State v. Anderson

2015 WI App 92, 873 N.W.2d 82, 366 Wis. 2d 147, 2015 Wisc. App. LEXIS 791
CourtCourt of Appeals of Wisconsin
DecidedNovember 5, 2015
DocketNo. 2014AP982-CR
StatusPublished

This text of 2015 WI App 92 (State v. Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Anderson, 2015 WI App 92, 873 N.W.2d 82, 366 Wis. 2d 147, 2015 Wisc. App. LEXIS 791 (Wis. Ct. App. 2015).

Opinion

LUNDSTEN, J.

¶ 1. The question here is whether sentence adjustment under Wis. Stat. § 973.195 is available to reduce confinement time for persons serving an enhanced misdemeanor prison term. As we explain further in the discussion section below, an enhanced misdemeanor prison term is imposed when (1) a defendant is convicted of a misdemeanor and is subject to penalty enhancement, such that a bifurcated sentence under Wis. Stat. § 973.01(1) is a possibility and (2) the court actually chooses to impose prison time. We conclude that persons serving an enhanced misdemeanor prison term are eligible for sentence adjustment under § 973.195. Accordingly, we reverse the circuit court.1

Background

¶ 2. Anderson was charged with four misdemeanors, each as a repeater. Under a plea agreement, Anderson entered no contest pleas to two counts of misdemeanor battery, each as a repeater. The imprisonment maximum for each unenhanced misdemeanor count was nine months. See Wis. Stat. § 939.51(3)(a). Under the repeater statute, Wis. Stat. § 939.62(l)(a), the total maximum sentence for each count was increased to two years and, under [150]*150Wis. Stat. § 973.01(2)(b)10., the confinement portion of Anderson's sentence was limited to 75% of his total sentence, that is, eighteen months.

¶ 3. Pursuant to a joint recommendation, the circuit court specified that Anderson would serve his imprisonment in the Wisconsin prison system. The court imposed one year of initial confinement and one year of extended supervision on each count, and ordered the sentences to run concurrently.

¶ 4. After serving 75% of the confinement portion of each concurrent sentence, Anderson submitted two petitions for sentence adjustment, one for each count. The circuit court denied the petitions in a form order with a short explanation attached. The court wrote that Anderson was not eligible for sentence adjustment under Wis. Stat. § 973.195 because relief under that statute is available only to defendants convicted of felonies.

Discussion

A. Preliminary Issues And Observations

¶ 5. Anderson argues that the circuit court wrongly concluded that enhanced misdemeanants, like him, who are serving confinement time in prison are not eligible for sentence adjustment under Wis. Stat. § 973.195. Before we address that question, we address some threshold issues and provide some cautionary observations.

¶ 6. Forfeiture. So far as we can tell, we could reject Anderson's arguments as forfeited because they are presented for the first time on appeal. Before the circuit court, with his sentence adjustment petitions, [151]*151Anderson submitted a short letter with one sentence merely asserting statutory eligibility. The remainder of Anderson's letter contained arguments as to why he deserved sentence adjustment. The State, however, does not argue forfeiture. To the contrary, the State asks us to address Anderson's new arguments on their merits because of the need for a published opinion on the topic. We agree there is a need and, therefore, choose to ignore forfeiture. See Townsend v. Massey, 2011 WI App 160, ¶ 23, 338 Wis. 2d 114, 808 N.W.2d 155 ("[T]he forfeiture rule is one of judicial administration, and appellate courts have the authority to ignore forfeiture when a case presents an important recurring issue.").

¶ 7. At the same time we note, in fairness to the circuit court, that our decision to address the merits of Anderson's new arguments means we are "blindsiding" that court with reversal based on arguments not presented to it, something we normally avoid. See State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995) (stating the general rule that we "will not. . . blindside trial courts with reversals based on theories which did not originate in their forum").

¶ 8. Mootness. The parties agree that the issue presented is moot as to Anderson, but that we should address it nevertheless. As the State aptly explains:

Although Anderson has now been released from confinement and would not benefit from a decision in his favor, this case presents an issue of significant public importance to misdemeanants, prosecutors, corrections officials, and the courts. And, given the timing of misdemeanants' petitions in relation to the termination of their confinement (usually within a few months of release, based on DOC's use of the 75% standard), [152]*152this situation will almost certainly continue to evade judicial review before any individual misdemeanant is released. Accordingly, under the rationale set forth in Anderson's brief. .., and the established exceptions to the mootness doctrine, see, e.g., In re Commitment of Schulpius, 2006 WI 1, ¶ 15, 287 Wis. 2d 44, 707 N.W.2d 495, the State agrees that this case is as appropriate a vehicle as any to review the question presented.

We agree that it is appropriate to decide the question presented, even though it is moot as to Anderson.

¶ 9. Enhanced misdemeanor prison term. It may not be readily apparent that our decision does not apply to all persons convicted of enhanced misdemeanors. Rather, it applies to persons convicted of enhanced misdemeanors who actually receive an enhanced misdemeanor prison term. We flag this because we have used language in the past suggesting that all enhanced misdemeanor sentences must be bifurcated sentences that include prison time. For example, in State v. Lasanske, 2014 WI App 26, 353 Wis. 2d 280, 844 N.W.2d 417, review denied, 2014 WI 122, 358 Wis. 2d 603, 855 N.W.2d 694, an enhanced misdemeanor case, we wrote: "Lasanske was eligible for up to two years of imprisonment on each count to which he pled. His sentence had to be bifurcated, with no more than 75% of the total length of the bifurcated sentence as confinement and no less than 25% of the length of the term of confinement as extended supervision." Id., ¶ 12 (emphasis added).

¶ 10. However, courts are not required to impose a bifurcated sentence, which would necessarily include prison time, on persons convicted of enhanced misdemeanors. For example, so far as we can tell, under Wis. Stat. § 973.02 the circuit court here could have chosen [153]*153to order Anderson to serve one year in jail with no extended supervision. Or, for that matter, the court could have imposed no confinement or less than one year of confinement on each count, which then would have required Anderson to serve any confinement time in jail, not in prison. See § 973.02.

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Related

State v. Schulpius
2006 WI 1 (Wisconsin Supreme Court, 2006)
Seider v. O'CONNELL
2000 WI 76 (Wisconsin Supreme Court, 2000)
Storm Ex Rel. Smoler v. Legion Insurance
2003 WI 120 (Wisconsin Supreme Court, 2003)
State v. Tucker
2005 WI 46 (Wisconsin Supreme Court, 2005)
State v. Stenklyft
2005 WI 71 (Wisconsin Supreme Court, 2005)
State v. Rogers
539 N.W.2d 897 (Court of Appeals of Wisconsin, 1995)
State v. Harris
2011 WI App 130 (Court of Appeals of Wisconsin, 2011)
Townsend v. Massey
2011 WI App 160 (Court of Appeals of Wisconsin, 2011)
State v. Lasanske
2014 WI App 26 (Court of Appeals of Wisconsin, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
2015 WI App 92, 873 N.W.2d 82, 366 Wis. 2d 147, 2015 Wisc. App. LEXIS 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-anderson-wisctapp-2015.