State v. James Hubert Tucker, Jr., 2005 WI 45, affirming summary order of court of appeals
For Tucker: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶18 An analysis of 2001 Wis. Act 109 by the Legislative Reference Bureau clearly supports the conclusion that persons sentenced under TIS-I are able to utilize the procedure set forth in Wis. Stat. § 973.195 … .
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¶20 As discussed previously in Trujillo, persons sentenced under TIS-I generally serve longer periods of confinement than those sentenced under either the old indeterminate system of sentencing or TIS-II as a result of the delay between the implementation of TIS-I and TIS-II. One of the features of the TIS-II reclassification of felonies was that the initial period of confinement for crimes was changed so as to approximate the maximum time served under the indeterminate system of sentencing. Thus, the very act that changed the penalty structure for numerous offenses also provided a mechanism for adjusting sentences based on a change in law or procedure related to sentencing or revocation of extended supervision. This strongly supports the conclusion that the legislature intended the sentence adjustment provision to apply to TIS-I offenders.
Sec. 973.195 requires service of a specified percentage of sentence, depending on Class of felony, before the petition can be filed. These Classes relate only to TIS-II, not -I, which the court acknowledges causes a problem in making a TIS-I service-of-sentence calculation, ¶22. “However, this problem is remedied by simply applying the TIS-II felony classification under Wis. Stat. § 939.50 to persons sentenced under TIS-I for the limited purpose of determining the ‘applicable percentage’ of a term of initial confinement in a Wis. Stat. § 973.195 petition for sentence adjustment,” ¶23. Thus, for example, Tucker’s TIS-I Class D felony may be deemed a TIS-II Class H felony for petition-adjustment purposes.See also State v. David S. Stenklyft, 2005 WI 71:
¶3 We conclude, in accordance with State v. Tucker, 2005 WI 46, ¶¶22-24, ___Wis. 2d ___, 694 N.W.2d 926, that § 973.195 applies to inmates sentenced under TIS-I and that the felony classification system employed by the second phase of Truth-in-Sentencing (TIS-II), under Wis. Stat. § 939.50, should be utilized to determine the “applicable percentage” of the term of initial confinement an inmate sentenced under TIS-I must serve in order to file a petition for sentence adjustment. That “applicable percentage” is then applied to the sentence originally imposed to determine if the inmate is eligible to file a petition under Wis. Stat. § 973.195(1g). Id., ¶23. Because the crime for which Stenklyft was convicted is now classified as a Class F felony and there is no dispute that he served 75 percent of the initial confinement portion of his sentence, we conclude that his petition for sentence adjustment was not premature under § 973.195(1g).
