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Wisconsin Court of Appeals
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2002 WI App 29
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
Appeal No. |
Cir. Ct. No. 00CF612 | ||||
STATE OF WISCONSIN |
IN COURT OF APPEALS | ||||
DISTRICT I | |||||
State of Wisconsin, Plaintiff-Respondent, v. Joeval M. Jones, Defendant-Appellant. | |||||
APPEAL from a judgment and an order of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Reversed and cause remanded with directions.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
¶1. CURLEY, J.Joeval Jones appeals from the judgment of conviction entered after a jury convicted him of possession of a firearm by a felon, in violation of Wis. Stat. §941.29(2) (1999-2000),1 and as a repeater under Wis. Stat. §939.62. Jones also appeals from the trial court's order denying his motion for postconviction relief. As a repeat offender, Jones faced a maximum penalty enhancer of six years. At sentencing, the trial court added a total of five years to Jones's sentence due to the penalty enhancer - three years to his term of confinement and two years to his period of extended supervision. Jones contends that Wis. Stat. §973.01(2)(c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision; rather, any penalty enhancement must be applied only to confinement in prison. Thus, he concludes that the trial court erred by increasing his period of extended supervision by two years. We agree and remand for resentencing.
I.Background.
¶2. In February of 1998, Jones was convicted of second-degree recklessly endangering safety. See Wis. Stat. §941.30 (1997-98). On February 3, 2000, Jones was convicted of possession of a firearm by a felon as a repeat offender.2 According to Wis. Stat. §939.62(2), a defendant "is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced."
¶3. Jones's crime, possession of a firearm by a felon, is a ClassE felony. See Wis. Stat. §941.29(2).3 The maximum sentence for a ClassE felony committed after December 31, 1999 is five years. See Wis. Stat. §939.50(3)(e).4 Therefore, before taking into consideration the penalty enhancer, Jones faced a bifurcated sentence consisting of two years of confinement followed by three years of extended supervision. See Wis. Stat. §973.01(1) and (2)(b)5.5
¶4. However, based on his status as a repeat offender, Jones faced a maximum penalty enhancer of six years. See Wis. Stat. §939.62(1)(b).6 Therefore, adding this maximum penalty enhancer of six years to the maximum sentence for the underlying crime of five years, Jones faced a maximum sentence of eleven years. The trial court imposed a ten-year sentence, consisting of five years of confinement and five years of extended supervision. Accordingly, the trial court added a total of five years to Jones's sentence due to the penalty enhancer - adding three years to his term of confinement and two years to his period of extended supervision.
II.Analysis.
A. Wisconsin Stat. §973.01(2)(c) is unambiguous.
¶5. The interpretation and application of a statute present questions of law which we review de novo. State v. Murdock, 2000 WI App 170, ¶18, 238 Wis.2d 301, 617 N.W.2d 175. "Statutory interpretation begins with the language of the statute, and if the language is plain and unambiguous, we apply it without further inquiry into extrinsic interpretive aids." State v. T.J. Int'l, Inc., 2001 WI 76, ¶20, 244 Wis.2d 481, 628 N.W.2d 774. "If statutory language is ambiguous, that is, if reasonable minds could differ as to its meaning, we look to the scope, history, context, subject matter, and purpose of the statute to help establish its proper interpretation." Id. (citations omitted).
¶6. The purpose of statutory interpretation is to discern the intent of the legislature, and the primary resource is the language of the statute itself. State v. Eichman, 155 Wis.2d 552, 560, 455 N.W.2d 143 (1990). The language in Wis. Stat. §973.01(2), which is in dispute, reads in relevant part:
(a) Total length of bifurcated sentence. Except as provided in par. (c), the total length of the bifurcated sentence may not exceed the maximum period of imprisonment for the felony.
....
(c) Penalty enhancement. The maximum term of confinement in prison ... may be increased by any applicable penalty enhancement. If the maximum term of confinement in prison ... is increased under this paragraph, the total length of the bifurcated sentence that may be imposed is increased by the same amount.
¶7. The State contends that Wis. Stat. §973.01(2)(c) is ambiguous because "increased by the same amount" may mean that the sentencing court may increase the overall length of the bifurcated sentence by the same amount that it increased the term of confinement, e.g., by adding three years to the term of confinement as well as the period of extended supervision, the term of confinement and the overall sentence are "increased by the same amount." Thus, the State concludes that pursuant to §973.01(2)(c) a court may impose some portion of an increased term of imprisonment for a penalty enhancer as extended supervision rather than confinement. We disagree.
¶8. The State's interpretation of Wis. Stat. §973.01(2)(c) is textually impermissible. First, the State's interpretation is feasible only if the sentencing court divides the penalty enhancer evenly between confinement and supervision. If, for example, the penalty enhancer is five years, the sentencing court could not extend the confinement three years and the supervision two years, because they are not "the same amount." Here, the trial court extended the term of confinement by three years and the period of extended supervision by only two years. Therefore, even under the State's interpretation of §973.01(2)(c), the trial court violated the statute because it failed to increase the term of confinement and the period of extended supervision "by the same amount."
¶9. Second, any increase in the overall bifurcated sentence is a direct function of the increase in either the term of confinement or the period of extended supervision. Therefore, even if the trial court had increased the term of confinement and period of extended supervision each by three years, the bifurcated sentence would have increased by six years, not three. Thus, the State's interpretation of "by the same amount" is implausible.
¶10. Third, the legislature stated that the "the total length of the bifurcated sentence ... is increased by the same amount," rather than "the total length of the bifurcated sentence ... may be increased by the same amount." Wis. Stat. §973.01(2)(c) (emphasis added). Presuming that the legislature chose its words deliberately, see Caflisch v. Staum, 2000 WI App 113, ¶13, 235 Wis.2d 210, 612 N.W.2d 385, under the State's interpretation, the sentencing court is without discretion to increase the period of extended supervision where it increases the term of confinement. Following this rationale, where the term of confinement is increased due to a penalty enhancer, the court must also increase the period of extended supervision by that exact amount.
¶11. Although the statute never mentions adding time to the period of extended supervision due to a penalty enhancer, the State presumes not only that a sentencing court may increase the period of extended supervision, but also that it must increase the period of extended supervision whenever it applies a penalty enhancer. This interpretation of Wis. Stat. §973.01(2)(c) is unsupported by the text and leads to absurd results. See Seider v. O'Connell, 2000 WI 76, ¶32, 236 Wis.2d 211, 612 N.W.2d 659 ("[C]ourts apply the ordinary and accepted meaning of language in statutes."). Accordingly, we reject it.
¶12. Fourth, and finally, Wis. Stat. §973.01(2)(a) states that the total bifurcated sentence may only be extended as provided by §973.01(2)(c). Subsection (2)(c) states that the term of confinement may be increased, but never refers to the period of extended supervision. The State's interpretation violates a well-established principle of statutory construction: expressio unius est exclusio alterius. Under this principle, "the enumeration of specific alternatives in a statute is evidence of legislative intent that any alternative not specifically enumerated is to be excluded." C.A.K. v. State, 154 Wis.2d 612, 621, 453 N.W.2d 897 (1990). As conceded by the State:
If the trial court['s] interpretation were the correct one, it would have been far simpler for the legislature simply to state: "The maximum term of confinement in prison specified in par. (b), and the total length of the bifurcated sentence that may be imposed, may both be increased by any applicable penalty enhancement."
Because the legislature specified one exception, i.e., increasing the maximum term of confinement, see § 973.01(2)(c), to the general rule that the total length of the bifurcated sentence may not exceed the maximum period of imprisonment for the felony, see § 973.01(2)(a), we presume that the legislature intended to exclude other exceptions. See State v. Cetnarowski, 166 Wis.2d 700, 710, 480 N.W.2d 790 (Ct. App. 1992). After reviewing the entire statutory section and related subsections together, see Nekoosa-Edwards Paper Co. v. Public Serv. Comm'n, 8 Wis.2d 582, 592, 99 N.W.2d 821 (1959), we conclude that the State's interpretation of §973.01(2)(c) is not "in harmony with the general scheme of the law." Van Dyke v. Milwaukee, 159 Wis. 460, 469, 150 N.W. 509 (1915).
¶13. Moreover, the State's interpretation of Wis. Stat. §973.01 is refuted by the plain language of the statute. See State Bank of Drummond v. Nuesse, 13 Wis.2d 74, 78, 108 N.W.2d 283 (1961) ("The plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow or hidden sense."). The plain language of the statute states that the "term of confinement ... may be increased by any applicable penalty enhancement." Wis. Stat. §973.01(2)(c). The second sentence of §973.01(2)(c) is simply illustrative of the relationship between the term of confinement and the overall bifurcated sentence - indicating that where the term of confinement is increased by a penalty enhancer, the overall sentence will naturally be increased by the same amount. In the absence of similar language relating to the period of extended supervision, we conclude that §973.01(2)(c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision rather than confinement in prison.
B. The Wisconsin Criminal Penalties Study Committee supports this conclusion.
¶14. "The well[-]established tenets of the plain meaning rule preclude courts from resorting to legislative history to uncover ambiguities in a statute otherwise clear on its face." State ex rel. Cramer v. Court of Appeals, 2000 WI 86, ¶37, 236 Wis.2d 473, 613 N.W.2d 591. "While legislative history cannot be used to demonstrate that a statute unambiguous on its face is ambiguous, there is no converse rule that statutory history cannot be used to reinforce and demonstrate that a statute plain on its face, when viewed historically, is indeed unambiguous." State v. Martin, 162 Wis.2d 883, 897 n.5, 470 N.W.2d 900 (1991). Therefore, on occasion, this court consults legislative history and other sources "to show how that history supports our interpretation of a statute otherwise clear on its face." Seider, 2000 WI 76 at ¶52.
¶15. Act 283, which established the truth-in-sentencing legislation, also created the Criminal Penalties Study Committee. 1997 Wis. Act 283, § 419. The Criminal Penalties Study Committee is "an 18-person bipartisan and diverse group of judges, prosecutors, criminal defense lawyers, legislators, academics, corrections and law enforcement officials, and members of the public." Michael B. Brennan & Donald V. Latorraca, Truth-in-Sentencing, Wisconsin Lawyer, vol. 73, no. 5, at 14, 58 (May 2000).7 The Committee was charged with the responsibility of making recommendations regarding the truth-in-sentencing legislation and drafting proposed legislation necessary to implement the recommendations. State of Wisconsin Criminal Penalties Study Committee, Final Report, August 31, 1999, at6.
¶16. On August 31, 1999, the Committee issued its report. Id. The Committee made two recommendations regarding penalty enhancers under Wis. Stat. §973.01(2)(c). First:
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. [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 charge while likewise increasing the overall maximum term of imprisonment by the same amount. It does not increase the maximum term of extended supervision.
Id. at 60 (footnotes omitted). And second:
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.
Id. at 20 (footnotes omitted).
¶17. The Criminal Penalties Study Committee's Final Report clearly supports our interpretation of Wis. Stat. §973.01(2)(c). "By confirming that our under- standing of [the] law conforms with [the Committee's interpretation], we better fulfill our duty of effectuating the legislature's intent." Seider, 2000 WI 76 at ¶52.
C. The matter is remanded for resentencing.
¶18. A court's authority in sentencing is controlled by statute. See Donaldson v. State, 93 Wis.2d 306, 310, 286 N.W.2d 817 (1980). As explained by the supreme court:
The fashioning of a criminal disposition is not an exercise of broad, inherent court powers. [B]ased upon separation of powers principles, [ ] it is for the legislature to prescribe the punishment for a particular crime and it is the duty of the court to impose that punishment. If the authority to fashion a particular criminal disposition exists, it must derive from the statutes.
Grobarchik v. State, 102 Wis.2d 461, 467, 307 N.W.2d 170 (1981) (citations omitted). Thus, while we support "a wide choice in dealing with a convicted person in regard to [ ] punishment and rehabilitation," see Prue v. State, 63 Wis.2d 109, 114, 216 N.W.2d 43 (1974), that exercise of discretion must be authorized by statute.
¶19. As noted, increasing Jones's period of extended supervision by two years was not authorized by Wis. Stat. §973.01. Accordingly, Wis. Stat. §973.13 states:
In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.
Therefore, we commute Jones's period of extended supervision to three years, the maximum permitted for a Class E felony under §§ 939.50, 939.62 and 973.01. See State v. Zimmerman, 185 Wis.2d 549, 552, 559, 518 N.W.2d 303 (Ct. App. 1994) (holding that where a trial court imposed a maximum penalty in excess of that permitted by law by imposing a penalty enhancer, the excess portion of the sentence was void pursuant to §973.13, and the sentence is commuted to the maximum).
¶20. However, we have also held that when a sentence in excess of the maximum penalty has been commuted, the sentencing court may restructure the sentence if the premises and goals of the prior sentence have been frustrated. See State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841 (Ct. App. 1996). As stated in Holloway:
On the issue before us, §973.13, Stats., is more remarkable for what it does not say than what it does. The statute clearly invalidates the excess portion of an enhanced repeater sentence which is [in excess of the maximum penalty].... However, the statute does not otherwise address other components or conditions of the sentence which do not directly bear upon the duration of the term imposed.
....
Sentences are to be individualized to meet the facts of the particular case and the characteristics of the individual defendant.... We should not restrict the discretionary authority of a court at resentencing when the underlying premise for an original sentence no longer exists. Resentencing is generally the proper method for correcting a sentencing error.
Holloway, 202 Wis.2d at 698-700 (citations omitted).
¶21. Jones's bifurcated sentence is two-pronged. Both prongs of the bifurcated sentence, the term of confinement and the period of extended supervision, have a maximum term authorized by statute. Additionally, the overall length of the bifurcated sentence has a maximum statutory length. In sentencing, the two prongs often form a symbiotic relationship. As such, a variation in the length of either prong may affect the other, as well as the overall length of the bifurcated sentence.
¶22. At present, the "maximum term authorized by statute" would subject Jones to a maximum bifurcated sentence of eleven years, including maximum terms of eight years of confinement and three years of extended supervision. In its discretion, the trial court added only three years to Jones's term of confinement. However, the trial court may have added fewer years to Jones's term of confinement because it had also added two years to his extended supervision. Now, in light of our interpretation of Wis. Stat. §973.01, the trial court may choose to alter the structure of Jones's sentence while not exceeding these maximum penalties.
¶23. Because the underlying premise of Jones's original sentence may have been frustrated, the trial court should have the opportunity to restructure his sentence in order to bring it in conformity with the law and to effectuate the court's intent. See generally Holloway, 202 Wis.2d at 700-01 (holding that "when sentence [in excess of maximum penalty authorized] is commuted," the sentencing court may alter the sentence in order to bring it into conformity with law and to effectuate court's intent, or, "in the appropriate case and in proper exercise of discretion, may further ease a sentence already commuted"). Accordingly, upon remand, the court is directed to enter an amended judgment of conviction.
By the Court.-Judgment and order reversed and cause remanded with directions.
Recommended for publication in the official reports.
1 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.
2 Jones does not challenge his status as a repeat offender.
3 Wisconsin Stat. §941.29(2) provides:
Possession of a firearm.
....
(2) A person specified in sub. (1) is guilty of a Class E felony if he or she possesses a firearm under any of the following circumstances:
(a) The person possesses a firearm subsequent to the conviction for the felony or other crime, as specified in sub. (1)(a) or (b).
(b) The person possesses a firearm subsequent to the adjudication, as specified in sub. (1)(bm).
(c) The person possesses a firearm subsequent to the finding of not guilty or not responsible by reason of insanity or mental disease, defect or illness as specified in sub. (1)(c) or (d).
(d) The person possesses a firearm while subject to the court order, as specified in sub. (1)(e) or (g).
(e) The person possesses a firearm while the injunction, as specified in sub. (1)(f), is in effect.
4 Wisconsin Stat. §939.50(3)(e) provides:
Classification of felonies.
(3) Penalties for felonies are as follows:
....
(e) For a Class E felony, a fine not to exceed $10,000 or imprisonment not to exceed 5 years, or both.
5 Wisconsin Stat. §973.01(1) and (2)(b)5 provide:
Bifurcated sentence of imprisonment and extended supervision. (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.
(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:
....
5. For a Class E felony, the term of confinement in prison may not exceed 2 years.
6 Wisconsin Stat. §939.62(1)(b) provides:
Increased penalty for habitual criminality.
(1) If the actor is a repeater ... 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.
7 The State incorrectly argues that this article from the Wisconsin Lawyer "is fully consistent with the trial court's understanding" of Wis. Stat. §973.01(2)(c). The article was authored, in part, by Michael B. Brennan, who is a Milwaukee County Circuit Court judge and served as staff counsel for the Criminal Penalties Study Committee. The article contains a section entitled "Penalty Enhancers," which states, in relevant part:
Under determinate sentencing, if the prosecution pleads and proves a penalty enhancer, the maximum initial term of confinement increases by the length of the penalty enhancer, as does the maximum term of imprisonment. Assume an offender is found guilty of committing a burglary, a Class C felony punishable by up to 10 years of initial confinement and 15 years maximum imprisonment, while armed with a dangerous weapon, a five-year penalty enhancer on a Class C felony. Under Act 283 the maximum initial term of confinement increases from 10 to 15 years, and the maximum term of imprisonment increases from 15 to 20 years.
The penalty enhancer for habitual criminality works the same way. If an offender commits a Class C felony punishable by up to 10 years of initial confinement and 15 years maximum imprisonment, the maximum term of confinement increases by 10 years.... Accordingly, the maximum term of initial confinement increases by 10 years to 20 years, and the maximum term of imprisonment increases by 10 years to 25 years.
Michael B. Brennan & Donald V. Latorraca, Truth-in-Sentencing, Wisconsin Lawyer, vol. 73, no. 5, at 14, 57 (May 2000) (footnotes omitted). In each example, the penalty enhancer is added only to the term of confinement, and the bifurcated sentence, a.k.a. the maximum term of imprisonment, is increased only to that extent. The authors never apply a penalty enhancer to increase the term of extended supervision. Therefore, this article actually supports Jones's argument.