State v. Cole

• Decision Date: 19 June 2003
• Docket Number: No. 02-0681-CR.,02-0681-CR.
• Citation: 262 Wis.2d 167,663 N.W.2d 700,2003 WI 59
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Tommie L. COLE, Defendant-Appellant.
• Court: Wisconsin Supreme Court

262 Wis.2d 167

2003 WI 59

663 N.W.2d 700

STATE of Wisconsin, Plaintiff-Respondent, v. Tommie L. COLE, Defendant-Appellant.

No. 02-0681-CR.

Supreme Court of Wisconsin.

Oral argument April 30, 2003.

Decided June 19, 2003.

For the defendant-appellant there were briefs and oral argument by Suzanne L. Hagopian, assistant state public defender.

For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is an appeal from an order of the circuit court for Milwaukee County, Richard J. Sankovitz, Judge, denying Tommie L. Cole's postconviction motion for resentencing or sentence modification. The case comes before this court on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (1999-2000).¹

¶ 2. On May 2, 2001, Cole, the defendant, pled guilty to being a party to the crime of delivering more than 15 grams but not more than 40 grams of cocaine.² The offense occurred on January 5, 2001.

¶ 3. Delivering more than 15 grams but not more than 40 grams of cocaine was an unclassified felony at the time the defendant committed the crime, and Wis. Stat. § 961.41(1)(cm)3. provided that a person convicted "shall be fined not more than $500,000 and shall be imprisoned for not less than 3 years nor more than 30 years."³ Furthermore, when the defendant committed the crime his sentence was subject to the provisions in the first phase of Wisconsin's Truth in Sentencing legislation (TIS-I). Specifically, the defendant's sentence was subject to Wis. Stat. § 973.01, a statute enacted through TIS-I, requiring that the sentence be bifurcated such that a portion of the sentence include a term of confinement and a portion of the sentence include a term of extended supervision.⁴

¶ 4. Wisconsin adopted Truth-in-Sentencing legislation in two phases. The first phase, TIS-I, was enacted in June 1998.⁵ The second phase, TIS-II, was enacted in July 2002.⁶ TIS-I applied to offenses committed on or after December 31, 1999. TIS-II became effective February 1, 2003. TIS-I thus lasted for just over three years and has now been modified by TIS-II.⁷

¶ 5. Both parties agree, and so do we, that the circuit court intended to sentence the defendant in the present case to the presumptive minimum sentence under Wis. Stat. § 961.41(1)(cm)3., expressed in the statutory language "shall be imprisoned for not less than 3 years." At sentencing, the circuit court stated:

I do believe that it's appropriate to follow the presumptive minimum the Legislature has told us, and that is the law that the community has adopted that for somebody who is a drug dealer in this weight range, three years in prison is appropriate unless we believe that the public would be served or at least not harmed by departing from that minimum.⁸

¶ 6. The circuit court concluded that under Wis. Stat. §§ 961.41(1)(cm)3. and 973.01, the confinement portion of the three-year presumptive minimum sentence must be "no less than the presumptive minimum for the offense, which in [this case] is three (3) years."⁹ The circuit court thus sentenced the defendant to a bifurcated sentence including a term of confinement of three years followed by a three-year period of extended supervision, and fined him $1,000.

¶ 7. The defendant concedes that the sentence imposed by the circuit court is valid under Wis. Stat. §§ 961.41(1)(cm)3. and 973.01 (TIS-I). The dispute in this case arises only because the circuit court announced its intention to sentence the defendant to the presumptive minimum sentence prescribed by the statute. The defendant rejects the circuit court's conclusion that the six-year bifurcated sentence is the presumptive minimum sentence.

¶ 8. The defendant asserts that the presumptive minimum sentence of three years in Wis. Stat. § 961.41(1)(cm)3. means, under § 973.01, that confinement in prison plus extended supervision cannot total more than three years. Thus the defendant seeks resentencing on the ground that the circuit court erroneously believed that the presumptive minimum term of confinement for the crime was three years.

¶ 9. The court of appeals asks that we determine what combination of confinement in prison and extended supervision constitutes the presumptive minimum sentence when a statute provides that an offender "shall be imprisoned for not less than 3 years."¹⁰ In other words, the sole issue presented to this court is whether the presumptive minimum sentence under Wis. Stat. §§ 961.41(1)(cm)3. and 973.01 is a term of three years of confinement plus an additional term of extended supervision or a term of confinement plus extended supervision totaling three years.

¶ 10. We hold that the circuit court erred when it construed the presumptive minimum sentence under Wis. Stat. §§ 961.41(1)(cm)3. and 973.01 (TIS-I) to be three years of confinement in prison.¹¹ We conclude that the three-year presumptive minimum sentence under §§ 961.41(1)(cm)3. and 973.01 is a total sentence of three years, consisting of a term of 27 months of confinement and nine months of extended supervision. We therefore reverse the order of the circuit court denying the defendant's postconviction motion and remand the case for resentencing consistent with this opinion.

I

¶ 11. In order to determine the presumptive minimum sentence in the present case we must interpret two statutes:

(1) Wis. Stat. § 961.41(1)(cm)3.: prescribing a sentence of "imprisoned for not less than 3 years," the presumptive minimum sentence for the crime in issue; and

(2) Wis. Stat. § 973.01 (TIS-I): establishing bifurcated felony sentences of imprisonment.

[1]

¶ 12. The interpretation of a statute is a question of law that this court determines independently, but benefiting from the analysis of the circuit court.

[2-5]

¶ 13. The principle objective of statutory interpretation is to ascertain and give effect to the intent of the legislature.¹² The court must ascertain the legislature's intent from the language of the statute in relation to its context, scope, history, and the objective intended to be accomplished.¹³ Statutes relating to the same subject matter should be read together and harmonized when possible.¹⁴ Furthermore, when there is doubt as to the meaning of a criminal statute, a court should apply the rule of lenity and interpret the statute in favor of the accused.¹⁵

¶ 14. When the defendant committed the crime, Wis. Stat. § 961.41(1)(cm)3. provided that a person who manufactures, distributes, or delivers more than 15 grams but not more than 40 grams of cocaine or cocaine base "shall be imprisoned for not less than 3 years nor more than 30 years."¹⁶ Section 961.41 read in relevant part: 961.41. Prohibited acts A—penalties. (1) Manufacture, distribution or delivery. Except as authorized by this chapter, it is unlawful for any person to manufacture, distribute or deliver a controlled substance or controlled substance analog. Any person who violates this subsection with respect to:

. . . .

(cm) Cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, is subject to the following penalties if the amount manufactured, distributed, or delivered is:

. . . .

3. More than 15 grams but not more than 40 grams, the person shall be fined not more than $500,000 and shall be imprisoned for not less than 3 years nor more than 30 years.¹⁷

¶ 15. The phrase "imprisoned for not less than 3 years" established a three-year minimum sentence known as a "presumptive minimum" sentence. A sentencing court could impose a sentence of less than three years only if it found that the best interests of the community would be served and that the public would not be harmed by a lesser sentence and if the sentencing court placed its reasons on the record.¹⁸ Furthermore, the sentence provision in Wis. Stat. § 961.41(1)(cm)3. made the offense of manufacturing, delivering, or distributing this amount of cocaine an "unclassified felony." Unlike other felony offenses, which were classified as Class A, B, BC, D, or E felonies, with the maximum penalty for each class set forth in Wis. Stat. §§ 973.01¹⁹ and 961.41(1)(cm)3. established its own sentencing range independent of the felony classification system.

¶ 16. Wisconsin Stat. § 973.01(1), TIS-I, adopted in 1998 and in effect when the defendant committed the crime, created and established a unique definition of the word "imprisonment" in Wisconsin's sentencing statutes.²⁰ Section 973.01 used the word "imprisonment" to refer to a "bifurcated sentence" consisting of "a term of confinement in prison followed by a term of extended supervision."²¹ Under § 973.01(1) a circuit court was required to impose a bifurcated sentence consisting of a term of confinement in prison followed by a term of extended supervision whenever it sentences a person to "imprisonment in the Wisconsin state prisons."²²

¶ 17. Section 973.01(1) read as follows:

(1) Bifurcated sentence required. Except as provided in sub. (3), whenever a court sentences a person to imprisonment in the Wisconsin state prisons for a felony committed on or after December 31, 1999, the court shall impose a bifurcated sentence that consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113.²³

¶ 18. Subsection (2) of Wis. Stat. § 973.01 established the term of confinement and period of extended supervision for each bifurcated sentence. Paragraph (2)(a) of Wis. Stat. § 973.01 provided that "the total length of the bifurcated sentence may not exceed the maximum period of imprisonment for the felony."²⁴ Paragraph (2)(b) established that the term of confinement in prison in a bifurcated sentence could "not be less than one year, subject to any minimum sentence prescribed for the felony."²⁵ Moreover, for an unclassified felony such as the one at issue in this case, the term of confinement may not exceed ...