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  • WisBar News
    February 26, 2014

    Court Provides Guidance on Bifurcated Sentences Involving Penalty Enhancers

    A three-judge appeals court panel has clarified that courts must apply a penalty enhancer to a misdemeanor crime first, then bifurcate the sentence accordingly. That differs from felonies, where courts bifurcate the sentence first, then apply the penalty enhancer.

    Feb. 26, 2014 – A state appeals court recently tackled the “vexing problem” that arises when a penalty enhancer for habitual criminality triggers the need to impose a bifurcated sentence on the underlying misdemeanor crime or crimes.

    Under Wis. Stat. section 973.01, a bifurcated sentence – a period of confinement and period of extended supervision – applies to both felonies and misdemeanors “whenever a court sentences a person to imprisonment in the Wisconsin state prisons.”

    As the three-judge panel for the District II Court of Appeals explains in State v. Lasanske, 2012AP2016-CR (Feb. 26, 2014), all felonies are punishable by imprisonment in state prison. But prison sentences don’t apply to misdemeanors unless a penalty enhancer transforms a misdemeanor jail sentence to a prison sentence.

    “In other words, absent inclusion of the enhancer at the outset, there would be no term of imprisonment in the Wisconsin state prisons to bifurcate into terms of confinement in prison and extended supervision,” wrote Chief Appeals Court Judge Richard Brown.

    This creates a problem when trial courts are trying to structure bifurcated sentences involving misdemeanors with penalty enhancers, Judge Brown explained.

    One-judge opinions have addressed the issue, but the appeals court converted this case to a three-judge decision “in order to have some established law on the subject.”

    How Should the Misdemeanor Sentence Be Structured?

    For felonies, courts add penalty enhancers to sentences only after determining the bifurcated sentence, which includes a confinement period not less than one year.

    But courts cannot do that for misdemeanors, because a penalty enhancer is what triggers the need for a bifurcated sentence, the appeals court explained. Nevertheless, the penalty enhancement statute section 973.01(2)(c), does not make this distinction.

    Thus, the panel concluded that section 973.01(2)(c) “is not applicable to misdemeanors” and clarified the proper sentencing protocol for misdemeanors with penalty enhancers:

    “[F]or a misdemeanor, an enhancement transforms the misdemeanor sentence into a sentence to the state prisons, which then must be bifurcated,” Judge Brown explained.

    “It would have been nice had the legislature put the misdemeanor penalty statutes in a different statute and explained the process for them,” Judge Brown noted. “We think draftsmanship, or the lack of it, is what has sowed confusion.”

    How the Case Arose

    Lee Thomas Lasanske pleaded guilty to one count of “receiving stolen property” and one count of “operating a motor vehicle to elude and officer.” These crimes are both misdemeanors with a base penalty of nine months in prison plus up to a $10,000 fine.

    However, Lasanske was a repeat offender. Thus, the court applied a penalty enhancer for habitual criminals under section 939.62(1)(a), which allows the court to increase penalties with maximums of a year imprisonment or less to “not more than two years.”

    The sentencing court bifurcated Lasanske’s full sentence, on both counts, to two years confinement and two years of extended supervision. Lasanske appealed, arguing that there is “no such thing as a bifurcated [sentence] on a misdemeanor.”

    The appeals court panel concluded that the circuit court judge properly bifurcated Lasanske’s sentence, noting he faced “up to two years” on each count.

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