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Repeater provisions apply to confinement

What the court held

Case: State of Wisconsin v. Joseph F. Volk, No. 01-3342-CR.

Issue: When a sentencing court imposes a penalty enhancer, may it add the additional time to both the period of confinement, and the period of extended supervision?

Holding: No. Only confinement time may be increased when using a penalty enhancer.

Counsel: Charles B. Vetzner, Madison, for appellant; Robet J. Jambois, Kenosha; Lara M. Herman, Madison, for respondent.

When a court enhances a defendant’s sentence as a repeater, pursuant to Section 973.01(2)(c), the enhancer can only be applied to the confinement portion of the bifurcated sentence, not the extended supervision portion, the Wisconsin Court of Appeals held on Oct. 16.

Aggravated Battery

On March 20, 2000, the State filed a criminal complaint against Joseph F. Volk, alleging aggravated battery and disorderly conduct as a repeat offender. The complaint alleged that Volk hit his live-in girlfriend, Rhonda Swim, in the face, pushed her to the floor and stuck his fingers down her throat, causing her to spit up blood and damaging her tongue and throat.

Prior to trial, the State filed a motion for the introduction of "other acts" evidence pursuant to sec. 904.04. The evidence consisted of six prior acts of domestic violence against his former wife.

Kenosha County Circuit Court Judge Wilbur W. Warren admitted the evidence, and Volk was found guilty. On the enhanced aggravated battery charge, Volk faced a total of 12 years – five years of imprisonment, and five years of supervised release on the underlying charge, plus two years for the repeater provision.

The court sentenced him to six years of confinement, followed by six years of supervised release. Volk appealed both the admission of the other acts evidence and his sentence.

In a decision by Judge Neal P. Nettesheim, the court of appeals affirmed on the other acts issue, but reversed the sentence.

Other Acts

Applying the framework of State v. Sullivan, 216 Wis.2d 768, 576 N.W.2d 30 (1998), the court concluded the evidence of prior domestic abuse was properly admitted. Volk did not dispute that the evidence was offered for an acceptable purpose – to refute Volk’s statement to police that he did not intend any harm to Swim, and to show the absence of mistake or accident.

However, Volk contested whether the evidence was probative, and whether any probative value was outweighed by the danger of unfair prejudice.

Although none of the prior acts were identical, the court concluded they were sufficiently similar to have probative value. The court reasoned, "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 … Specifically, the altercations described by Love were similar in that Volk had been drinking, the violence was perpetrated against a domestic partner and Volk’s actions involved strikes to the head and choking."

Penalty Enhancer

Nevertheless, the court reversed the sentence, concluding that any additional two years that the court could impose pursuant to sec. 973.01(2)(c) must take the form of confinement, not supervised release.

The statute provides, "The maximum term of confinement in prison specified in par. (b) may be increased by any applicable penalty enhancement. If the maximum term of confinement in prison specified in par. (b) is increased under this paragraph, the total length of the bifurcated sentence that may be imposed is increased by the same amount."

The court noted, "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."

The court concluded, "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."

Legislative History

The legislative history also provides ample support for this conclusion, the court found, quoting the following passages from the final report of the Criminal Penalties Study Committee, which recommended the legislation:

"If pleaded and proved, these enhancers increase the maximum term of confinement for the underlying crime and increase the overall maximum term of imprisonment as well. They do not lengthen the maximum term of extended supervision for the underlying crime…. [S]uppose that one has been convicted of the crime of assault by a prisoner while armed with a dangerous weapon. …

The dangerous weapon penalty enhancer adds 5 years to the maximum term of confinement for the underlying assault charge while likewise increasing the overall maximum term of imprisonment by the same amount. It does not increase the maximum term of extended supervision."

The report also provides, "The extended supervision caps … would apply regardless of whether the penalties for the crime of conviction have been increased … In these instances the maximum term of confinement increases … The maximum term of extended supervision, however, does not increase."


The court then rejected the State’s argument that its interpretation produces an unreasonable or absurd result by limiting the trial court’s discretion.

The court reasoned, "the legislature wanted a habitual criminal’s term of confinement enhanced – not the term of extended supervision. This decision makes eminent sense since it confers greater protection to the public from those who have already demonstrated a propensity to engage in criminal behavior."


Wisconsin Court of Appeals

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Case Analysis

The court added, "Even though a trial court has wide discretion in the matter of sentencing, the legislature is the ultimate authority that sets the maximum, and sometimes minimum, terms of imprisonment and confinement. The State’s argument is better directed to the legislature than to this court."


Turning to the remedy, however, the court rejected Volk’s request that the court leave intact the six-year term of confinement, and merely commute the six-year term of extended supervision to the maximum of five.

The court acknowledged that sec. 973.13 provides, "In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings."

Nevertheless, the court held that the entire sentence must be vacated and remanded for resentencing, citing State v. Holloway, 202 Wis. 2d 694, 551 N.W.2d 841 (Ct. App. 1996), for the proposition that sec. 973.13 does not address components or conditions of a sentence which do not directly bear on the duration of the term.

The court quoted Holloway as follows: "Sentences are to be individualized to meet the facts of the particular case and the characteristics of the individual defendant. … We should not restrict the discretionary authority of a court at resentencing when the underlying premise for an original sentence no longer exists. Resentencing is generally the proper method of correcting a sentencing error."

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David Ziemer can be reached by email.

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