State v. Tucker, 2003AP1276-CR.

• Decision Date: 21 April 2005
• Docket Number: No. 2003AP1276-CR.,2003AP1276-CR.
• Citation: 2005 WI 46,694 N.W.2d 926,279 Wis.2d 697
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James Hubert TUCKER, Jr., Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

279 Wis.2d 697

2005 WI 46

694 N.W.2d 926

STATE of Wisconsin, Plaintiff-Respondent, v. James Hubert TUCKER, Jr., Defendant-Appellant-Petitioner.

No. 2003AP1276-CR.

Supreme Court of Wisconsin.

Oral argument December 7, 2004.

Decided April 21, 2005.

For the defendant-appellant-petitioner there were briefs and oral argument by Donald T. Lang, 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.

An amicus curiae brief was filed by Walter Dickey, David E. Schultz, Michael E. Smith and Cecelia M. Klingele, University of Wisconsin Law School, Madison, on behalf of the University of Wisconsin Law School, and oral argument by Walter Dickey.

¶ 1. N. PATRICK CROOKS, J

James Hubert Tucker, Jr. (Tucker) seeks review of an order of the court of appeals, affirming the circuit court's denial of his motion for sentence modification under Wis. Stat. § 809.30(2)(h) (2001-02).¹ We review this case to determine whether the reductions in maximum penalties for the crimes of possession with intent to deliver cocaine and felony bail-jumping, set forth in the truth-in-sentencing provisions of 2001 Wis. Act 109 (TIS-II), constitute new factors in regard to a sentence modification motion, where the original sentences were imposed in accord with 1997 Wis. Act 283 (TIS-I). Additionally, we must determine whether a TIS-I offender can petition the circuit court for a sentence adjustment under Wis. Stat. § 973.195,² and whether a different approach is required for unclassified rather than classified felonies.

¶ 2. We conclude, based on our holding in State v. Trujillo, 2005 WI 45, 279 Wis. 2d 712, 694 N.W.2d 933, that the reduced maximum confinement penalties under TIS-II do not constitute new factors when a defendant such as Tucker moves for the modification of sentences imposed under TIS-I. Although Tucker's initial confinement time for his TIS-I felonies exceeded the TIS-II maximum for each sentence, the changes are not highly relevant to the imposition of his original TIS-I sentences. The legislature never mandated the retroactive application of the reduced penalties. We further conclude that Wis. Stat. § 973.195 applies to TIS-I offenders and that the legislature has provided an adequate remedy by enacting that statutory provision. Whether the court is dealing with a classified or unclassified felony, the same rationale concerning new factor jurisprudence and the applicability of § 973.195 controls.

I

¶ 3. On February 20, 2002, Tucker pled guilty to two crimes: possession with intent to deliver cocaine (five grams or less), an unclassified felony³ in violation of Wis. Stat. § 961.41(1m)(cm)1 (1999-2000), and felony bail jumping, a Class D felony in violation of Wis. Stat. § 946.49(1)(b) (1999-2000).

¶ 4. Based on his convictions under TIS-I, Tucker was subject to penalty maximums of 15 years for the unclassified possession charge and ten years for the bail-jumping charge. The Rock County Circuit Court, Judge Daniel T. Dillon presiding, sentenced him to consecutive sentences of ten years of initial confinement and five years of extended supervision for the unclassified possession conviction, and five years of initial confinement and five years extended supervision for the bail-jumping conviction.

¶ 5. The maximum penalties for the charges which Tucker was convicted were reduced under TIS-II. For the possession count, the maximum penalty was reduced from 15 years to 12 years and six months, with a maximum initial confinement time of seven years and six months. For the bail-jumping count, TIS-II reduced the maximum total sentence from ten years to six years, while the maximum initial confinement time was set at three years. As a result, under TIS-I, Tucker was sentenced to four years and six months more initial confinement than was possible for the same offenses under TIS-II.

¶ 6. On December 18, 2002, Tucker brought a postconviction motion for sentence modification. He argued that the reduction in the maximum penalties under TIS-II constituted new factors for the circuit court to consider during his sentence modification hearing. He did not bring a motion for sentence adjustment under Wis. Stat. § 973.195, since he believed that the provisions of the statute did not apply to individuals sentenced under TIS-I.

¶ 7. On May 1, 2003, the circuit court denied Tucker's motion. In an oral decision, the circuit court determined that State v. Hegwood, 113 Wis. 2d 544, 335 N.W.2d 399 (1983), did not allow the modification of a sentence based on the post-sentence reduction in penalty and, thus, did not constitute a new factor for the circuit court to consider.

¶ 8. On appeal, the court of appeals denied Tucker's sentence modification motion and found that the penalty reductions set forth in TIS-II were not highly relevant to the imposition of his sentences. The court of appeals based its decision on State v. Torres, 2003 WI App 199, 267 Wis. 2d 213, 670 N.W.2d 400, which stated that the disparity in sentences between TIS-I and TIS-II is not a new factor to be considered in deciding motions for sentence modification.

¶ 9. We accepted review of the court of appeals' order and now affirm.

II

¶ 10. In Trujillo, we held that whether a new factor exists is a question of law, which we review de novo. Trujillo, 279 Wis. 2d 712, ¶ 11; State v. Lechner, 217 Wis. 2d 392, 424, 576 N.W.2d 912 (1998). We also held that "[t]he existence of a new factor does not, however, automatically entitle the defendant to relief." Trujillo, 279 Wis. 2d 712 (quoting Hegwood, 113 Wis. 2d at 546). Ultimately, the decision of whether the sentence should be modified is left to the sound discretion of the circuit court. Hegwood, 113 Wis.2d at 546. We will not overrule a decision to modify a sentence unless the circuit court erroneously exercised its discretion. Trujillo, 279 Wis. 2d 712, ¶ 10; Lechner, 217 Wis. 2d at 424.

¶ 11. This case also presents questions of statutory interpretation. For guidance, we look to Meriter Hospital Inc. v. Dane County, 2004 WI 145, 277 Wis. 2d 1, 69 N.W.2d 627, where we discussed the standard of review applicable to issues of statutory interpretation. We stated:

The interpretation of a statute presents a question of law, which we review de novo. State v. Williams, 198 Wis. 2d 516, 525, 544 N.W.2d 406 (1996). Although we consider this question independent of the decisions of the circuit court and the court of appeals, we nevertheless benefit from their analyses. Meyer v. Sch. Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999).

When interpreting a statute, the primary objective "is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 662, 681 N.W.2d 110. Knowing this, the court's analysis should begin with the plain language of the statutory text. Id., ¶ 45. If the language of the statute is clear on its face, the court should apply the statute using the common and generally accepted meanings of the terms. Fox v. Catholic Knights Ins. Soc., 2003 WI 87, ¶ 19, 263 Wis. 2d 207, 219, 665 N.W.2d 181. With an unambiguous statute, the court need not consult extrinsic sources of interpretation. Kalal, 271 Wis. 2d 633, ¶ 46.

Meriter, 277 Wis. 2d 1, ¶¶ 12-13.

¶ 12. In Trujillo, this court held that the reduction in maximum penalties for crimes that resulted from TIS-II does not constitute a new factor when a defendant moves for the modification of a sentence imposed under TIS-I. Trujillo, 279 Wis. 2d 712, ¶ 2. In applying the plain language used by the legislature in the TIS-II enactments, we also held that "if the legislature wanted the reduced maximum penalties to be considered in TIS-I sentence modification hearings, it could have provided that the reduced penalties in TIS-II shall have retroactive application." Id., ¶ 21.

¶ 13. This case similarly involves a motion for sentence modification, where the defendant's current penalties for possession with intent to deliver cocaine and felony bail-jumping under TIS-I exceed the maximum penalties for those crimes under TIS-II. Accordingly, our decision in Trujillo is controlling. Thus, we conclude that a reduction in the maximum penalty under TIS-II is not a new factor and that the circuit court ruled correctly when it concluded that no new factor was present and therefore denied Tucker's motion for sentence modification.

¶ 14. The present case, however, involves additional issues that Trujillo does not address. Here, we also must decide whether Wis. Stat. § 973.195 allows a TIS-I offender to petition the court for sentence adjustment. The State of Wisconsin (State) argues that § 973.195 does not apply to such offenders because § 973.195(1g) utilizes the TIS-II felony classification system to determine the "applicable percentage" of the term of initial confinement a person must serve in order to be eligible for sentence adjustment. In addition, the State raises several questions as to how a TIS-I offender's "applicable percentage" would be calculated under the statute. In contrast, Tucker relies primarily on the legislative history of § 973.195 to conclude that the statute does apply to TIS-I offenders.

¶ 15. We begin by examining the text of the statute, which states that it applies to "[a]n inmate who is serving a sentence imposed under s. 973.01 for a crime other than a Class B felony[.]" Wis. Stat. § 973.195(1r). As recognized by both parties, a person serving a sentence under TIS-I is serving a sentence imposed under § 973.01. See Wis. Stat. § 973.01 (1999-2000). Thus, subsection (1r) of the sentence adjustment statute supports a conclusion that it applies to TIS-I offenders. ¶ 16. However, Wis. Stat. § 973.195(1g), which sets forth the "applicable percentage" of term of initial confinement a person...