State ex rel. Singh v. Kemper

• Citation: 883 N.W.2d 86,371 Wis.2d 127
• Decision Date: 13 July 2016
• Docket Number: No. 2013AP–1724.,2013AP–1724.
• Parties: STATE of Wisconsin ex rel. Aman SINGH, Petitioner–Appellant–Petitioner, v. Paul KEMPER, Warden, Racine Correctional Institution, Respondent–Respondent–Cross Petitioner.
• Court: United States State Supreme Court of Wisconsin

371 Wis.2d 127

883 N.W.2d 86

STATE of Wisconsin ex rel. Aman SINGH, Petitioner–Appellant–Petitioner,

v.Paul KEMPER, Warden, Racine Correctional Institution, Respondent–Respondent–Cross Petitioner.

No. 2013AP–1724.

Supreme Court of Wisconsin.

Argued March 14, 2016.

Decided July 13, 2016.

For the petitioner-appellant-petitioner, there were briefs by Thomas L. Shriner, Jr., Brett H. Ludwig, Philip C. Babler, and Foley & Lardner LLP, Milwaukee and oral argument by Philip C. Babler.

For the respondent-respondent-cross-petitioner, the cause was argued by Sara Lynn Shaeffer, assistant district attorney with whom on the briefs was Brad D. Schimel, attorney general.

ANN WALSH BRADLEY

, J.

¶ 1 We are presented with both a petition and a cross-petition for review involving the constitutionality of legislation that repealed and modified a law, 2009 Wis. Act 28, that allowed inmates the opportunity to earn “positive adjustment time,” by which inmates could obtain early release from prison.¹

¶ 2 The constitutionality of two provisions of 2011 Wis. Act 38 relating to 2009 Wis. Act 28, which adopted positive adjustment time, are at issue in this case: (1) the retroactive repeal of positive adjustment time, and (2) the preservation of positive adjustment time earned while 2009 Wis. Act 28 was in effect and alterations to the process for obtaining early release based on positive adjustment time, which we refer to as Wis. Stat. § 973.198

.

¶ 3 The petitioner, Aman Singh, seeks review of a published court of appeals decision that reversed in part and affirmed in part the circuit court's order dismissing his petition for writ of habeas corpus.² Singh contends that Wis. Stat. § 973.198

delays inmates' release from prison by up to 90 days, thereby violating the ex post facto clauses of the Wisconsin and United States Constitutions.³

¶ 4 He argues that under Wis. Stat. § 973.198

, inmates who are eligible for positive adjustment time are released up to 90 days later than under 2009 Wis. Act 28. Asserting that this change results in a longer period of incarceration, Singh claims that § 973.198

violates the ex post facto clauses. We agree with Singh that Wis. Stat. § 973.198 violates the constitutional prohibition against ex post facto laws because it results in a longer period of incarceration, thus making the punishment for an offense more burdensome after it was committed.⁴

¶ 5 Cross-petitioner, Paul Kemper, in his capacity as warden of the Racine Correctional Institute, seeks review of that part of the court of appeals' decision that reversed the circuit court's order dismissing Singh's petition for writ of habeas corpus. He asserts that because Singh committed one of his crimes before the enactment of positive adjustment time in 2009 Wis. Act 28, the court of appeals erroneously concluded that the retroactive application of 2011 Wis. Act 38, which eliminated the opportunity for inmates to continue earning positive adjustment time, was an ex post facto violation of the Wisconsin and United States Constitutions.

¶ 6 This case presents the unusual circumstance of a defendant who was convicted and sentenced under 2009 Wis. Act 28, which made positive adjustment time available when it was not originally available at the time of the offense. Kemper argues that the court of appeals erred because it focused on changes in the law when the defendant was convicted and sentenced, rather than changes in the law at the time the defendant committed the offenses.

¶ 7 We disagree with Kemper because in this case, due to the retroactive application of positive adjustment time, Singh was convicted and sentenced while 2009 Wis. Act 28 was in effect. Both Wisconsin and United States Supreme Court precedent supports assessing the ex post facto effect of a law in reference to the time the defendant committed the offense, was convicted, or was sentenced.

¶ 8 Like the court of appeals, we conclude that because the early release provisions of 2009 Wis. Act 28 were retroactively in effect when Singh was convicted and sentenced for the first offense, as well as at the time he committed the second offense, that the retroactive repeal of positive adjustment time in 2011 Wis. Act 38 violates the ex post facto clauses of the Wisconsin and United States Constitutions. However, unlike the court of appeals, we conclude that Wis. Stat. § 973.198

also violates the constitutional prohibition against ex post facto laws because it makes the punishment for an offense more burdensome after it was committed.

¶ 9 Accordingly, we affirm the court of appeals' determination that the retroactive repeal of positive adjustment time is an ex post facto violation, but reverse its determination that Wis. Stat. § 973.198

does not violate the constitutional prohibition against ex post facto laws. Additionally, I would remand the cause to the circuit court for a determination of whether under the current circumstances it is now appropriate to grant the writ and what additional relief, if any, is warranted.

I

¶ 10 The relevant facts of this case as presented by the parties are not in dispute. They involve two legislative changes made by 2011 Wis. Act 38. One retroactively repealed positive adjustment time. The other created Wis. Stat. § 973.198

, a new statute that preserved the opportunity of early release for certain individuals and altered the procedure obtaining early release based on positive adjustment time.

¶ 11 During the time period when Singh was first charged in 2008 until he began serving his prison sentence in early 2012, the Legislature enacted and then repealed 2009 Wis. Act 28, which provided inmates with the opportunity to earn early release from prison.

¶ 12 Enacted in 2009, Wis. Stat. § 302.113(2)(b)

(2009–10), provided inmates convicted of Class F to I felonies the opportunity to earn one day of positive adjustment time for every two days of confinement.⁵ Positive adjustment time was earned for every two days that the inmate did not violate any regulation of the prison or refuse or neglect to perform required or assigned duties.

¶ 13 Wisconsin Stat. § 302.113(2)(b)

(2009–10) provided in relevant part:

An inmate sentenced under s. 973.01 for a misdemeanor or for a Class F to Class I felony that is not a violent offense, as defined in s. 301.048(2)(bm)1., may earn one day of positive adjustment time for every 2 days served that he or she does not violate any regulation of the prison or does not refuse or neglect to perform required or assigned duties.

¶ 14 In 2011 the Legislature passed 2011 Wis. Act 38 as part of a budget bill, which repealed the early release provisions in 2009 Wis. Act 28. Consequently, after August 3, 2011, prisoners were generally precluded from earning positive adjustment time.

¶ 15 The 2011 Act also created Wis. Stat. § 973.198

, which preserved the opportunity for certain individuals to earn early release based on positive adjustment time earned between October 1, 2009 and August 3, 2011, but altered the procedures for procuring early release. Section 973.198 provides in relevant part:

(1) When an inmate who is serving a sentence imposed under s. 973.01 and who has earned positive adjustment time under s. 302.113, 2009 stats

., or under s. 304.06, 2009 stats., has served the confinement portion of his or her sentence less positive adjustment time earned between October 1, 2009, and August 3, 2011, he or she may petition the sentencing court to adjust the sentence under this section, based on the number of days of positive adjustment time the inmate claims that he or she has earned.

(3) Within 60 days of receipt of a petition filed under sub. (1), the sentencing court shall either deny the petition or hold a hearing and issue an order relating to the inmate's sentence adjustment and release to extended supervision.

(5) If the court determines that the inmate has earned positive adjustment time, the court may reduce the term of confinement in prison by the amount of time remaining in the term of confinement in prison portion of the sentence, less up to 30 days, and shall lengthen the term of extended supervision so that the total length of the bifurcated sentence originally imposed does not change.

¶ 16 Under the Wis. Stat. § 973.198

, inmates are not permitted to file a petition requesting early release until the day that they are actually eligible for release. Filing a petition under § 973.198 starts a process for early release that can take up to 90 days, even though the inmate is eligible for release on the day he files the petition.

¶ 17 In contrast, under the repealed 2009 Act, 90 days before an inmate was eligible for release the DOC was required to notify the sentencing court that it intended to modify the inmate's sentence and release the inmate to extended supervision. Wisconsin Stat. § 302.113(2)(c)1.

(2009–10) provided:

When an inmate is within 90 days of release to extended supervision under par. (b), the department shall notify the sentencing court that it intends to modify the inmate's sentence and release the inmate to extended supervision under par. (b), and the court may hold a review hearing. If the court does not schedule a review hearing within 30 days after notification under this subsection, the department may proceed under par. (b).

¶ 18 Under the 2009 Wis. Act 28, the sentencing court had the discretion to hold a hearing within 30 days after it received notice from the DOC. Wis. Stat. § 302.113(2)(c)1.

If the sentencing court opted to conduct a review, it was required to hold the hearing and issue an order relating to the inmate's early release within 60 days of receiving the DOC's notice. Section 302.113(2)(c) 2.a. In contrast to the current law, an inmate could then be released on the first day he was eligible.

¶ 19 Singh's case arose in the midst of rapid legislative changes to the laws governing inmates' ability to earn early release from prison based on positive adjustment time. In 2008, Singh was charged with obtaining a controlled...