State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate
Issue: Whether an offense which was partially committed during the TIS-I regime but not completed until advent of TIS-II comes under the former or latter sentencing regime.
Holding:
¶11 Thums had not committed the crime of stalking with a dangerous weapon during TIS-I. He therefore did not become subject to the TIS-I penalties during TIS-I. … Indeed, because Thums’ conduct did not meet the elements of stalking with a dangerous weapon on the effective date of TIS-II, his liability for that crime was prospective on that date, not retrospective. Thus, application of TIS-II would also not offend the general rule that statutes presumptively have only prospective effect. SeeBetthauser v. Medical Protective Co., 172 Wis. 2d 141, 147, 493 N.W.2d 40 (1992).
¶12 … (T)he fact that a defendant has notice of an obsolete penalty scheme does not mean the courts may apply penalties that the legislature no longer prescribes. [3]
¶13 Finally, we reject the State’s alternative argument that we should leave the penalty to the prosecutor’s discretion. Again, penalties are prescribed by the legislature. Prosecutorial discretion only allows the State to choose among available penalty schemes. …
[3] Moreover, Thums’ notice necessarily includes notice of the change in penalty. Such a change could reasonably affect a defendant’s expectations about what sentence the court might apply to him or her, which in turn might affect that individual’s conduct. Theoretically, if a defendant has notice that a harsher penalty remains in effect, he or she may well decide not to complete the offense.
There is a related problem that the court expressly does not reach: what penalty scheme applies to a continuing offense that straddles the date of a penalty change, ¶8 and id., n. 2.
