The decision effectively reinstates the decision last year in State v. Jones, 2002 WI App 29, 250 Wis. 2d 77, 640 N.W.2d 151, ordered withdrawn, 2002 WI 53, 252 Wis. 2d 592, 645 N.W.2d 610. In that case, rather than affirming or reversing the court of appeals, the Supreme Court ordered the decision withdrawn, because the day before the decision was issued, Jones voluntarily withdrew his appeal.
The Supreme Courts decision in Jones is silent as to why the appeal was voluntarily withdrawn, but it seems likely that he realized that, just like Volk in this case, he would be better off if he didnt prevail on appeal.
Why defendants given enhancements to their extended supervision, rather than their confinement, are challenging their sentences is a mystery. Any appeals raising the same issue that are currently pending should be immediately withdrawn in the wake of this decision.
Defendants have nothing to gain by directly appealing an unlawful enhancement of extended supervision, and plenty to lose Volk will likely end up with an additional year of confinement as his reward for prevailing on appeal.
This is particularly true, because defendants can always wait until their confinement is completed, or even until the maximum legal length of supervised release is completed, without worrying about increasing the length of confinement.
In State v. Hanson, 2001 WI 70, 244 Wis.2d 405, 628 N.W.2d 759, 763-764, the Wisconsin Supreme Court held that procedural bars, such as failure to timely challenge an unlawful sentence, cannot defeat a challenge to an unlawful sentence.
Without question, sitting idly on a valid ground for appeal, until it is advantageous to raise it, smacks of the sort of gamesmanship that the court deplored in Grobarchik v. State, 102 Wis.2d 461, 471, 307 N.W.2d 170, 176 (1981): A sentencing proceeding is not a game, and when a trial court mistakenly imposes a criminal disposition that is not authorized by law, the result should not be a windfall to the defendant.
Given the rule in Hanson, however, such gamesmanship may be an evil that the courts have no choice but to tolerate.
Attorneys also need to be aware that, effective Feb. 1, 2003, the statute will be amended slightly. The amendment will explicitly provide that the length of extended supervision must be a minimum of 25 percent of the sentence, including the enhancement.
The courts holding on the other acts evidence is also noteworthy for providing a precedent to support the admission of prior domestic violence incidents in almost all such cases. Three similarities were noted by the court: the defendant was drinking; all acts were against a domestic partner; and all involved strikes to the head and choking.
These are similarities that will exist in the vast majority of domestic violence cases, in which there are prior acts to consider. Such cases almost always involve alcohol or drugs, and strikes to the head and choking are certainly not an uncommon feature.
– David Ziemer
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David Ziemer can be reached by email.