COA: Sentencing court may set eligibility date for extended supervision based on victim’s life expectancy if relevant to a primary sentencing factor.
State v. Antwon C. Powell, 2024AP2551, 8/25/26, District III (not recommended for publication); case activity
The COA held that a circuit court may rely on a victim’s life expectancy to set an eligibility date for extended supervision, provided life expectancy is relevant to the primary sentencing factors.
Antwon Powell was convicted at trial of first-degree intentional homicide after the State presented evidence that Powell shot the victim and another person because he believed they stole $500 and marijuana from him. The circuit court sentenced Powell to life in prison, but made him eligible for extended supervision after he serves 38 years. The circuit court explained that the victim was 32 years old when he was killed and the average life expectancy for a man at the time (2015) was 75: “He should have lived for another 43 years.” (¶ 11). Given that Powell was sentenced five years after the homicide, the court said:
What the Court’s going to do is issue a life sentence with an extended supervision eligibility date of 38 years. I’m trying to justify a number. Today [the victim] would be living for 38 more years if you use the Life Expectancy Table and maybe life expectancy numbers have gone up. I don’t know if it makes a difference if it’s 30, 35, 40. It isn’t a case where as much as I know the victims would like for the reasons stated I don’t think it’s a life without extended supervision but I think 38 years is appropriate.
(¶ 11) (alterations omitted).
Powell filed a postconviction motion asking for resentencing because the court erroneously exercised its discretion by improperly relying on the victim’s life expectancy when setting his eligibility date for extended supervision. The motion was denied and Powell renewed his argument on appeal.
The COA considered Powell’s appeal to argue that the circuit court placed undue emphasis on the victim’s life expectancy, to the exclusion of the other Gallion sentencing factors. The COA observed that, although a victim’s life expectancy is not among the primary or secondary sentencing factors specified in Gallion or Harris, the sentencing factors are non-exclusive. (¶ 19). Significant to the COA was that Gallion found statements from the victims relevant to the gravity of the offense, and Wis. Stat. § 950.04(1v)(pm) provides crime victims the right to inform the court of the economic, physical, and psychological effect of the crime upon them. (¶ 20).
The COA concluded that “the circuit court properly exercised its sentencing discretion when setting Powell’s extended supervision eligibility date because the court’s decision to link this date to Michael’s life expectancy was grounded in its application of the Gallion factors, which focused on the gravity of the offense, particularly its impact on the victims, and the needlessness of the homicide.” (¶ 21).