Judges can set eligibility date for ERP

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"To the extent that the CIP and ERP provisions are linked by nearly identical language, similar subject matter and parallel function in the Truth-in-Sentencing scheme, they are related statutes whose meaning must be harmonized." Hon. Thomas Cane Wisconsin Court of Appeals

The Wisconsin Court of Appeals held on Nov. 16 that trial courts have the authority both to decide whether defendants are eligible for the Earned Release Program, and to determine when the period of eligibility will begin.

In 2003, Miyosha K. White was arrested and charged with two counts of delivery of cocaine as a party to crime. White pleaded no contest, and was sentenced as follows: on count one, 18 months’ initial confinement and eighteen months’ extended supervision; on count two, three years’ initial confinement and four years’ extended supervision, concurrent with the first sentence.

Door County Circuit Court Judge Peter C. Diltz declined to order White eligible for the Challenge Incarceration Program (CIP), popularly known as bootcamp, but did make him eligible for the Earned Release Program (ERP). However, the court held that White would not become eligible for ERP until he had completed two years’ initial confinement.

White appealed, but the court of appeals affirmed in a decision by Judge Thomas Cane.

Section 973.01(3g) provides: "When imposing a bifurcated sentence under this section on a person convicted of a crime … the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible to participate in the earned release program under sec. 302.05(3) during the term of confinement in prison portion of the bifurcated sentence."

The court acknowledged that reasonable persons could construe the language to permit trial judges to only determine whether a defendant was eligible, and not when.

Nevertheless, the court determined that its construction of the statute was dictated by its previous decision in State v. Lehman, 2004 WI App 59, 270 Wis.2d 695, 677 N.W.2d 644, rev. denied, 2004 WI 50, 271 Wis.2d 111, 679 N.W.2d 546, which interpreted a related provision, sec. 973.01(3m).

That statute governs CIP, and provides, in nearly identical language, "When imposing a bifurcated sentence under this section on a person convicted of a crime … the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible for the challenge incarceration program under sec. 302.045 during the term of confinement in prison portion of the bifurcated sentence."

In Lehman, the court also found it a reasonable construction that trial courts have only the authority to decide whether felons were eligible for CIP, not when.

However, the court also found that the state’s argument — that references to discretion and term of confinement meant courts could determine when offenders became eligible — was reasonable as well.

Looking to legislative history, the court concluded the state’s argument was the better, finding intent to give greater discretion to judges imposing bifurcated sentences, and that that intention that was better advanced by the state’s broad interpretation of the CIP statute.

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Returning to the case at bar, the court concluded that Lehman is binding precedent for the nearly identical ERP statute, reasoning, "To the extent that the CIP and ERP provisions are linked by nearly identical language, similar subject matter and parallel function in the Truth-in-Sentencing scheme, they are related statutes whose meaning must be harmonized. Lehman’s interpretation of the CIP provision and the overall purpose of the statute thus govern our construction of the ERP statute."

White also argued that Lehman was wrongly decided and that the case should be certified to the Supreme Court to rectify that error. The court declined to do so, however, sta
ting, "We recognize that reasonable minds might disagree over whether the contested language in Wis. Stat. sec. 973.01(3m) and 3(g) is ambiguous, but this court has already spoken on the issue. If White wishes to challenge that determination, he must address his argument to the only court with the power to modify or overrule Lehman, the Supreme Court."

Accordingly, the court affirmed

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David Ziemer can be reached by email.