Nov. 6, 2015 – Criminals serving prison sentences under enhanced penalties for repeat misdemeanor offenses can petition circuit courts for adjusted sentences after serving 75 percent of the prison term, a state appeals court has ruled.
The Monroe County Circuit Court had ruled that Jamie Anderson, a repeat offender serving a two-year prison sentence for two counts of misdemeanor battery, was not eligible for statutory sentence adjustment similar to adjustments felons can receive.
But in State v. Anderson, 2014AP982 (Nov. 5, 2015), a three-judge panel for the District IV Court of Appeals ruled that sentence adjustments are also available to enhanced misdemeanants serving prison time, under Wis. Stat. section 973.195.
Because of the need for a published opinion, the panel addressed the merits of the case even though Anderson raised the issue for the first time on appeal, forfeiting his arguments, and the issue presented was moot since Anderson has served his time.
The panel noted that the decision only “applies to persons convicted of enhanced misdemeanors who actually receive an enhanced misdemeanor prison term,” not to all enhanced misdemeanants who receive jail time – imprisonment for less than a year.
“We flag this because we have used language in the past suggesting that all enhanced misdemeanor sentences must be bifurcated sentences that include prison time,” wrote Judge Paul Lundsten.
“However, courts are not required to impose a bifurcated sentence, which would necessarily include prison time, on persons convicted of enhanced misdemeanors.”
Similarly, the panel said the decision does not address situations involving misdemeanants serving prison time solely because they also committed a felony.
Under section 973.195(1r)(a), persons serving prison time under bifurcated sentences – a term of confinement in prison followed by a term of extended supervision – “may petition the sentencing court to adjust the sentence if the inmate has served at least the applicable percentage of the term of confinement in prison portion of the sentence.”
The state conceded that Anderson was serving a bifurcated sentence but argued that sentence adjustments are not available to enhanced misdemeanants because the statute does not specify an “applicable percentage” for enhanced misdemeanors.
The appeals panel said it might agree with the state if not for State v. Tucker, 2005 WI 46, 279 Wis. 2d 697, 694 N.W.2d 926, in which the Wisconsin Supreme Court allowed an offender to petition for sentence adjustment because the statute on the “applicable percentage” that applied to the inmate’s felony category was ambiguous.
“Accordingly, following Tucker, we conclude that there is ambiguity as to whether persons serving enhanced misdemeanor prison terms can satisfy the ‘applicable percentage’ requirement,” Judge Lundsten wrote.
The panel rejected the state’s claim that no ambiguity exists and siding with Anderson could produce absurd results because repeat offenders with eligibility for sentence adjustments could end up doing the same hard time as non-repeaters.
“The flaw in the State’s hypothetical is that it ignores substantial differences in the treatment of such misdemeanants,” wrote Lundsten, noting that repeaters are subject to extended supervision and possible revocation, and non-repeaters are not.
“And, another fact ignored by the State is that the non-repeater, as a jail inmate, is eligible for early release under Wis. Stat. § 302.43,” Judge Lundsten explained.
Determining an ambiguity exists, the panel resolved it in favor of Anderson, reviewing various sources to conclude the statute could reasonably be construed to allow sentence adjustment for enhanced misdemeanants.
The state had argued the statute does not apply to enhanced misdemeanants because the legislature knew repeat misdemeanor offenders could serve prison time but did not attach an “applicable percentage” to them, evidence of a purposeful exclusion.
“The State’s on-the-legislature’s-radar argument would have applied with greater force in Tucker,” wrote Lundsten, noting that Tucker also addressed a class of inmates that the legislature neglected to consider but knew about when drafting the statute.
“We conclude that the legislature intended that the sentence adjustment statute apply to enhanced misdemeanor prison terms, even though the legislature did not specify an ‘applicable percentage’ for that category,” Judge Lundsten wrote.
Finally, the panel ruled that enhanced misdemeanants must serve 75 percent of the prison portion of their term before petitioning for an adjusted sentence. The same percentage applies to Class I felons and is the lowest applicable percentage specified.