TIS Case Analysis

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In State v. Cole, 2003 WI 59, 262 Wis.2d 167, 663 N.W.2d 700, the Wisconsin Supreme Court wrote, when faced with similar mathematical difficulties presented by TIS-I: "both sides present reasonable arguments in support of their respective interpretations. On the other hand, however, neither party’s interpretations and arguments are without flaws. Each party’s position is vulnerable to criticism and might create unwelcome anomalies. The truth of the matter is that TIS-I applies awkwardly to presumptive minimum sentences in unclassified felony statutes and it is impossible to cleanly and neatly and reconcile the two statutes at issue in this case."

The case at bar demonstrates that the exact same thing can be said of applying TIS-I to sentences involving enhancements, and attempts rather than completed offenses. The court of appeals had a host of interpretations to adopt, and all appear at least as reasonable as the ones declined.

Nevertheless, there appears to be one aspect of the decision that cannot be reconciled with existing precedent.

In a lengthy footnote, the court wrote:

"Recall, the maximum term of imprisonment for Kleven’s base offense is five years, and the maximum confinement that can be ordered for the base offense is two and one-half years. Thus, because all two and one-half years of the confinement available for the base offense must be deemed to have been imposed in order for the enhanced term of confinement to apply, the maximum available extended supervision that may be ordered under this interpretation is two and one-half years…

"We also note that, under the rationale [in State v. Harris, 119 Wis.2d 612, 350 N.W.2d 633 (1984)], one could argue that, if an enhanced sentence is imposed (i.e., one that orders more than 2.5 years’ confinement), the court must order the full 2.5 years of extended supervision available for the base offense. We reject this analysis and result. In order to avoid the error identified in Harris, it is only necessary that the sentence imposed exceed the maximum term of imprisonment for the base offense, and this may be accomplished with any combination of enhanced confinement exceeding 2.5 years, which, together with extended supervision equaling at least 25% of the confinement ordered, achieves a total sentence of more than five years’ imprisonment. For example, if the court were to sentence Kleven to six-years’ confinement and 1.5 years’ extended supervision, it will have imposed a term of imprisonment (7.5 years) that exceeds the maximum for the base offense (5 years), while meeting the applicable constraints on extended supervision (at least 25% of confinement, but not to exceed 2.5 years)."

The above discussion, however, relegates extended supervision to second-class status, when extended supervision is considered an integral part, not just of the sentence for the underlying crime, but the imprisonment. Under TIS, imprisonment includes confinement and extended supervision; treating only the confinement portion as being a "real" part of the sentence is contrary to the legislative will.

In Cole, the Supreme Court ex-plained, "TIS-I … created and established a unique definition of the word ‘imprisonment’ in Wisconsin’s sentencing statutes. Section 973.01 used the word ‘imprisonment’ to refer to a ‘bifurcated sentence’ consisting of ‘a term of confinement in prison followed by a term of extended supervision.’ (footnotes omitted)." Cole, 663 N.W.2d at 704.

After noting that, prior to TIS-I, "imprisoned" had the "common-sense" meaning of "confined in a jail or prison," the court added, "when the legislature enacted TIS-I it gave a unique statutory explanation of the word ‘imprisonment.’ … a term of confinement and a term of extended supervision." Id., at 706.

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Using this "unique definition" of "imprisonment," the extended supervision cannot be ignored. The "maximum term of imprisonment" for the underlying offense must include two years and six months of extended supervision in addition to the two and a half years of confinement, for it to be properly said that the defendant received the maximum term of imprisonment.

The court’s statement in footnote 6 that, "it is only necessary that the sentence imposed exceed the maximum term of imprisonment for the base offense," impermissibly ignores the status that the legislature has accorded extended supervision, and the unique definition of "imprisonment" the legislature has adopted.

It also runs contrary to its own statements in State v. Volk, 2002 WI App 274, par. 48, 258 Wis.2d 584, 654 N.W.2d 24, and iterated in the court’s conclusion: "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."

Contrary to the court’s instructions on remand, to truly comply with all the various statutes at play, and the case law which defines imprisonment to include both confinement and extended supervision, the length of extended supervision imposed in this case on remand must be exactly two years and six months.

– David Ziemer

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David Ziemer can be reached by email.