COA critiques Gramza but extends its holding to apply to § 973.195 petitions for sentence adjustment
State v. Angela R. Joski, 2023AP1371-CR, 10/29/25, District II (recommended for publication); case activity
The state appealed Joski’s early release under Wis. Stat. § 973.195, arguing that pursuant to State v. Gramza, 2020 WI App 81, ¶24, 395 Wis. 2d 215, 952 N.W.2d 836, Joski must fully serve the mandatory minimum three-year term of initial confinement prescribed by Wis. Stat. § 346.65. COA agrees due to Gramza‘s interpretation, and reverses.
The relevant facts are little more than what’s described above. COA emphasizes that under Wis. Stat. § 346.65(2)(am)6., “[t]he court shall impose a bifurcated sentence under [Wis. Stat. §] 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 3 years.” At sentencing, the circuit court imposed the three year mandatory minimum term of confinement. (¶2).
After serving 75% of her initial confinement, Joski petitioned the circuit court for sentence adjustment. (¶3). The state objected, as Joski had received the three-year mandatory minimum term of confinement. Regardless, the court granted Joski’s petition. (¶5).
On appeal, the state relies on Gramza in asserting that the circuit court erred in granting Joski’s petition because doing so had the effect of reducing the confinement portion of her sentence to less than the mandatory minimum. COA applies Gramza, explaining:
¶8 Like Joski, Gramza was convicted of OWI-seventh offense and was subjected to the requirement that the circuit court impose on him a bifurcated sentence with a term of initial confinement of no less than three years. Gramza, 395 Wis. 2d 215, ¶2. Like the circuit court in the present case, the court in Gramza sentenced Gramza to the minimum of three years of initial confinement. Id., ¶7. At the same time, however, the court also made Gramza eligible for the statutory Substance Abuse Program (SAP). Id. Upon successful completion of the SAP, similar to the operation of the Wis. Stat. § 973.195 sentence adjustment provision, a defendant is to be released from confinement and his or her sentence modified so that the remaining period of confinement is converted to extended supervision time. See Gramza, 395 Wis. 2d 215, ¶1; Wis. Stat. § 302.05(3)(c)2.
¶9 Approximately six months into serving his sentence, Gramza completed the SAP, and the Department of Corrections requested that the circuit court authorize his release from confinement and convert his remaining confinement time to extended supervision time. Gramza, 395 Wis. 2d 215, ¶¶2, 8. Relying upon Wis. Stat. § 346.65(2)(am)6., the court denied this request on the basis that Gramza would then not have served the full three years of confinement imposed at sentencing pursuant to that statute. Gramza, 395 Wis. 2d 215, ¶¶3, 12-14.
(¶¶8-9). In Gramza, COA “noted the conflict in attempting to apply both the three-year-mandatory-minimum confinement statute and the SAP statute to the facts” of that case, and:
Despite recognizing that the OWI-seventh statute states only that three years of initial confinement must be “imposed” by a circuit court on a person convicted of that statute, we nonetheless concluded that Gramza’s reliance on the legislature’s use of the word “imposed” “would lead to the unreasonable result of allowing the mandatory minimum sentence for an OWI-7th conviction to be circumvented, directly contradicting the intent of the legislature” to “increase the penalties for multiple OWI convictions by mandating a minimum term of initial confinement that must be served.” Id., ¶¶16, 19, 22 (emphasis added). We thus flatly read the legislature’s requirement in Wis. Stat. § 346.65(2)(am)6. that a circuit court “impose” on an OWI-seventh defendant a confinement portion of not less than three years as meaning that such a defendant must “serve[]” no less than three years in confinement. Gramza, 395 Wis. 2d 215, ¶22.
(¶11).
COA questions Gramza‘s interpretation that § 973.01 requires a defendant to serve the full mandatory minimum. This interpretation is especially problematic given the the langauge of § 973.195(1r)(a), which provides that “an inmate who is serving a [bifurcated sentence of confinement and extended supervision] for a crime other than a Class B felony may petition the sentencing court to adjust the sentence.” (Emphasis added). (¶¶13-14). COA reasons as follows:
The legislature’s choice to except only Class B felonies from the applicability of § 973.195 strongly indicates the legislature intended no other exceptions, such as for an OWI-seventh offense, a Class G felony at the time of Joski’s offense. Furthermore, the legislature did not employ commonly used language such as “except as otherwise provided by law,” which would at least lend some support to a reading of § 973.195 as incorporating the Wis. Stat. § 346.65(2)(am)6. language stating that for a person convicted of OWI seventh, eighth, or ninth, “the confinement portion of the bifurcated sentence imposed on the person shall be not less than 3 years.” Sec. 346.65(2)(am)6.
Wisconsin Stat. § 346.65(2)(am)6. requires a sentencing court to “impose” a bifurcated sentence with a confinement portion of “not less than 3 years.” The sentencing court here adhered to this requirement, imposing a bifurcated sentence on Joski with a confinement portion of three years. Contrary to our statement in Gramza, nothing in § 346.65(2)(am)6. indicates the full three years of confinement must be served by a defendant sentenced thereunder, especially in light of Wis. Stat. § 973.195, which gives no hint that it does not apply to a sentence imposed under § 346.65(2)(am)6.
(¶¶14-15).
COA concludes that because it is bound to follow Gramza, and cannot apply what it believes is a “more correct” interpretation of Wis. Stat. § 346.65(2)(am)6., it must hold that the circuit court erred in granting Joski’s petition for sentence adjustment and reverse.