State v. Setagord, 95-0207-CR
| Decision Date | 11 July 1996 |
| Docket Number | No. 95-0207-CR,95-0207-CR |
| Citation | 204 Wis.2d 275,554 N.W.2d 683 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. John C. SETAGORD, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before GARTZKE, P.J., DYKMAN and VERGERONT, JJ.
John Setagord appeals from a judgment of conviction for taking a hostage, party to a crime, in violation of §§ 940.305 and 939.05, STATS.; conspiracy to escape, as a repeater, in violation of §§ 946.42(3)(a), 939.62 and 939.31, STATS.; and battery to a police officer, party to a crime and as a repeater, in violation of §§ 940.20(2), 939.62 and 939.05, STATS. The crimes were committed when Setagord and two other inmates attempted to escape from the Dane County Jail. A person who takes a hostage contrary to § 940.305 is guilty of a Class A felony. The penalty for a Class A felony is life imprisonment. Section 939.50(3)(a), STATS. The trial court initially sentenced Setagord to life without parole on the hostage-taking charge, concurrent with the sentence he was already serving. The trial court imposed an eleven-year sentence on the battery to a police officer charge, consecutive to the sentence he was already serving, and an eleven-year sentence on the conspiracy to escape charge, consecutive to the battery sentence.
Setagord appealed the sentence on the hostage-taking charge only. In State v. Setagord, 187 Wis.2d 340, 523 N.W.2d 124 (Ct.App.1994), we reversed that sentence. We held that § 973.014(2), STATS., 1991-92, 1 does not authorize a court to impose the sentence of life imprisonment without parole, but instead requires the court to either set a parole eligibility date or allow parole eligibility to be determined by the Wisconsin Parole Commission. We reversed the judgment and remanded to the trial court for resentencing.
On remand, the trial court imposed a mandatory life sentence on the hostage-taking charge with a parole eligibility date of October 21, 2091, one hundred years from the date of the crimes Setagord committed. We hold: (1) § 973.014(1)(b), STATS., permits a trial court to set a parole eligibility date beyond a person's expected lifetime; and (2) the trial court did not erroneously exercise its discretion in setting Setagord's parole eligibility date. We therefore affirm.
We first decide whether § 973.014(1)(b), STATS., permits a trial court to set a parole eligibility date beyond a person's expected lifetime. We declined to address this issue in State v. Setagord, 187 Wis.2d 340, 523 N.W.2d 124 (Ct.App.1994), because the issue was not before us.
The interpretation of a statute presents a question of law, which we decide de novo. See State v. Eichman, 155 Wis.2d 552, 560, 456 N.W.2d 143, 146 (1990). Id. The purpose of statutory construction is to discern the intent of the legislature. In determining the legislature's intent, we first consider the language of the statute. Id. If the language of the statute is ambiguous, we examine the scope, history, context, subject matter and object of the statute in order to ascertain the intent of the legislature. Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 538, 345 N.W.2d 389, 394 (1984). A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. State v. Martin, 162 Wis.2d 883, 894, 470 N.W.2d 900, 904 (1991).
The State contends that the language of § 973.014(1)(b), STATS., is capable of only one reasonable interpretation. The State focuses on the word "any" in the phrase "any later date" and contends that this authorizes a court to indirectly deny the possibility of parole by setting the date so far in the future that it is certain the defendant will not be alive on that date. This is a reasonable interpretation, but we conclude it is not the only reasonable interpretation.
The State acknowledges that its interpretation is an indirect way of authorizing a court to deny the possibility of parole. In § 973.014(2), STATS., 1993-94, the legislature uses the direct language "the court shall provide that the sentence is without the possibility of parole" with reference to one group of persons sentenced to life imprisonment--those sentenced under § 939.62(2m), STATS. 2 The absence of this direct language in § 973.014(1)(b) and the use instead of the language that the court may choose the option that "[t]he person is eligible for parole on a date set by the court," leads us to conclude that "a date set by the court" under § 973.014(1)(b) may reasonably be interpreted as a date that allows for the possibility of parole.
Since the statute is ambiguous, we look to its legislative history to aid us in discerning legislative intent. Section 973.014, STATS., was originally enacted by 1987 Wis. Act 412, § 5. Prior to its enactment, all persons convicted of crimes, including those convicted of a crime punishable by life imprisonment, were eligible for parole on a date set by statute. Under §§ 53.11 and 57.06(1)(b), STATS., 1987-88, the minimum period of time that a person sentenced to life imprisonment could serve before becoming eligible for parole release was approximately thirteen years and four months. State v. Borrell, 167 Wis.2d 749, 765 n. 6, 482 N.W.2d 883, 889 (1992).
1987 Wis. Act 412 was originally introduced as 1987 A.B. 8. This bill provided that if a person is convicted of a crime that is punishable by life imprisonment, "the court shall sentence the person to life imprisonment without parole eligibility unless it finds that mitigating circumstances justify life imprisonment with parole eligibility," in which case the parole eligibility was determined by statute. 1987 A.B. 8, § 11. The Senate then adopted Senate Substitute Amendment 1, which provided that if a person commits first-degree murder while attempting to commit certain violent felonies, "the court may set a date of parole eligibility later than that provided in [s. 304.06(1) ]."
The measure moved back to the Assembly, which adopted the following amendment to Senate Substitute Amendment 1:
973.014 SENTENCE OF LIFE IMPRISONMENT; PAROLE ELIGIBILITY DETERMINATION. When a court sentences a person to life imprisonment for a crime committed on or after the effective date of this section .... [revisor inserts date], the court shall make a parole eligibility determination regarding the person and choose one of the following options:
(1) The person is not eligible for parole.
(2) The person is eligible for parole under s. 57.06(1).
(3) The person is eligible for parole on a date set by the court. The court may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 57.06(1).
Assembly Amendment 1 to Senate Substitute Amendment 1.
After a vote in which the Senate did not concur in the Assembly's amendment, a Committee of Conference (committee) on 1987 A.B. 8 was formed. The report of the committee agreed to Assembly Amendment 1 with these amendments: deletion of subsec. (1); renumbering of subsecs. (2) and (3) to subsecs. (1) and (2); and replacing the second sentence of renumbered subsec. (2) with "Under this subsection, the court may set any later date than that provided in s. 57.06(1), but may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 57.06(1)." Assembly Amendment 1 as amended by the committee report became § 973.014, STATS., 1987-88.
Were this the only legislative history available, Setagord would have a strong argument that the deletion of the option of "[t]he person is not eligible for parole" from Assembly Amendment 1 indicates a legislative intent not to authorize a court to deny the possibility of parole under § 973.014(1)(b), STATS. However, the Legislative Reference Bureau (LRB) file on 1987 Wis. Act 412 also contains a memo from Bruce Feustel, Legislative Attorney, 3 to "File" on the subject of "Differences between the Senate and Assembly positions on Assembly Bill 8 (Life sentence without parole)." The memo is dated May 23, 1988, four days after the Senate nonconcurred in Assembly Amendment 1 and the day before the committee issued its report. The memo contains the following comparison of the Senate and Assembly amendments:
SENATE
(as shown by Senate Substitute Amendment 1 to Assembly Bill 8)
1. Parole Eligibility restrictions; persons covered: Any person who commits first-degree murder while committing or attempting to commit a violent felony (kidnapping, abduction, taking hostages, robbery, arson, sabotage, mayhem, criminal damage to property of a witness or aggravated sexual assault).
2. Court's options regarding parole: Provide that the person:--is subject to ordinary parole eligibility--is subject to delayed parole eligibility on a date fixed by the court (no limit, could be a date 100 years in the future)
3. Miscellaneous: No additional items.
(as shown by Assembly Amendment 1 to Senate Substitute Amendment 1 to Assembly Bill 8)
1. Parole eligibility restrictions; persons covered: Any person who commits any crime punishable by life imprisonment (first-degree murder, treason, or, under certain circumstances, kidnapping, taking hostages or tampering with household products).
2. Court's options regarding parole: Provide that the person:--is subject to ordinary parole eligibility--is subject to delayed parole eligibility on a date fixed by the court (no limit, could be a date 100 years in the future)--is not eligible for parole
3. Miscellaneous: Sentencing commission is prohibited from issuing guidelines on court/parole eligibility determination and the current prohibition on probation for first-degree murder is extended to all crimes punishable by life imprisonment.
The State argues that from the memo's nature and date,...
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