LUNDSTEN, J.
¶ 1 The question here is whether sentence adjustment under WIS. STAT. § 973.195 is available to reduce confinement time for persons serving an enhanced
¶ 2 Anderson was charged with four misdemeanors, each as a repeater. Under a plea agreement, Anderson entered no contest pleas to two counts of misdemeanor battery, each as a repeater. The imprisonment maximum for each unenhanced misdemeanor count was nine months. See WIS. STAT. § 939.51(3)(a). Under the repeater statute, WIS. STAT. § 939.62(1)(a), the total maximum sentence for each count was increased to two years and, under WIS. STAT. § 973.01(2)(b)10, the confinement portion of Anderson's sentence was limited to 75% of his total sentence, that is, eighteen months.
¶ 3 Pursuant to a joint recommendation, the circuit court specified that Anderson would serve his imprisonment in the Wisconsin prison system. The court imposed one year of initial confinement and one year of extended supervision on each count, and ordered the sentences to run concurrently.
¶ 4 After serving 75% of the confinement portion of each concurrent sentence, Anderson submitted two petitions for sentence adjustment, one for each count. The circuit court denied the petitions in a form order with a short explanation attached. The court wrote that Anderson was not eligible for sentence adjustment under WIS. STAT. § 973.195 because relief under that statute is available only to defendants convicted of felonies.
¶ 5 Anderson argues that the circuit court wrongly concluded that enhanced misdemeanants, like him, who are serving confinement time in prison are not eligible for sentence adjustment under WIS. STAT. § 973.195. Before we address that question, we address some threshold issues and provide some cautionary observations.
¶ 6
¶ 7 At the same time we note, in fairness to the circuit court, that our decision to address the merits of Anderson's new arguments means we are "blindsiding" that court with reversal based on arguments not presented to it, something we normally avoid. See State v. Rogers, 196 Wis.2d 817, 827, 539 N.W.2d 897 (Ct.App.1995) (stating the general rule that we "will not. . . blindside trial courts with reversals based on theories which did not originate in their forum").
¶ 8
We agree that it is appropriate to decide the question presented, even though it is moot as to Anderson.
¶ 9
¶ 10 However, courts are not required to impose a bifurcated sentence, which would necessarily include prison time, on persons convicted of enhanced misdemeanors. For example, so far as we can tell, under WIS. STAT. § 973.02 the circuit court here could have chosen to order Anderson to serve one year in jail with no extended supervision. Or, for that matter, the court could have imposed no confinement or less than one year of confinement on each count, which then would have required Anderson to serve any confinement time in jail, not in prison. See § 973.02. It was the court's decision to require Anderson to serve one year of confinement and to require that he serve that time in prison that resulted in the imposition of a bifurcated sentence and, in turn, gives rise to the question
¶ 11
¶ 12 We draw attention to this topic for two reasons. First, to make clear that, contrary to some of Anderson's arguments, it is not helpful to simply distinguish between enhanced misdemeanants and unenhanced misdemeanants. Second, to emphasize that we address only the situation in which a defendant, convicted of an enhanced misdemeanor, is actually given a bifurcated sentence for that misdemeanor which, by definition, includes confinement in prison.
¶ 13 We are asked to resolve whether sentence adjustment, under WIS. STAT. § 973.195, is available to reduce confinement time for persons serving an enhanced misdemeanor prison term. The primary subsection at issue here is § 973.195(1r)(a), which reads, in pertinent part:
Putting to the side the exceptions, which the parties seemingly agree do not apply here, this subsection imposes two requirements that must be met before an inmate may petition for sentence adjustment. The inmate must:
¶ 14 As to the first requirement, there is no dispute. WISCONSIN STAT. § 973.01 requires bifurcated sentencing for crimes committed after specified dates "whenever a court sentences a person to imprisonment in the Wisconsin state prisons." WIS. STAT. § 973.01(1). The statute explains that a "bifurcated sentence is a sentence that consists of a term of confinement in
¶ 15 While the parties agree that Anderson satisfies the first requirement because he was serving a sentence imposed under WIS. STAT. § 973.01, they disagree as to whether Anderson, or other enhanced misdemeanants, can satisfy the second "applicable percentage" requirement. The parties' "applicable percentage" disagreement is in two parts. First, the parties disagree as to whether the "applicable percentage" language in WIS. STAT. § 973.195(1r)(a) is ambiguous as applied here. Second, if the "applicable percentage" language is ambiguous, they disagree on how that ambiguity should be resolved. We address each topic below.
¶ 16 Pertinent here, WIS. STAT. § 973.195(1r)(a) declares that "an inmate. . . may petition the sentencing court to adjust the sentence if the inmate has served at least the applicable percentage of the term of confinement in prison portion of the sentence" (emphasis added). The applicable percentages for TIS-II felons are found in § 973.195(1g), which reads: "In this section, `applicable percentage' means 85% for a Class C to E felony and 75% for a Class F to I felony." The statutes do not identify an "applicable percentage" for enhanced misdemeanors.
¶ 17 According to the State, this means that enhanced misdemeanor prison terms are not covered by the sentence adjustment statute because there is no "applicable percentage" for such terms of imprisonment. If we were writing on a clean slate, we might agree with the State. Instead, we agree with Anderson that State v. Tucker, 2005 WI 46, 279 Wis.2d 697, 694 N.W.2d 926, leads to a different conclusion.
¶ 18 In Tucker, the question was whether prison inmates sentenced under TIS-I could benefit from the same sentence adjustment statute at issue here, WIS. STAT. § 973.195. And, as with Anderson here, it was undisputed that TIS-I inmates, like Tucker, satisfied the first requirement under § 973.195(1r). That is, TIS-I inmates like Tucker serve sentences imposed under WIS. STAT. § 973.01. See Tucker, 279 Wis.2d 697, ¶15, 694 N.W.2d 926.
¶ 19 Like Anderson here, the stumbling block for Tucker was the fact that the "applicable percentage" provision was silent
¶ 20 The Tucker court acknowledged that the failure of WIS. STAT. § 973.195(1g) to specify the "applicable percentage" for TIS-I terms of confinement "would seem to support" the conclusion that sentence adjustment under § 973.195 was unavailable to persons serving TIS-I terms of confinement. Tucker, 279 Wis.2d 697, ¶16, 694 N.W.2d 926. However, according to the Tucker court, this situation simply meant that the statute was ambiguous as to whether it applied to TIS-I inmates. Id., ¶17. The State's appellate brief here accurately summarizes the court's reasoning: "In concluding that the statute was ambiguous, the Tucker court reasoned that because a felon sentenced under TIS-I was serving a bifurcated sentence under Wis. Stat. § 973.01(1), the statute could reasonably be construed to allow those offenders to petition for adjustment."
¶ 21 Stated more fully, the Tucker court concluded that, because Tucker satisfied the first requirement that he was "serving a sentence imposed under s. 973.01," thereby indicating eligibility, there was ambiguity as to whether Tucker could satisfy the second requirement that he had served the "applicable percentage" of his sentence. See id., ¶¶ 15-17. That is the extent of the analysis. And, applying this analysis to inmates like Anderson, they are in the same situation as inmates like Tucker. Inmates serving enhanced misdemeanor prison terms meet the sentence-imposed-under § 973.01 requirement, thereby indicating eligibility, but the "applicable percentage" provision is silent as to the percentage of prison time such inmates must first serve before petitioning for sentence adjustment. Accordingly, following Tucker, we conclude that there is ambiguity as to whether persons serving enhanced misdemeanor prison terms can satisfy the "applicable percentage" requirement.
¶ 22 Before moving on, we comment on three parts of the State's no-ambiguity argument that we do not directly address above.
¶ 23 Focusing on Anderson's position, rather than on Tucker, the State contends that Anderson "side-steps" the fact that the "applicable percentage" requirement is a distinct limitation. According to the State, Anderson's "applicable percentage" ambiguity argument "presupposes" ambiguity based simply on the fact that Anderson satisfies the first requirement—that is, that he be serving a sentence under WIS. STAT. § 973.01. This might be a valid criticism, but for Tucker, where the supreme court rejected what amounts to the same ambiguity arguments the State makes here.
¶ 24 A different part of the State's no-ambiguity argument relies on Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis.2d 211, 612 N.W.2d 659, for the proposition that a statute may be ambiguous as applied in one circumstance and unambiguous as applied in another. Thus, the argument goes, just because WIS. STAT. § 973.195 is ambiguous as to TIS-I inmates does not mean it is ambiguous as to enhanced misdemeanants. This general proposition is plainly true. However, the State does not then explain why, applying Tucker's reasoning, the different circumstance here should lead to a different result.
¶ 25 Yet another part of the State's no-ambiguity argument seems to take the position that Tucker does not apply here because there is an absurdity argument that was not available in Tucker. If so, we are not persuaded. The State's absurd-results argument is based on a hypothetical in which two defendants each commit batteries, a Class A misdemeanor carrying a possible nine months of confinement. See WIS. STAT. §§ 940.19(1) and 939.51(3)(a). One defendant is convicted of an unenhanced misdemeanor and receives a jail sentence. The other defendant is a repeater and, thus, the nine-month maximum confinement is increased to eighteen months.
¶ 26 The flaw in the State's hypothetical is that it ignores substantial differences in the treatment of such misdemeanants. For example, the hypothetical treats as insignificant the fact that the repeater must fully serve nine months before even starting the sentence adjustment process by filing a petition. Moreover, after release, the repeater would be subject to supervision and possible revocation, whereas the non-repeater would simply be released. And, another fact ignored by the State is that the non-repeater, as a jail inmate, is eligible for early release under WIS. STAT. § 302.43, which could reduce the non-repeater's nine-month jail term by one-fourth. There are other factors that differentiate the repeater and the non-repeater in ways that undercut the State's absurdity argument, but what we say here is sufficient to reject that argument.
¶ 28 Having concluded under the Tucker analysis that there is ambiguity as to whether the sentence adjustment statute applies to enhanced misdemeanor prison terms, we look to the sources the parties discuss to resolve that ambiguity.
¶ 29 We begin with a strong indication of the legislature's intent—a comparison of enhanced misdemeanants sentenced to prison with felons sentenced to prison. Unlike the State's hypothetical, comparing a repeat misdemeanant sent to prison with a non-repeat misdemeanant sent to jail, the two categories we discuss here are subject to all or mostly all the same restrictions and benefits. For example, both enhanced misdemeanants sentenced to prison and felons sentenced to prison face the possible extension of confinement for poor prison conduct. See WIS. STAT. §§ 973.01(4) and 302.113(3). Both face supervision and possible revocation upon release. See §§ 973.01(2) and 302.113(9)(am). Neither are eligible for a "good time" reduction. See § 973.01(4).
¶ 30 Moreover, while the differences we discuss in ¶ 26 show why it is reasonable to authorize sentence adjustment for enhanced misdemeanants sentenced to prison, but not misdemeanants sentenced to jail, the similarities we describe in ¶ 29 show why it makes sense to treat enhanced misdemeanants and felons sentenced to prison the same when it comes to sentence adjustment. This proposition becomes even clearer when looking at an example of similarly sentenced inmates in these two categories. Suppose an enhanced misdemeanant and a felon both receive a total two-year sentence comprised of eighteen months of confinement and six months of extended supervision. Although both receive the same sentence, we know that the legislature considers the felon to have committed the more serious offense because even Class I felonies, the least serious class of felonies, carry with them higher maximum penalties than a repeater-enhanced Class A misdemeanor. Under the State's view, only the more serious offender, the felon, is eligible for sentence adjustment, even though both defendants received the same sentence. This makes no sense. To the contrary, the most sensible proposition is that the legislature intended to afford the enhanced misdemeanant the same opportunity for sentence reduction as the felon.
¶ 31 In sum, a comparison of the severity of offenses and consideration of the similarities between enhanced misdemeanants and felons who are both sentenced to prison provide strong support for the view that the legislature intended to afford both categories of offenders the opportunity for sentence adjustment.
¶ 32 The State argues that context shows that enhanced misdemeanants like Anderson were "on the legislature's radar" when it created the sentence adjustment statute, and that this awareness, combined with the legislature's simultaneous failure to specify an "applicable percentage" for enhanced misdemeanants serving prison terms, shows the legislature's intention that sentence adjustment not apply to this category of inmates. More specifically, the State notes that within the same act, 2001 Wis. Act 109, the legislature amended WIS. STAT. § 973.01, requiring that some enhanced misdemeanor sentences be bifurcated between confinement time in prison and extended supervision, while, in the words of the State, "at the same time declining to modify WIS. STAT.
¶ 33 Ordinarily, such reasoning would be persuasive. See Storm v. Legion Ins. Co., 2003 WI 120, ¶29, 265 Wis.2d 169, 665 N.W.2d 353 ("[W]hen the legislature enacts a new statute, it is presumed to know the new statute's relationship with existing and contemporaneously created statutory provisions, especially those directly affecting the statute."). However, here the reasoning runs up against the larger context of TIS-II and Tucker.
¶ 34 The State's on-the-legislature's-radar argument would have applied with greater force in Tucker. The class of inmates seemingly neglected by the legislature in Tucker was comprised of persons who were or would serve TIS-I prison terms. And, the legislature was acutely aware of TIS-I inmates. After all, 2001 Wis. Act 109 was the fix for TIS-I. However, the legislature's obvious awareness of TIS-I inmates, combined with the legislature's failure to specify an "applicable percentage" for such inmates, did not stop the Tucker court from concluding that TIS-I inmates are eligible for sentence adjustment. It follows that, for the State's on-the-legislature's-radar argument to work here, the legislature would have had to have been less mindful of TIS-I inmates than a relatively small category of prison inmates—those who would serve enhanced misdemeanor prison terms—a proposition we reject out of hand.
¶ 35 Looking beyond the statutory scheme, we find little guidance.
¶ 36 The State points to legislation and administrative action that followed 2001 Wis. Act 109. As to legislative action, the State points to modifications to Truth-in-Sentencing enacted in 2009 and 2011, including the enactment and then repeal of methods of obtaining early release, and related administrative rulemaking. For example, according to the State, this legislative activity included the creation and then later elimination of an early release mechanism that had a "similar practical effect" to WIS. STAT. § 973.195.
¶ 37 As to administrative action, the State acknowledges that the Department of Corrections apparently assumes that enhanced misdemeanant prison inmates like Anderson are eligible for sentence adjustment and, accordingly, the department currently facilitates sentence adjustment petitions for inmates like Anderson. For example, the department provides verification to courts that such petitioners have served sufficient time to be eligible for sentence adjustment, using 75% as the bench mark. The State speculates that the department's practice may be an out-growth of the department's effort to give effect to the other early release mechanism described in the prior paragraph. We are uncertain what to make of this subsequent history argument.
¶ 38 On the one hand, the State may be suggesting that the legislative decision, in 2009, to create and then, in 2011, to eliminate a different earlier release mechanism indicates our legislature's intent, in 2001, that the sentence adjustment statute not apply to enhanced misdemeanor prison terms. The State seemingly reasons that this is true because the 2011 legislative action eliminated a different early release mechanism that arguably provided a statutory basis for a 75% "applicable percentage" for misdemeanants for purposes of the early release mechanism at issue here, sentence adjustment under WIS. STAT. § 973.195. On the other hand, the
¶ 39 As described by the State, the nature of the 2009 legislation does not rely on an assumption that the previously existing statutory scheme contained a 75% "applicable percentage" for misdemeanants with respect to sentence adjustment. It follows that no such assumed "applicable percentage" could have been eliminated in 2011. That is to say, we can discern no basis for the State's assertion that legislative activity in 2009 created an arguable statutory basis for a 75% standard for misdemeanants applicable to the sentence adjustment statute that was eliminated in 2011. If the State merely means to make the point that the department's practice is weak support for Anderson's interpretation, we agree. We do not rely on that practice to resolve ambiguity.
¶ 40 Turning to a different source, the State asserts that "contemporaneous analyses" of TIS-II by knowledgeable persons involved in recommending remedies for perceived shortcomings of TIS-I support the State's view that sentence adjustment does not apply to enhanced misdemeanor prison terms. However, we agree with Anderson that the contemporaneous analyses the State points to provide no such support.
¶ 41 We decline to detail all of the commentary the parties discuss. However, a representative example is contained in a footnote in an article, partly authored by Michael Brennan. The State correctly identifies then-Judge Brennan as a knowledgeable person and directs our attention to footnote 81 in "Brennan et al., Fully Implementing Truth-in-Sentencing, at 54 & n. 81." The footnote reads: "While inmates serving a bifurcated sentence for an enhanced misdemeanor apparently may petition for a sentence adjustment, the statute does not specify the applicable percentage of time that they must serve before petitioning and obtaining release." Michael B. Brennan, Thomas J. Hammer, Donald V. Latorraca, Fully Implementing Truth-in-Sentencing, Vol. 75, WIS. LAW., No. 11, at 10, 54 & 56 n. 81 (Nov. 2002) (emphasis added). Rather than supporting the State's view, this language suggests that, at the time the sentence adjustment statute was enacted, knowledgeable persons assumed it did apply to enhanced misdemeanor prison terms. That last phrase in the footnote merely acknowledges the obvious—that there may be a problem in determining the "applicable percentage."
¶ 42 To sum up, we resolve ambiguity in favor of a category of prison inmates that is, for purposes relevant here, comparably situated to the TIS-I inmates at issue in Tucker. We conclude that the legislature intended that the sentence adjustment statute apply to enhanced misdemeanor prison terms, even though the legislature did not specify an "applicable percentage" for that category. What remains is determining the "applicable percentage."
¶ 43 All of the State's arguments regarding the "applicable percentage" are made in the context of arguing that the lack of an expressly specified "applicable percentage" for enhanced misdemeanor prison terms either (1) shows that the plain language of the sentence adjustment
¶ 44 For the reasons above, we reverse the circuit court's order denying Anderson's petitions for sentence adjustment. Given Anderson's mootness concession, we see no need for further proceedings.
Order reversed.
The references in WIS. STAT. § 973.195(1g) to "a Class C to E felony" and "a Class F to I felony" are unmistakable references to the TIS-II penalty scheme. Neither indeterminate sentencing prior to TIS-I nor TIS-I included Class F to I felonies. See Tucker, 279 Wis.2d 697, ¶16, 694 N.W.2d 926; see also Stenklyft, 281 Wis.2d 484, ¶54, 697 N.W.2d 769 (relying on a Legislative Reference Bureau source for the proposition that inmates who receive indeterminate sentences are not eligible for sentence adjustment because those inmates may obtain early release through parole).
