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BENCH BLOG: Appeals court clarifies penalty enhancers

By: Jean DiMotto//March 13, 2014//

BENCH BLOG: Appeals court clarifies penalty enhancers

By: Jean DiMotto//March 13, 2014//

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Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC.

Grabbing the bull by the horns, the Court of Appeals clarified a recurring issue in those misdemeanor sentencings that involve a penalty enhancer.

Lee Thomas Lasanske pled guilty in 2004 to two misdemeanors: receiving stolen property and operating a motor vehicle to elude an officer. Both of the charges carried the penalty enhancer of habitual criminality. This enhancer is statutorily authorized if a defendant has a prior felony conviction or three prior misdemeanor convictions within five years of the current charges.

Without the penalty enhancer, the maximum possible sentence for each of these misdemeanors was nine months of incarceration and a $10,000 fine. An incarceratory sentence of less than one year is served in the local county jail.

Due to the penalty enhancer, however, the maximum sentence Lasanske faced for each misdemeanor was up to two years of imprisonment. Such a sentence would be served in a Wisconsin prison.

In State v. Lasanske, Waukesha County Circuit Judge William Domina imposed the maximum sentence on each count, to be served consecutively. Since this sentence was longer than one year, it was a prison sentence. Prison sentences must be bifurcated into initial confinement (time actually behind bars) and extended supervision (similar to what we used to understand as parole).

Domina bifurcated Lasanske’s sentence on each count into one year of initial confinement and one year of extended supervision. Thus, Lasanske would serve a total of two years of initial confinement followed by two years of extended supervision.

Giving Lasanske an opportunity for rehabilitation, Domina also made drug treatment, the Earned Release Program, available to Lasanske behind bars. If this six- to nine-month program is successfully completed, the inmate is released early from the confinement portion of his sentence and goes immediately into extended supervision.

Lasanske did complete the program successfully and was released to extended supervision. Thereafter he had multiple violations of supervision and was repeatedly revoked from extended supervision to again serve time behind bars.

In 2012, Lasanske moved for correction or modification of his sentence, arguing that there is “no such thing as a bifurcated [sentence] on a misdemeanor.” The motion was denied and he appealed.

Court of Appeals weighs in

Ordinarily appeals in misdemeanor cases are decided by just one judge and are not published. But the issue Lasanske presented had come up at least five times in the past two years and the one-judge appellate decisions were not uniform in their analyses. So Court of Appeals Chief Judge Richard Brown ordered that Lasanske’s case be decided by a three-judge panel and recommended the opinion for publication “in order to have some established law on the subject.”

Brown wrote the decision for the court. He began his analysis by looking at how penalty enhancers are imposed in felony cases. There, the base sentence is determined first and bifurcated according to various statutory provisions. Only then is the penalty enhancer applied, and it is applied only to the confinement portion of the sentence, which necessarily increases the total sentence by the same amount.

In contrast, enhanced-penalty misdemeanor sentences cannot be structured in this fashion “because it is the enhancer that transforms the misdemeanor jail sentence into a term of imprisonment in the state prisons.” Once the enhancer is applied, the sentence is then bifurcated. In other words, the enhancer is added at the front end and followed by bifurcation, just the opposite of the procedure for enhanced felony sentencings.

Brown blamed poor legislative drafting for “sow[ing] confusion.” He opined that enhanced misdemeanor sentencing should have had its own separate statute rather than one portion of the current statute being inapplicable to misdemeanors in order to prevent the enhancer from being applied twice.

Applying this analysis to Lasanske’s facts, the court found that Domina applied the enhancer first. He then bifurcated the sentence, respecting the rules that no more than 75 percent of the total sentence may be confinement and no less than 25 percent may be extended supervision.

Since all the rules were followed when Domina structured Lasanske’s sentence, the decision was affirmed.

Commentary

This case is an excellent example of appellate leadership by Brown. Ordering a three-judge panel to decide the case and recommending the opinion for publication does indeed establish law for this issue.

The rules for enhanced misdemeanor sentencing are clearly explicated, and the source of previous confusion is identified.

The opinion is well conceived, succinct and readable.

It is a service to trial judges across the state.

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