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Old, new sentences continuous

By: dmc-admin//May 28, 2007//

Old, new sentences continuous

By: dmc-admin//May 28, 2007//

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What the court held

Case: State of Wisconsin ex rel. Thomas v. Schwarz, No. 2005AP1487.

Issue: Are consecutive indeterminate and determinate sentences to be treated as continuous?

Holding: Yes. The legislative history does not indicate intent to change the treatment of consecutive sentences.

Attorneys: For Appellant: Michael D. Kaiser, Hartland; For Respondent: David H. Schwarz, Madison; Margaret E. Tarrant, Milwaukee; Christopher G. Wren, Madison

Seven years after Truth In Sentencing (TIS) replaced indeterminate sentencing and parole, we finally have a definitive answer how to calculate reconfinement time when a defendant violates his conditions of release and is subject to consecutive sentences — one under the old law, and one under the new.

The Wisconsin Supreme Court held that consecutive indeterminate and determinate sentences should be treated as one continuous sentence, with the confinement periods served first, followed by continuous nonconfinement periods of both parole and extended supervision.

In 1999 (old law), Kevin Thomas was sentenced to consecutive, indeterminate sentences of two years of imprisonment on two counts of forgery, but the sentence was stayed, and Thomas was placed on probation for five years. In 2000 (new law), he was convicted of burglary.

As a result, his probation was revoked, and he began serving his forgery convictions. For the burglary, he was sentenced to a determinate, consecutive eight-year sentence, consisting of three years of initial confinement and five years of extended supervision.

Thomas completed the Challenge Incarceration Program while serving his sentence and, consequently, the circuit court amended the burglary sentence to eight years, consisting of zero years of confinement and eight years of extended supervision.

On Aug, 27, 2001, the DOC released Thomas to parole and, it asserted, extended supervision. On Feb. 2, 2004, he was taken into custody for allegedly violating the conditions of his parole and extended supervision.

The DOC sought revocation of both parole and extended supervision simultaneously. Thomas moved to dismiss the proceedings for revocation of extended supervision, arguing that: parole and extended supervision are two separate sentences, not one continuous period of supervision; he had not yet begun serving the extended supervision in the burglary case; and therefore, it could not be revoked.

The ALJ denied the motion, although she did not order any reincarceration time for the parole revocation in the forgery case, but recommended that the circuit court impose two years and 15 days of reconfinement in the burglary case.

Both the DOC and the circuit court affirmed, concluding that sec. 302.113(4) plainly indicates the Legislature’s intent to continue the long-standing practice of treating consecutive sentences as one single, continuous sentence for TIS cases.

The Partial Veto

The following is Section 973.15(2m)(c) and (d), as drafted by the Legislature. The underlined portions were vetoed by the governor, leading the court to conclude that all consecutive sentences should be treated as continuous, whether imposed under TIS or the old law:
(c) Determinate sentences imposed to run concurrent with or consecutive to indeterminate sentences.

2. If a court provides that a determinate sentence is to run consecutive to an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence consecutive to the period of confinement in prison under the indeterminate sentence and the parole portion of the indeterminate sentence consecutive to the term of extended supervision under the determinate sentence.
(d) Indeterminate sentences imposed to run concurrent with or consecutive to determinate sentences.

2. If a court provides that an indeterminate sentence is to run consecutive to a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence consecutive to the period of confinement in prison under the determinate sentence and the parole portion of the indeterminate sentence consecutive to the term of extended supervision under the determinate sentence.

The court of appeals reversed, noting that, when TIS was enacted, subsec. (3) was amended to provide: “All consecutive sentences imposed for crimes committed before December 31, 1999, shall be computed as one continuous sentence,” and subsec. (4) was created to provide, “All consecutive sentences imposed for crimes committed on or after December 31, 1999, shall be computed as one continuous sentence. The person shall serve any term of extended supervision after serving all terms of confinement in prison.”

The court of appeals concluded that the scheme indicates that all indeterminate sentences shall be treated as one continuous sentence, and all determinate sentences shall be treated as another continuous sentence, but not multiple sentences under both schemes.

The Supreme Court accepted review, and reversed the court of appeals, in a decision by Justice N. Patrick Crooks. Justice Ann Walsh Bradley dissented, in an opinion joined by Chief Justice Abrahamson, agreeing with the court of appeals.

The majority found that the statutes do not directly answer the question, and looked to legislative history for guidance.

The court looked to a partial veto of then-Governor McCallum, in which he stated, “I am partially vetoing these provisions because they needlessly complicate existing pr
ocedures…”

The relevant provision at issue is sec. 973.15(2m)(c)2, which, as drafted by the legislature, originally provided, “If a court provides that a determinate sentence is to run consecutive to an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence consecutive to the period of confinement in prison under the indeterminate sentence and the parole portion of the indeterminate sentence consecutive to the term of extended supervision under the determinate sentence.”

The partial veto excised the final language, “and the parole portion of the indeterminate sentence consecutive to the term of extended supervision under the determinate sentence.”

The court concluded, “The veto message reflects an intention not to change the practice of how consecutive sentences were then being handled.”

The court added that, if parole and extended supervision were treated as discrete units, a revocation of only one unit could be disproportionately small in comparison to the seriousness of the violation.

Accordingly, the court reversed.

The dissenters disagreed, classifying consecutive determinate and indeterminate sentences as a “gap” in the sentencing scheme that can’t be “fill[ed] in” by treating them as continuous.

The dissent concluded that the partial veto only indicates that consecutive sentences should be served, “one after the other, in the order that they are handed down.”

David Ziemer can be reached by email.

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