01-3342 State v. Volk

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“The first sentence of this paragraph clearly and unambiguously authorizes the sentencing court to apply the penalty enhancer to the term of confinement. However, the statute confers no such authorization to the term of extended supervision. This alone strongly suggests that Wis. Stat. sec. 973.01(2)(c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. From this, it logically follows, as set out in the second sentence of the paragraph, that when the penalty enhancer is applied to a term of confinement, the total length of the bifurcated sentence is ‘increased by the same amount.’…

“As we have explained, a sentence under the truth-in-sentencing law consists of a term of confinement and a term of extended supervision. These two components form a symbiotic relationship with the length of one necessarily influencing the length of the other and the overall length of the bifurcated sentence. Although the sentencing court imposes two discrete terms-one of confinement and one of extended supervision-it remains that the end product is but a single sentence. When a crucial component of such a sentence is overturned, it is proper and necessary for the sentencing court to revisit the entire question.

“The probative value of evidence is determined by whether the evidence has a tendency to make a consequential fact more probable or less probable than it would be without the evidence. Here, Volk argues that [his ex-wife] Love’s testimony did not meet this requirement because the altercations described by Love did not involve the particular type of assaultive behavior alleged by [his girlfriend] Swim. Volk reasons that because Love did not testify to an incident involving Volk sticking his fingers down her throat and injuring her tongue and throat, the evidence does not tend to make a consequential fact, here whether Volk intended to harm Swim or whether Swim injured herself, more or less probable than it would have been without Love’s testimony. We disagree. …

“Here, the prior acts testified to by Love were very similar to the events surrounding the charged offense and, as a result, Love’s testimony had a strong tendency to make Volk’s defense less probable than if she had not testified. Unlike the ‘other acts’ evidence rejected by our supreme court in Sullivan which consisted of one prior incident lacking unusual facts or physical contact, Love’s testimony involved a series of incidents involving complex facts and physical contact similar to that alleged by Swim.”

Reversed and remanded for re-sentencing.

Recommended for publication in the official reports.

Dist II, Kenosha County, Warren, J., Nettesheim, P.J.

Attorneys:

For Appellant: Charles B. Vetzner, Madison

For Respondent: Robert J. Jambois, Kenosha; Lara M. Herman, Madison