to the phrase "except as provided in par. (c)." ¶50 The majority attempts to justify a distinction by misreading the second sentence of § 973.01(2)(c) in conjunction with § 973.01(2)(b)6. to provide that the enhanced sentence is bifurcated only sentence. after Majority the op., § 973.01(2)(c) provides: enhancer ¶¶40, is 42. added The to the second initial sentence of "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." this sentence does not provide (Emphasis added.) that the total Notably, length of an increased sentence is thereafter subject to the limitations in § 973.01(2)(b). illogical To because, read as this sentence demonstrated as such above, is entirely § 973.01(2)(b) expressly excludes increases in the term of confinement under § 973.01(2)(c) from the requirements listed in § 973.01(2)(b)1.6. Also, the first sentence of § 973.01(2)(c) provides: "The maximum term of confinement in prison specified in par. (b) may be increased by any applicable penalty enhancement." added.) enhancer (Emphasis The plain language of the statute contemplates that the is added after the maximum specified in paragraph (b) is calculated. 6 term of confinement The second sentence No. of § 973.01(2)(c) imprisonment simply calculated provides under that the § 973.01(2)(b) 02-0947-CR.jpw total is term of subsequently increased as a mathematical consequence of the penalty enhancer being added to the term of confinement pursuant to the first sentence in § 973.01(2)(c). ¶51 The majority writes, "[w]e apply the 75% rule of Wis. Stat. § 973.01(2)(b)6 after the penalty enhancer is added to the underlying maximum term of confinement." ¶42. The error of the majority is Majority op., obvious. The penalty enhancer cannot be added to the underlying term of confinement until the However, underlying in order confinement in term to the of confinement calculate first place, the the is calculated. underlying 75 term of rule of add the percent § 973.01(2)(b)6. must be applied. ¶52 I do not understand how the majority can penalty enhancer in § 973.01(2)(c) to the underlying term of confinement without first confinement under the § 973.01(2)(b)6. enhancer is added after "The specified par. enhancement. If 75 the percent underlying rule term contained of in The statute itself requires that the penalty calculated: in calculating the maximum (b) the may initial term be maximum term confinement confinement of of in increased term of by any confinement is prison applicable 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 (emphasis added). same amount." Wis. Stat. § 973.01(2)(c) The majority never calculates the underlying 7 No. term of confinement and instead seems to add directly to the total term of the sentence. 02-0947-CR.jpw the enhancer See majority op., ¶40-42. ¶53 Either the majority is applying the 75 percent rule twice once to calculate the underlying term of confinement and then again after the penalty enhancer is added or the majority is simply adding the imprisonment without confinement. This penalty ever enhancer calculating second to the possibility the total term of underlying term of is the mathematical equivalent of Jackson's argument that the majority supposedly rejects. Jackson argues that his penalty enhancer, six years or 72 months, is subject to the 75 percent bifurcation rule and added to the total length of imprisonment. Pet'r br., at 8-10. Therefore, Jackson reasons that only 75 percent of 72 months, or 54 months should be added to his initial 27-month term confinement to produce a total 81 months of confinement. 10. The majority states that it rejects this of Id. at argument. Majority op., ¶3. ¶54 Yet, the majority reaches the exact same figure as Jackson regarding his total term of increased confinement, 81 months. Compare majority op., ¶42 with pet'r br., at 10, 12. The majority reasons that the 72-month enhancer increases the total term of imprisonment to 108 months, which is then bifurcated according to the 75 percent rule, to reach 81 months of confinement. Majority op., ¶42. the approach majority's and The only difference between Jackson's is that instead of bifurcating the 72 months up front and then adding the resulting 8 No. 02-0947-CR.jpw 54 months to the original 27 months of confinement to reach 81 months, the majority adds the 72 months to the total term of initial imprisonment, 36 months, and then bifurcates under the 75 percent rule to reach 81 months. ¶55 The majority's reading of § 973.01(2)(b)&(c) directly contradicts its earlier position that the total amount of confinement subject to a penalty enhancer is not calculated by adding the enhancer imprisonment. to the original Majority op., ¶3. underlying term of While the majority states that it rejects Jackson's argument that the 72-month enhancer should be added to the underlying maximum term of imprisonment, id., its mathematical formula does precisely just that: Six year penalty enhancer (72 months) + Underlying maximum term of confinement (36 months) (pursuant to Wis. Stat. § 973.01(2)(c) ____________ 108 months. 108 months x 75% = 81 months maximum amount of confinement Majority op., ¶42. ¶56 Following the approach of the State, and in accordance with the plain language of the statute, I conclude that Jackson should composed be subject of supervision. two-step 99 to months a total of confinement 108 and months 9 imprisonment, months extended When read properly, § 973.01(2)(b)&(c) set forth a procedure penalty enhancer. for calculating sentences affected by a First, the original term of imprisonment is calculated pursuant to the limits contained in § 973.01(2)(b). Second, under § 973.01(2)(c), "[t]he maximum term of confinement 9 No. in prison specified applicable penalty in par. (b) may enhancement." be 02-0947-CR.jpw increased Therefore, any by any applicable penalty enhancer increases the total amount of confinement that was calculated under paragraph (b). ¶57 total Prior to the application of the penalty enhancer, the amount unclassified of imprisonment felony is three available years or 36 for Jackson's months. This underlying sentence is bifurcated into a term of confinement and a term of extended Symbolically, this supervision, and represented as supervision. relationship the follows: total between term "a" Wis. Stat. § 973.01(1). = of confinement, imprisonment confinement; "b" supervision; and "c" = total term of imprisonment. § 973.01(1), "a" + "b" = "c." = extended can be extended Pursuant to Therefore, "c," the total term of imprisonment, equals 36 months. ¶58 Under § 973.01(2)(b)6., the maximum amount of confinement for an unclassified felony may not exceed 75 percent of the total length of the sentence. term of confinement for his As such, Jackson's maximum unclassified felony, pre- enhancement, is 75 percent of 36 months, or 27 months. The remainder, nine months, is the term of extended supervision. Therefore, follows: ¶59 Jackson's pre-enhanced sentence "a"= 27; "b"= 9; and "c"= 36. is represented as 27 + 9 = 36. Next, pursuant to § 973.01(2)(c), the amount of the penalty enhancer is added to the maximum term of confinement specified in paragraph (b), which was just determined to be 27 months. Jackson's penalty enhancer is six years or 72 months. 10 No. Adding 72 months confinement of to 27 99 months yields months. a Therefore, 02-0947-CR.jpw total period post-enhancement, Jackson's term of confinement "a1" has a value of 99. amount of Jackson's confinement total is sentence, now as greater discussed of than 75 supra, While the percent of § 973.01(2)(b) provides that the 75 percent rule for unclassified felonies in § 973.01(2)(b)6. is not applicable to an increase in the term of confinement under § 973.01(2)(c). ¶60 The second sentence of § 973.01(2)(c) provides that if "a" is increased by 72 months, "c," as a function of "a" + "b" is increased by that same amount: "a" + 72 + "b" = "c" + 72. Jackson's sentence structure now appears as follows: = "c1" or 99 + 9 = 108. § 973.01(2)(c), greater than "c1" "c," is the "a1" + "b" Thus, pursuant to the second sentence of now 108 precise months, amount confinement between "a" and "a1." which of the is 72 months increase in Therefore, Jackson's total enhanced sentence should be 108 months, composed of 99 months confinement and nine months extended supervision. ¶61 I do agree with the majority, although for different reasons, that the court of appeals erred in applying the 25 percent rule contained in Wis. Stat. § 973.01(2)(d). op., ¶36. Section 973.01(2)(d) provides: Majority "The term of extended supervision that follows the term of confinement in prison may not be less than 25% of the length of the term of confinement in prison imposed under par. (b)." (Emphasis added.) This section has no reference to paragraph (c); it simply provides that when a bifurcated sentence is calculated under paragraph (b), the 11 No. 02-0947-CR.jpw term of extended supervision cannot be less than 25 percent of the term of confinement calculated under that paragraph. As noted above, § 973.01(2)(b)&(c) provide a two-step procedure for calculating sentences with penalty enhancers. calculation pursuant to § 973.01(2)(b)6., Under the initial Jackson's term of confinement was 27 months and his term of extended supervision was nine months. months. Twenty-five percent of 27 months equals 6.75 Therefore, Jackson's initial term of extended supervision was greater than 25 percent of the initial term of confinement and the proscription contained in § 973.01(2)(d) was not violated. As § 973.01(2)(c) provides that a penalty enhancer is added to the term of confinement after the original sentence is bifurcated under § 973.01(2)(b), the 25 percent rule in § 973.01(2)(d) does not apply to the enhanced sentence. ¶62 The majority states that this approach is reasonable, majority op., ¶29, yet, in the interest of "lenity," it elects to adopt an approach that ignores the plain language of § 973.01(2)(b)&(c) and contradicts its earlier position that the total amount of confinement subject to a penalty enhancer is not calculated by adding the enhancer to the original underlying term of imprisonment. ¶63 For these reasons, while I concur in the mandate of the majority opinion, I do not join Part IV of the opinion. 12 No. 1 02-0947-CR.jpw

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