Criminal Procedure — ex post facto clause

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — ex post facto clause

Retroactive application of sec. 304.06, eliminating early release violates the Ex Post Facto Clause.

“The statutory changes at issue in this case are markedly different from those in Morales. Application of several of the 2011 act provisions to Singh’s offenses has the effect of lengthening his time confined in prison beyond what he well may have experienced under the law as it stood when he committed or was convicted and sentenced on the offenses. The changes do not merely adjust the date at which Singh might first become eligible for early release, they altogether eliminate the early release opportunities the law previously afforded him. While the 2011 act preserves early release eligibility for prisoners who earned PAT between October 1, 2009, and August 3, 2011, the act prevents Singh from earning PAT after August 3, 2011, even though the law in effect when he committed or was convicted and sentenced on his crimes had no such limitation. With the enactment of the 2011 act, there simply is no opportunity for early release based upon WIS. STAT. §§ 302.113(9h) and 304.06(1)(bg)3. (2009-10), or to earn early release based upon PAT while in a prison after August 3, 2011, under §§ 302.113(2)(b) or 304.06(1)(bg)1. Further, as a Class H offender, Singh is in the second-lowest felony class, see WIS. STAT. § 939.50, and thus there is no reason here, as there was in Morales, to conclude Singh would not have been able to secure early release had the early release provisions not been eliminated by the 2011 act. In his petition, Singh asserts that he has ‘met the criteria for earning PAT.’ We can find nothing in the record or briefing where Kemper calls this into question, other than Kemper’s general assertion that Singh is not eligible for PAT due to enactment of 2011 Wis. Act 38.”

When Singh committed or was convicted and sentenced on his offenses, the 2009 act and its multiple early release opportunities were the law. Completely eliminating Singh’s eligibility for any of these opportunities ensured Singh would serve the full amount of confinement time to which he was sentenced, resulting in a significant risk that he would serve more time in prison than under 2009 Wis. Act 28. The ex post facto clauses prohibit this.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2013AP1724 State ex rel. Singh v. Kemper

Dist. II, Racine County, Ptacek, J., Gundrum, J.

Attorneys: For Appellant: Singh, Aman, pro se; For Respondent: Larson, Sara Lynn, Madison