March 11, 2010 – The Wisconsin Court of Appeals, in State v. Barfell, No. 2009AP1568-CR (Mar. 10, 2010), affirmed the Wisconsin rule that procedural statutes are to be applied retroactively in a case involving a sentencing appeal.
Thomas H.L. Barfell was convicted of burglary in the Winnebago County Circuit Court. During sentencing, the circuit court erred in that it didn’t state on the record that it considered sentencing guidelines then in effect, and as a result, Barfell appealed and sought resentencing. However, in the interim, the statute that required the circuit court to consider sentence guidelines was repealed.
Before Barfell was sentenced in 2008, the Wisconsin Supreme Court imposed an obligation on a circuit court to consider sentencing guidelines in accordance with Wis. Stat. § 973.017(2)(a), and to indicate on the record that it fulfilled its obligation. See State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, ¶ 2. The court in Barfell’s case did not consider the sentencing guidelines and did not state on the record that it had considered the guidelines. However, while Barfell’s appeal was in progress, the Wisconsin legislature repealed Wis. Stat. § 973.017(2)(a), because the Wisconsin Sentencing Commission was defunded in the 2007-08 Biennial Budget. See Barfell, ¶ 4.
It should be noted that Barfell, in his initial brief to the court, acknowledged that the sentence the circuit court imposed of two years of confinement and three years of extended supervision, was very reasonable.
In this case, the court of appeals reviewed de novo whether the repeal of a statute merits retroactive or prospective application, and whether the retroactive application of a repealed statute violated the ex post facto clause of the Wisconsin constitution.
Retroactive application of statutes
The rule in Wisconsin is that procedural statutes are to be applied retroactively and substantive statutes are to be applied prospectively. See Barfell, ¶ 8, citing Trinity Petroleum, Inc., 302 Wis. 2d 299, ¶ 40. In Trinity, the supreme court stated that “[A] procedural law is that which concerns the manner and order of conducting suits or the mode of proceeding to enforce legal rights and the substantive law is one that establishes the rights and duties of a party.” See Barfell, ¶ 8.
The court of appeals concluded that the sentencing guideline statute was a procedural statute that did not establish a right running to Barfell, but rather imposed a duty on the court, and that a repeal of a procedural statute is to be applied retroactively. See Id.
In addition, the sentencing commission was abolished effective Oct. 29, 2007, almost one year before Barfell was sentenced. The court found that by the time Barfell appeared for sentencing there was no sentencing commission in existence to adopt sentencing guidelines, so therefore the issue was moot.
Ex post facto analysis
The court of appeals further analyzed Barfell’s contention that the retroactive application of the repeal of Wis. Stat. § 973.017(2)(a) is prohibited under the ex post facto clause of the federal and state constitutions.
An ex post facto law includes any law that was passed after the commission of the offense for which the party is being tried. See Barfell, ¶ 12. The court must determine whether the application of the new law (1) criminalizes conduct that was innocent when committed, (2) increases the penalty for conduct after its commission, or (3) removes a defense that was available at the time the act was committed. See Id.
The court had already determined that Wis. Stat. § 973.017(2)(a) was a procedural statute that mandated a duty on the court at the time of sentencing, therefore, it does not criminalize innocent conduct, increase the penalty for burglary, or deny Barfell a previously existing defense. As a result, the retroactive application of the repeal of the statute does not implicate the ex post facto clause of the federal and statute constitutions.
As a result, while the court of appeals did acknowledge that the circuit court erred in not taking into account sentencing guidelines when sentencing Barfell, it concluded that the error was not relevant because the repeal of Wis. Stat. § 973.017(2)(a) is to be applied retroactively. Judgment was affirmed.