Amendment ASA1-AB3

AB3-ASA1,184,13 973.01 (6) No parole. A person serving a bifurcated sentence imposed under sub. (1) is not eligible for release on parole under that sentence.

AB3-ASA1, s. 822 Section 822. 973.01 (7m) of the statutes is created to read:

AB3-ASA1,184,21 973.01 (7m) Modification of bifurcated sentence. A court may at any time modify a bifurcated sentence that the court previously imposed by reducing the term of confinement in prison portion of the sentence and lengthening the term of extended supervision imposed so that the total length of the bifurcated sentence originally imposed does not change. A proceeding to modify a bifurcated sentence under this subsection shall be conducted using the procedure established and the factors specified by the director of state courts under s. 758.19 (8).

AB3-ASA1, s. 823 Section 823. 973.0135 (1) (b) 2. of the statutes is amended to read:

AB3-ASA1,185,3 973.0135 (1) (b) 2. Any felony under s. 940.09 (1), 1999 stats., s. 943.23 (1m) or (1r), 1999 stats., s. 948.35 (1) (b) or (c), 1999 stats., or s. 948.36, 1999 stats., s. 940.01, 940.02, 940.03, 940.05, 940.09 (1) (1c), 940.16, 940.19 (5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43 (1m), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, or 948.30 (2), 948.35 (1) (b) or (c) or 948.36.

AB3-ASA1, s. 824 Section 824. 973.017 of the statutes is created to read:

AB3-ASA1,185,10 973.017 Bifurcated sentences; use of guidelines; consideration of aggravating and mitigating factors. (1) Definition. In this section, "sentencing decision" means a decision as to whether to impose a bifurcated sentence under s. 973.01 or to place a person on probation and a decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine, and the length of a term of probation.

AB3-ASA1,185,14 (2) General requirement. When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after the effective date of this subsection .... [revisor inserts date], the court shall consider all of the following:

AB3-ASA1,185,19 (a) If the offense is a felony, the sentencing guidelines adopted by the sentencing commission under s. 973.30 or, if the sentencing commission has not adopted a guideline for the offense, any applicable temporary sentencing guideline adopted by the criminal penalties study committee created under 1997 Wisconsin Act 283.

AB3-ASA1,185,21 (b) Any applicable mitigating factors and any applicable aggravating factors, including the aggravating factors specified in subs. (3) to (8).

AB3-ASA1,185,23 (3) Aggravating factors; generally. When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors:

AB3-ASA1,186,3 (a) The fact that the person committed the crime while his or her usual appearance was concealed, disguised, or altered, with the intent to make it less likely that he or she would be identified with the crime.

AB3-ASA1,186,5 (b) The fact that the person committed the crime using information that was disclosed to him or her under s. 301.46.

AB3-ASA1,186,9 (c) The fact that the person committed the crime for the benefit of, at the direction of, or in association with any criminal gang, as defined in s. 939.22 (9), with the specific intent to promote, further, or assist in any criminal conduct by criminal gang members, as defined in s. 939.22 (9g).

AB3-ASA1,186,12 (d) The fact that the person committed the felony while wearing a vest or other garment designed, redesigned, or adapted to prevent bullets from penetrating the garment.

AB3-ASA1,186,16 (e) 1. Subject to subd. 2., the fact that the person committed the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision, if any of the following circumstances also applies to the felony committed by the person:

AB3-ASA1,186,17 a. The person caused bodily harm, great bodily harm, or death to another.

AB3-ASA1,186,21 b. The person caused damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this subd. 1. b., property is reduced in value by the amount that it would cost either to repair or to replace it, whichever is less.

AB3-ASA1,186,22 c. The person used force or violence or the threat of force or violence.

AB3-ASA1,187,2 2. a. In this subdivision, "labor dispute" includes any controversy concerning terms, tenure, or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

AB3-ASA1,187,4 b. Subdivision 1. does not apply to conduct arising out of or in connection with a labor dispute.

AB3-ASA1,187,6 (4) Aggravating factors; serious sex crimes committed while infected with certain diseases. (a) In this subsection:

AB3-ASA1,187,8 1. "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

AB3-ASA1,187,10 2. "Serious sex crime" means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), or 948.025.

AB3-ASA1,187,12 3. "Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C, or chlamydia.

AB3-ASA1,187,15 4. "Significantly exposed" means sustaining a contact which carries a potential for transmission of a sexually transmitted disease or HIV by one or more of the following:

AB3-ASA1,187,18 a. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.

AB3-ASA1,187,22 b. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.

AB3-ASA1,188,2 c. Exchange, into an eye, an open wound, an oozing lesion, or other place where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.

AB3-ASA1,188,5 (b) When making a sentencing decision concerning a person convicted of a serious sex crime, the court shall consider as an aggravating factor the fact that the serious sex crime was committed under all of the following circumstances:

AB3-ASA1,188,9 1. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime had a sexually transmitted disease or acquired immunodeficiency syndrome or had had a positive test for the presence of HIV, antigen, or nonantigenic products of HIV or an antibody to HIV.

AB3-ASA1,188,14 2. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime knew that he or she had a sexually transmitted disease or acquired immunodeficiency syndrome or that he or she had had a positive test for the presence of HIV, antigen, or nonantigenic products of HIV or an antibody to HIV.

AB3-ASA1,188,17 3. The victim of the serious sex crime was significantly exposed to HIV or to the sexually transmitted disease, whichever is applicable, by the acts constituting the serious sex crime.

AB3-ASA1,188,19 (5) Aggravating factors; violent felony committed against elder person. (a) In this subsection:

AB3-ASA1,188,20 1. "Elder person" means any individual who is 62 years of age or older.

AB3-ASA1,188,22 2. "Violent felony" means any felony under s. 940.19 (2), (4), (5), or (6), 940.225 (1), (2), or (3), 940.23, or 943.32.

AB3-ASA1,189,2 (b) When making a sentencing decision concerning a person convicted of a violent felony, the court shall consider as an aggravating factor the fact that the victim of the violent felony was an elder person. This paragraph applies even if the person mistakenly believed that the victim had not attained the age of 62 years.

AB3-ASA1,189,9 (6) Aggravating factors; child sexual assault or child abuse by certain persons. (a) In this subsection, "person responsible for the welfare the child" includes the child's parent, stepparent, guardian, foster parent, or treatment foster parent; an employee of a public or private residential home, institution, or agency; any other person legally responsible for the child's welfare in a residential setting; or a person employed by one who is legally responsible for the child's welfare to exercise temporary control or care for the child.

AB3-ASA1,189,13 (b) When making a sentencing decision concerning a person convicted of a violation of s. 948.02 (1) or (2), 948.025 (1), or 948.03 (2) or (3), the court shall consider as an aggravating factor the fact that the person was a person responsible for the welfare of the child who was the victim of the violation.

AB3-ASA1,189,18 (7) Aggravating factors; homicide or injury by intoxicated use of a vehicle. When making a sentencing decision concerning a person convicted of a violation of s. 940.09 (1) or 940.25 (1), the court shall consider as an aggravating factor the fact that, at the time of the violation, there was a minor passenger under 16 years of age or an unborn child in the person's motor vehicle.

AB3-ASA1,189,21 (8) Aggravating factors; controlled substances offenses. (a) Distribution or delivery to prisoners. 1. In this paragraph, "precinct" means a place where any activity is conducted by a prison, jail, or house of correction.

AB3-ASA1,190,2 2. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance or controlled substance analog to a prisoner within the precincts of any prison, jail, or house of correction.

AB3-ASA1,190,9 (b) Distribution or delivery on public transit vehicles. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance included in schedule I or II or a controlled substance analog of any controlled substance included in schedule I or II and that the person knowingly used a public transit vehicle during the violation.

AB3-ASA1,190,14 (9) Aggravating factors not an element of the crime. The aggravating factors listed in this section are not elements of any crime. A prosecutor is not required to charge any aggravating factor or otherwise allege the existence of an aggravating factor in any pleading for a court to consider the aggravating factor when making a sentencing decision.

AB3-ASA1,190,21 (10) Use of guidelines; no right to or basis for appeal. The requirement under sub. (2) (a) that a court consider sentencing guidelines adopted by the sentencing commission or the criminal penalties study committee does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines, and there is no right to appeal a court's sentencing decision based on the court's decision to depart in any way from any guideline.

AB3-ASA1,191,3 (11) Statement of reasons for sentence. The court shall state in open court and on the record the reasons for its imposition of a particular sentence and the reasons for each element of its sentencing decision, including its decision as to whether to impose a bifurcated sentence under s. 973.01 or to place a person on probation and its decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine, and the length of a term of probation.

AB3-ASA1,191,7 (12) Standard of review on appeal. (a) In an appeal from a court's sentencing decision, the appellate court shall reverse the sentencing decision if it determines that the sentencing court erroneously exercised its discretion in making the sentencing decision.

AB3-ASA1,191,9 (b) An erroneous exercise of discretion occurs under any of the following circumstances:

AB3-ASA1,191,11 1. The sentencing court fails to exercise discretion in making its sentencing decision.

AB3-ASA1,191,13 2. The sentencing court fails to explain its reasoning process in making its sentencing decision.

AB3-ASA1,191,15 3. The sentencing court bases its sentencing decision on clearly irrelevant or improper factors.

AB3-ASA1,191,17 4. The sentencing court gives too much weight to one factor in the face of other contravening factors in making its sentencing decision.

AB3-ASA1,191,21 5. The sentencing court imposes a sentence that is so excessive, unusual, or disproportionate to the offense as to shock the public sentiment and violate the judgment of reasonable persons concerning what is right and proper under the circumstances.

AB3-ASA1,191,24 6. There is not substantial evidence in the record to support the reasons stated on the record under sub. (11) for the imposition of the sentence and the sentencing decision.

AB3-ASA1,192,3 (c) Paragraph (b) does not preclude an appellate court from finding that a sentencing court erroneously exercised its discretion for reasons other than those specified in par. (b).

AB3-ASA1, s. 825 Section 825. 973.03 (3) (e) 1. and 2. of the statutes are amended to read:

AB3-ASA1,192,5 973.03 (3) (e) 1. A crime which is a Class A or, B, or C felony.

AB3-ASA1,192,7 2. A crime which is a Class C D, E, F, or G felony listed in s. 969.08 (10) (b), but not including any crime specified in s. 943.10.

AB3-ASA1, s. 826 Section 826. 973.03 (3) (e) 3. of the statutes is repealed.

AB3-ASA1, s. 827 Section 827. 973.031 of the statutes is created to read:

AB3-ASA1,192,18 973.031 Court-ordered drug treatment. Whenever the court imposes a sentence or places a person on probation for any offense committed on or after the effective date of this section .... [revisor inserts date], the court may order the person to participate in a drug treatment program as a condition of probation or, in the case of a person sentenced under s. 973.01, while the person is in prison or as a condition of extended supervision or both. The court may order the department to pay for the cost of drug treatment under this section from the appropriation under s. 20.410 (1) (a) for persons in jail or prison or under s. 20.410 (1) (b) for persons on probation or extended supervision.

AB3-ASA1, s. 828 Section 828. 973.032 (4) (c) 2. of the statutes is amended to read:

AB3-ASA1,192,22 973.032 (4) (c) 2. The person is sentenced for the escape under s. 946.42 (4) (b) to a sentence of imprisonment concurrent with the sentence to the intensive sanctions program.

AB3-ASA1, s. 829 Section 829. 973.075 (1) (b) 1m. e. of the statutes is amended to read:

AB3-ASA1,192,25 973.075 (1) (b) 1m. e. To cause more than $1,000 $2,000 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

AB3-ASA1, s. 830 Section 830. 973.075 (2) (d) of the statutes is amended to read:

AB3-ASA1,193,8 973.075 (2) (d) The officer has probable cause to believe that the property was derived from or realized through a crime or that the property is a vehicle which was used to transport any property or weapon used or to be used or received in the commission of any felony, which was used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47 or which was used to cause more than $1,000 $2,000 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

AB3-ASA1, s. 831 Section 831. 973.09 (2) (b) 1. of the statutes is amended to read:

AB3-ASA1,193,12 973.09 (2) (b) 1. Except as provided in subd. 2., for felonies, not less than one year nor more than either the statutory maximum term of imprisonment confinement in prison for the crime or 3 years, whichever is greater.

AB3-ASA1, s. 832 Section 832. 973.09 (6) of the statutes is created to read:

AB3-ASA1,193,15 973.09 (6) The court may require as a condition of probation that the person participate in a drug treatment program under s. 973.031.

AB3-ASA1, s. 833 Section 833. 973.15 (2m) of the statutes is created to read:

AB3-ASA1,193,17 973.15 (2m) (a) Definitions. In this subsection:

AB3-ASA1,193,20 1. "Determinate sentence" means a bifurcated sentence imposed under s. 973.01 or a life sentence under which a person is eligible for release to extended supervision under s. 973.014 (1g) (a) 1. or 2.

AB3-ASA1,193,22 2. "Indeterminate sentence" means a sentence to the Wisconsin state prisons other than one of the following:

AB3-ASA1,193,23 a. A determinate sentence.

AB3-ASA1,193,25 b. A sentence under which the person is not eligible for release on parole under s. 939.62 (2m) (c) or 973.014 (1) (c).

AB3-ASA1,194,5 3. "Period of confinement in prison," with respect to any sentence to the Wisconsin state prisons, means any time during which a person is incarcerated under that sentence, including any extensions imposed under s. 302.11 (3), 302.113 (3), or 302.114 (3) and any period of confinement in prison required to be served under s. 302.11 (7) (am), 302.113 (9) (am), or 302.114 (9) (am).

AB3-ASA1,194,10 (b) Determinate sentences imposed to run concurrent with or consecutive to determinate sentences. 1. If a court provides that a determinate sentence is to run concurrent with another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences concurrently and the terms of extended supervision under the sentences concurrently.

AB3-ASA1,194,15 2. If a court provides that a determinate sentence is to run consecutive to another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences consecutively and the terms of extended supervision under the sentences consecutively and in the order in which the sentences have been pronounced.

AB3-ASA1,194,22 (c) Determinate sentences imposed to run concurrent with or consecutive to indeterminate sentences. 1. If a court provides that a determinate sentence is to run concurrent with an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence concurrent with the period of confinement in prison under the indeterminate sentence and the term of extended supervision under the determinate sentence concurrent with the parole portion of the indeterminate sentence.

AB3-ASA1,195,3 2. If a court provides that a determinate sentence is to run consecutive to an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence consecutive to the period of confinement in prison under the indeterminate sentence and the parole portion of the indeterminate sentence consecutive to the term of extended supervision under the determinate sentence.

AB3-ASA1,195,10 (d) Indeterminate sentences imposed to run concurrent with or consecutive to determinate sentences. 1. If a court provides that an indeterminate sentence is to run concurrent with a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence concurrent with the period of confinement in prison under the determinate sentence and the parole portion of the indeterminate sentence concurrent with the term of extended supervision required under the determinate sentence.

AB3-ASA1,195,16 2. If a court provides that an indeterminate sentence is to run consecutive to a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence consecutive to the period of confinement in prison under the determinate sentence and the parole portion of the indeterminate sentence consecutive to the term of extended supervision under the determinate sentence.

AB3-ASA1,195,22 (e) Revocation in multiple sentence cases. If a person is serving concurrent determinate sentences and extended supervision is revoked in each case, or if a person is serving a determinate sentence concurrent with an indeterminate sentence and both extended supervision and parole are revoked, the person shall concurrently serve any periods of confinement in prison required under those sentences under s. 302.11 (7) (am), 302.113 (9) (am), or 302.114 (9) (am).

AB3-ASA1, s. 834 Section 834. 973.155 (1) (b) of the statutes is amended to read:

AB3-ASA1,196,3 973.155 (1) (b) The categories in par. (a) include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 302.113 (8m), 302.114 (8m), 304.06 (3), or 973.10 (2) placed upon the person for the same course of conduct as that resulting in the new conviction.

AB3-ASA1, s. 835 Section 835. 973.30 of the statutes is created to read:

AB3-ASA1,196,6 973.30 Sentencing commission. (1) Duties. The sentencing commission shall do all of the following: