Old,
new sentences continuous
Multiple
sentences must be treated as one
By
David Ziemer
david.ziemer@wislawjournal.com
May
28, 2007
| 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a result, his probation was revoked, and he began serving his forgery convictions.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 procedures...”
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.
