State v. Lasanske
State v. Lasanske
Opinion of the Court
¶ 1. This appeal concerns the vexing problem of how our trial courts may structure bifurcated sentences when the base penalty for a misdemeanor does not require bifurcation but an applicable penalty enhancement does.
Facts
¶ 2. In 2004, Lee Thomas Lasanske pled guilty to one count of receiving stolen property, in violation of Wis. Stat. § 943.34(l)(a) (2011-12),
¶ 4. In 2012, Lasanske moved to correct or modify his sentence and amend his judgment of conviction on grounds that his sentence was defective because there is "no such thing as a bifurcated [sentence] on a misdemeanor." That motion was denied, as was his motion for reconsideration. Lasanske appeals.
Bifurcation and Enhancement of Felony Sentences Under Wis. Stat. § 973.01
¶ 5. With very few exceptions,
¶ 6. With felonies, the sentencing court starts under Wis. Stat. § 973.01(2)(a) with the applicable maximum term of imprisonment for the felony in question under the state statutes, setting aside the penalty enhancement, to determine the confinement portion of the bifurcated sentence under § 973.01(2)(b) and extended supervision under § 973.01(2)(d). The term of confinement in prison may not be less than one year, and, except as provided in para, (c) (the penalty enhancement paragraph), the confinement portion is subject to a set maximum, set forth in para, (b), for each classified felony. Sec. 973.01(2)(b)l-9. For other crimes, the confinement portion may not exceed "75% of the total length of the bifurcated sentence." Sec. 973.01(2)(b)10. Similarly, the maximum extended supervision depends upon whether a felony is classified or unclassified, § 973.01(2)(d), and for each classified felony the extended supervision portion is subject to a set maximum. Sec. 973.01(2)(d)l-6. Finally, all bifurcated sentences are subject to the requirement that the extended supervision portion "may not be less than 25% of the length of the term of confinement in prison imposed under par. (b)." Sec. 973.01(2)(d).
¶ 7. Only after determining an appropriate bifurcated sentence in compliance with the limits imposed by Wis. Stat. § 973.01(2)(b) and (d) does the court add a penalty enhancer to a felony sentence. See
Bifurcation of Enhanced Misdemeanor Sentences Under Wis. Stat. § 973.01
¶ 8. In 2003, Wis. Stat. § 973.01(1) was amended to make it applicable to misdemeanor crimes as well as felonies. 2001 Wis. Act 109, § 1114. Sentencing for enhanced misdemeanors is a different procedure than sentencing for enhanced felonies. The first step for felonies, to determine and bifurcate the original sentence without considering the enhancer, is impossible for misdemeanors because it is the enhancer that transforms the misdemeanor jail sentence into a term of imprisonment in the state prisons, which then must be bifurcated per § 973.01.
¶ 9. Determining the bifurcated structure of a misdemeanor begins under Wis. Stat. § 973.01(2)(a) with the applicable maximum term of imprisonment for the misdemeanor, plus additional imprisonment authorized by any applicable penalty enhancement statute. The confinement portion "may not exceed 75% of the total length of the bifurcated sentence." Sec. 973.01(2)(b)10. The extended supervision portion "may not be less than 25% of the length of the term of confinement in prison imposed under par. (b)." Sec. 973.01(2)(d). We know that we must add the enhancer at the outset and not under para, (c) as with felonies because para, (c) refers to "confinement in prison," and misdemeanors do not become punishable by prison until after the enhancer is added. We say again, absent the inclusion of the penalty enhancer at the outset under para, (a), there is no bifurcated sentence from which to arrive at a maximum term of confinement in prison under subd. (b)10. Thus, subd. (2)(c)l. is inapplicable to misdemeanor cases: any attempt to apply para. (2)(c) to a misdemeanor bifurcated sentence would be to apply the penalty enhancer twice.
¶ 10. One can see how this statutory framework creates confusion since the penalty enhancement statutes and Wis. Stat. § 973.01 simply refer to "penalty enhancement" in general. It would have been nice had the legislature put the misdemeanor penalty enhancements in a different statute and explained the process for them. We think draftsmanship, or the lack of it, is
¶ 11. We think that Groce was on the right track. Under the applicable statutory provisions addressing a misdemeanor crime, a penalty enhancer performs an additional function beyond just adding time. Therefore, a different procedure applies than with felonies. Whereas for a felony, an enhancement lengthens the otherwise applicable "maximum term of confinement in prison," for a misdemeanor, an enhancement transforms the misdemeanor sentence into a sentence to the state prisons, which then must be bifurcated. Because no "maximum term of confinement in prison" exists for a misdemeanor until the enhancement is applied, once it is applied, it cannot be applied again. Wis. Stat. § 973.01(2)(c)l. is not applicable to misdemeanors.
¶ 12. Lasanske was eligible for up to two years of imprisonment on each count to which he pled. His sentence had to be bifurcated, with no more than 75%
¶ 13. Lasanske's sentence was thus fair under all of the applicable rules.
By the Court. — Order affirmed.
This case was originally scheduled as a one-judge opinion. On the court's own motion, it was converted to a three-judge
See State v. Smith-Iwer, No. 2013AP1426-CR, unpublished slip op. (WI App Dec. 27, 2013); State v. Groce, No. 2013AP844-CR, unpublished slip op. (WI App Sept. 4, 2013); State v. Griffin, No. 2012AP2631-CR, unpublished slip op. (WI App July 30, 2013); State v. Robinson, No. 2012AP2498-CR, unpublished slip op. (WI App July 23, 2013); State v. Ash, No. 2012AP381-CR, unpublished slip op. (WI App Aug. 15, 2012); State v. Gerondale, Nos. 2009AP1237/1238-CR, unpublished slip op. (WI App Nov. 3, 2009).
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
Lasanske earned early release via a substance abuse treatment program. See Wis. Stat. § 302.05.
See Wis. Stat. § 939.50(2) (penalty for Class A felonies is life imprisonment).
Without a penalty enhancer, a misdemeanor sentence is never a bifurcated sentence because of how felonies and misdemeanors are defined in our statutes. A felony is a "crime punishable by imprisonment in the Wisconsin state prisons" while a misdemeanor is "[e]very other crime." Wis. Stat.
In a number of cases, this court has tried to apply the enhanced felony sentencing procedures to enhanced misdemeanor sentences. See Gerondale, Nos. 2009AP1237/1238-CR; Griffin, No. 2012AP2631-CR. Under these interpretations, the penalty enhancement would be undermined as, for example, a bifurcated sentence of the full two years available under the enhancer could not he applied.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent v. Lee Thomas Lasanske
- Cited By
- 5 cases
- Status
- Published