973.013 Annotation
In sentencing after probation revocation, if the judge did not preside at the original sentencing, the judge must be able to rely upon the entire record, including comments at the first sentencing. When the record at the second sentencing reflected no recognition by the second judge of trial testimony, the presentence investigation report, or the trial judge's comments on the severity of the offense, the sentence could not stand. State v. Reynolds,
2002 WI App 15,
249 Wis. 2d 798,
640 N.W.2d 140,
01-0498.
973.013 Annotation
A court's correction of an invalid sentence by increasing the punishment does not constitute double jeopardy; the initial sentence being invalid, the second sentence is the only valid sentence imposed. An increased sentence is permissible at resentencing only when it is based upon a desire to implement the original dispositional scheme from the first sentencing and when the initial conviction and sentence are invalid, the resentencing court has no new information or newly known information, and the resentencing court seeks to impose a greater sentence. State v. Helm,
2002 WI App 154,
256 Wis. 2d 285,
647 N.W.2d 405,
01-2398.
973.013 Annotation
In fixing a sentence within statutory limits, the judge may consider the defendant's false testimony observed by the judge during trial. United States v. Grayson,
438 U.S. 41 (1978).
973.013 Annotation
The Lodestar of Personal Responsibility. Brennan. 88 MLR 365 (2004).
973.013 Annotation
Appellate sentence review. 1976 WLR 655. (1983).
973.0135
973.0135
Sentence for certain serious felonies; parole eligibility determination. 973.0135(1)(a)
(a) “Prior offender" means a person who meets all of the following conditions:
973.0135(1)(a)1.
1. The person has been convicted of a serious felony on at least one separate occasion at any time preceding the serious felony for which he or she is being sentenced.
973.0135(1)(a)2.
2. The person's conviction under subd.
1. remains of record and unreversed.
973.0135(1)(a)3.
3. As a result of the conviction under subd.
1., the person was sentenced to more than one year of imprisonment.
973.0135(1)(b)2.
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 (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),
943.32 (2),
946.43 (1m),
948.02 (1) or
(2),
948.025,
948.03 (2) (a) or
(c) or
(5) (a) 1.,
2.,
3., or
4.,
948.05,
948.051,
948.06,
948.07,
948.075,
948.08, or
948.30 (2).
973.0135(1)(b)4.
4. A crime at any time under federal law or the law of any other state or, prior to April 21, 1994, under the law of this state that is comparable to a crime specified in subd.
1.,
2. or
3. 973.0135(2)
(2) Except as provided in sub.
(3), when a court sentences a prior offender to imprisonment in a state prison for a serious felony committed on or after April 21, 1994, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:
973.0135(2)(b)
(b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may not set a date that occurs before the earliest possible parole eligibility date as calculated under s.
304.06 (1) and may not set a date that occurs later than two-thirds of the sentence imposed for the felony.
973.0135(3)
(3) A person is not subject to this section if the current serious felony is punishable by life imprisonment.
973.0135(4)
(4) If a prior conviction is being considered as being covered under sub.
(1) (b) 4. as comparable to a felony specified under sub.
(1) (b) 1.,
2. or
3., the conviction may be counted as a prior conviction under sub.
(1) (a) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under sub.
(1) (b) 1.,
2. or
3. if committed by an adult in this state.
973.014
973.014
Sentence of life imprisonment; parole eligibility determination; extended supervision eligibility determination. 973.014(1)(1)
Except as provided in sub.
(2), when a court sentences a person to life imprisonment for a crime committed on or after July 1, 1988, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:
973.014(1)(b)
(b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may set any later date than that provided in s.
304.06 (1), but may not set a date that occurs before the earliest possible parole eligibility date as calculated under s.
304.06 (1).
973.014(1)(c)
(c) The person is not eligible for parole. This paragraph applies only if the court sentences a person for a crime committed on or after August 31, 1995, but before December 31, 1999.
973.014(1g)(a)(a) Except as provided in sub.
(2), when a court sentences a person to life imprisonment for a crime committed on or after December 31, 1999, the court shall make an extended supervision eligibility date determination regarding the person and choose one of the following options:
973.014(1g)(a)1.
1. The person is eligible for release to extended supervision after serving 20 years.
973.014(1g)(a)2.
2. The person is eligible for release to extended supervision on a date set by the court. Under this subdivision, the court may set any later date than that provided in subd.
1., but may not set a date that occurs before the earliest possible date under subd.
1. 973.014(1g)(a)3.
3. The person is not eligible for release to extended supervision.
973.014(1g)(b)
(b) When sentencing a person to life imprisonment under par.
(a), the court shall inform the person of the provisions of s.
302.114 (3) and the procedure for petitioning under s.
302.114 (5) for release to extended supervision.
973.014(1g)(c)
(c) A person sentenced to life imprisonment under par.
(a) is not eligible for release on parole.
973.014(2)
(2) When a court sentences a person to life imprisonment under s.
939.62 (2m) (c), the court shall provide that the sentence is without the possibility of parole or extended supervision.
973.014 Annotation
The denial of presentence confinement credit when parole was established under sub. (2) [now sub. (1) (b)] was constitutional. State v. Chapman,
175 Wis. 2d 231,
499 N.W.2d 223 (Ct. App. 1993).
973.014 Annotation
Sub. (1) (b) allows a circuit court to impose a parole eligibility date beyond a defendant's expected lifetime. State v. Setagord,
211 Wis. 2d 397,
565 N.W.2d 506 (1997),
95-0207.
973.014 Annotation
A trial court sentencing a defendant under sub. (1) (b), exercising its discretion, may or may not give credit for presentence incarceration. State v. Seeley,
212 Wis. 2d 75,
567 N.W.2d 897 (Ct. App. 1997),
96-1939.
973.014 Annotation
Parole eligibility is not a statutorily or constitutionally necessary component of a valid plea colloquy in a case in which a life sentence is imposed. State v. Byrge,
225 Wis. 2d 702,
594 N.W.2d 388 (Ct. App. 1999),
97-3217.
973.014 Annotation
The United States Supreme Court in
Miller v. Alabama,
576 U.S. 460 (2012), did not foreclose a sentencer's ability to sentence a juvenile to life without the possibility of parole in homicide cases, but required sentencing courts to take into account how children are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Thus, it is not unconstitutional to sentence a juvenile to life imprisonment without the possibility of supervised release for intentional homicide under s. sub. (1g) (a) 3. if the circumstances warrant it. State v. Barbeau,
2016 WI App 51,
370 Wis. 2d 736,
883 N.W.2d 520,
14-2876.
973.014 Annotation
The mandatory minimum of 20 years' imprisonment provided by sub. (1g) (a) 1. as applied to children does not violate the prohibitions against cruel and unusual punishment contained in the United States and Wisconsin constitutions. State v. Barbeau,
2016 WI App 51,
370 Wis. 2d 736,
883 N.W.2d 520,
14-2876.
973.015
973.015
Special disposition. 973.015(1m)(a)1.1. Subject to subd.
2. and except as provided in subd.
3., when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition. This subsection does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under s.
343.23 (2) (a).
973.015(1m)(a)2.
2. The court shall order at the time of sentencing that the record be expunged upon successful completion of the sentence if the offense was a violation of s.
942.08 (2) (b),
(c), or
(d) or
(3), and the person was under the age of 18 when he or she committed it.
973.015(1m)(a)3.
3. No court may order that a record of a conviction for any of the following be expunged:
973.015(1m)(a)3.a.
a. A Class H felony, if the person has, in his or her lifetime, been convicted of a prior felony offense, or if the felony is a violent offense, as defined in s.
301.048 (2) (bm), or is a violation of s.
940.32,
948.03 (2),
(3), or
(5) (a) 1.,
2.,
3., or
4., or
948.095.
973.015(1m)(b)
(b) A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation. Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record. If the person has been imprisoned, the detaining authority shall also forward a copy of the certificate of discharge to the department.
973.015(2m)
(2m) At any time after a person has been convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for a violation of s.
944.30, a court may, upon the motion of the person, vacate the conviction, adjudication, or finding, or may order that the record of the violation of s.
944.30 be expunged, if all of the following apply:
973.015(2m)(b)
(b) The person committed the violation of s.
944.30 as a result of being a victim of trafficking for the purposes of a commercial sex act.
973.015(2m)(c)
(c) The person submitted a motion that complies with s.
971.30, that contains a statement of facts and, if applicable, the reason the person did not previously raise an affirmative defense under s.
939.46 or allege that the violation was committed as a result of being a victim of trafficking for the purposes of a commercial sex act, and that may include any of the following:
973.015(2m)(c)2.
2. Certified records of approval notices, law enforcement certifications, or similar documents generated from federal immigration proceedings.
973.015(2m)(c)3.
3. Official documentation from a federal, state, or local government agency.
973.015(2m)(c)4.
4. Other relevant and probative evidence of sufficient credibility in support of the motion.
973.015(2m)(d)
(d) The person made the motion with due diligence subject to reasonable concern for the safety of himself or herself, family members, or other victims of trafficking for the purposes of a commercial sex act or subject to other reasons consistent with the safety of persons.
973.015(2m)(e)
(e) A copy of the motion has been served on the office of the district attorney that prosecuted the case that resulted in the conviction, adjudication, or finding except that failure to serve a copy does not deprive the court of jurisdiction and is not grounds for dismissal of the motion.
973.015(2m)(f)
(f) The court in which the motion was made notified the appropriate district attorney's office of the motion and has given the district attorney's office an opportunity to respond to the motion.
973.015(2m)(g)
(g) The court determines that the person will benefit and society will not be harmed by a disposition.
973.015(3)
(3) A special disposition under this section is not a basis for a claim under s.
775.05.
973.015 Annotation
An expunged conviction is not admissible to attack a witness's credibility. State v. Anderson,
160 Wis. 2d 435,
466 N.W.2d 681 (Ct. App. 1991).
973.015 Annotation
This section does not require law enforcement agencies or prosecutors to destroy records relating to an expunged conviction, nor does it prohibit courts from considering the facts underlying an expunged conviction in sentencing in another case. State v. Leitner,
2002 WI 77,
253 Wis. 2d 449,
646 N.W.2d 341,
00-1718.
973.015 Annotation
A reasonable reading of this section is that the legislature included the words “at the time of sentencing" in sub. (1m) (a) 2. to limit the point in time at which the circuit court is to make a decision about expunction, and that the phrase “at the time of sentencing" means at the proceeding at which the circuit court announces the sanction. State v. Matasek,
2014 WI 27,
353 Wis. 2d 601,
846 N.W.2d 811,
12-1582.
973.015 Annotation
The only requirements sub. (2) [now sub. (1m) (b)] places on an individual defendant to successfully complete probation are that: 1) he or she has not been convicted of a subsequent offense; 2) his or her probation has not been revoked; and 3) he or she has satisfied all the conditions of probation. If a probationer satisfies these 3 criteria, he has earned expungement and is automatically entitled to expungement of the underlying charge. State v. Hemp,
2014 WI 129,
359 Wis. 2d 320,
856 N.W.2d 811,
13-1163.
973.015 Annotation
This section places no burden upon a person who successfully completes probation to petition the circuit court within a certain period of time in order to effectuate the expungement. The detaining or probationary authority must forward the certificate of discharge to the court of record upon the individual defendant's successful completion of his or her sentence and at that point the process of expungement is self-executing. State v. Hemp,
2014 WI 129,
359 Wis. 2d 320,
856 N.W.2d 811,
13-1163.
973.015 Annotation
This section does not apply to civil forfeiture violations. The language of sub. (1) (a) [now sub. (1m) (a) 1.] indicates that law violations for which expunction is available relate to laws that include some “period of imprisonment." Thus, where there is no period of imprisonment associated with a law, that law is not one to which this section applies. Kenosha County v. Frett,
2014 WI App 127,
359 Wis. 2d 246,
858 N.W.2d 397,
14-0006.
973.015 Annotation
The sentencing court did not erroneously exercise its discretion when it considered the fact that the defendant had previously successfully completed supervision in a case in which the record of conviction had been expunged.
Leitner allows consideration of all facts underlying an expunged record of conviction, not just the facts underlying the crime itself provided those facts are not obtained from expunged court records. It does not require interrelated facts between the crime underlying a prior expunged record of conviction and the facts underlying a current criminal conviction. Because the references to the defendant's expunged record of conviction in the PSI and at sentencing were obtained from sources other than expunged court records, they were permitted under
Leitner. State v. Allen,
2017 WI 7,
373 Wis. 2d 98,
890 N.W.2d 245,
14-2840.
973.015 Annotation
In assessing whether to grant expungement, the sentencing court should set forth in the record the facts it considered and the rationale underlying its decision for deciding whether to grant or deny expungement. In exercising discretion, the sentencing court must do something more than simply state whether a defendant will benefit from expungement and that society will or will not be harmed. State v. Helmbrecht,
2017 WI App 5,
373 Wis. 2d 203,
891 N.W.2d 412,
15-2300.
973.015 Annotation
“At the time of sentencing" in sub. (1m) (a) 1. means only at the time when sentence is imposed and does not also encompass post-sentencing motions for sentence modification. State v. Arberry,
2018 WI 7,
379 Wis. 2d 254,
905 N.W.2d 832,
16-0866.
973.015 Annotation
“Expunge" under this section means to strike or obliterate from the record all references to the defendant's name and identity. 67 Atty. Gen. 301.
973.015 Annotation
Circuit courts do not possess inherent powers to expunge or destroy conviction records. 70 Atty. Gen. 115.
973.017
973.017
Bifurcated sentences; use of guidelines; consideration of aggravating and mitigating factors. 973.017(1)(1)
Definition. In this section, “sentencing decision" means a decision as to whether to impose a bifurcated sentence under s.
973.01 or 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.
973.017(2)
(2) General requirement. When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after February 1, 2003, the court shall consider all of the following:
973.017(2)(b)
(b) Any applicable mitigating factors and any applicable aggravating factors, including the aggravating factors specified in subs.
(3) to
(8).
973.017(3)
(3) Aggravating factors; generally. When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors:
973.017(3)(a)
(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.
973.017(3)(b)
(b) The fact that the person committed the crime using information that was disclosed to him or her under s.
301.46.
973.017(3)(c)
(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).
