Sentencing Guidelines – Enhancement

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James A. Culver

Case No.: 2018AP799-CR

Officials: Lundsten, P.J., Kloppenburg and Fitzpatrick, JJ.

Focus: Sentencing Guidelines – Enhancement

In 2016, James Culver was on extended supervision that had been imposed in 2008 when he was sentenced for OWI, as a fifth offense, and with minors in his vehicle, pursuant to WIS. STAT. § 346.65(2)(f). For reasons not specified in the record, in November 2016 Culver’s extended supervision was revoked and he was reconfined.

For purposes of calculating the maximum term of extended supervision, it matters whether OWI-with-a-minor-passenger, WIS. STAT. § 346.65(2)(f), is an unclassified crime, or a penalty enhancer layered on top of an underlying classified crime. Under WIS. STAT. § 973.01(2), maximum terms of extended supervision are determined differently for unclassified and classified felonies. Thus, this appeal hinges on whether the sentencing court was applying § 973.01(2) to a classified or an unclassified crime.

As we explain below, whether WIS. STAT. § 346.65(2)(f) is a penalty enhancer added to an underlying classified crime, or instead defines an unclassified crime, is not an open question. Our supreme court’s decision in State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 N.W.2d 872, tells us that § 346.65(2)(f) defines an unclassified crime. Accordingly, we affirm the circuit court’s decision to deny Culver’s motion.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.