(1g) DEFINITION. In this section, "applicable percentage" means 85 percent for a Class C to E felony and 75 percent for a Class F to I felony.(1r) CONFINEMENT IN PRISON. (a) Except as provided in s. 973.198, an inmate who is serving a sentence imposed under s. 973.01 for a crime other than a Class B felony 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. If an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this subsection.(b) Any of the following is a ground for a petition under par. (a): 1. The inmate's conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs since he or she was sentenced.3. A change in law or procedure related to sentencing or revocation of extended supervision effective after the inmate was sentenced that would have resulted in a shorter term of confinement in prison or, if the inmate was returned to prison upon revocation of extended supervision, a shorter period of confinement in prison upon revocation, if the change had been applicable when the inmate was sentenced.4. The inmate is subject to a sentence of confinement in another state or the inmate is in the United States illegally and may be deported.5. Sentence adjustment is otherwise in the interests of justice.(c) Upon receipt of a petition filed under par. (a), the sentencing court may deny the petition or hold the petition for further consideration. If the court holds the petition for further consideration, the court shall notify the district attorney of the inmate's petition. If the district attorney objects to adjustment of the inmate's sentence within 45 days of receiving notification under this paragraph, the court shall deny the inmate's petition.(d) If the sentence for which the inmate seeks adjustment is for an offense under s. 940.225(2) or (3), 948.02(2), 948.08, or 948.085, and the district attorney does not object to the petition within 10 days of receiving notice under par. (c), the district attorney shall notify the victim, as defined under s. 950.02(4), of the inmate's petition. The notice to the victim shall include information on the sentence adjustment petition process under this subsection, including information on how to object to the inmate's petition. If the victim objects to adjustment of the inmate's sentence within 45 days of the date on which the district attorney received notice under par. (c), the court shall deny the inmate's petition.(e) Notwithstanding the confidentiality of victim address information obtained under s. 302.113(9g) (g) 3, a district attorney who is required to send notice to a victim under par. (d) may obtain from the clerk of the circuit court victim address information that the victim provided to the clerk under s. 302.113(9g) (g) 3(f) If the sentencing court receives no objection to sentence adjustment from the district attorney under par. (c) or the victim under par. (d) and the court determines that sentence adjustment is in the public interest, the court may adjust the inmate's sentence as provided under par. (g). The court shall include in the record written reasons for any sentence adjustment granted under this subsection.(g) Except as provided under par. (h), the only sentence adjustments that a court may make under this subsection are as follows: 1. If the inmate is serving the term of confinement in prison portion of the sentence, a reduction in the term of confinement in prison by the amount of time remaining in the term of confinement in prison portion of the sentence, less up to 30 days, and a corresponding increase in the term of extended supervision.2. If the inmate is confined in prison upon revocation of extended supervision, a reduction in the amount of time remaining in the period of confinement in prison imposed upon revocation, less up to 30 days, and a corresponding increase in the term of extended supervision.(h)1. If the court adjusts a sentence under par. (g) on the basis of a change in law or procedure as provided under par. (b) 3. and the total sentence length of the adjusted sentence is greater than the maximum sentence length that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced, the court may reduce the length of the term of extended supervision so that the total sentence length does not exceed the maximum sentence length that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced.2. If the court adjusts a sentence under par. (g) on the basis of a change in law or procedure as provided under par. (b) 3. and the adjusted term of extended supervision is greater than the maximum term of extended supervision that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced, the court may reduce the length of the term of extended supervision so that the term of extended supervision does not exceed the maximum term of extended supervision that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced.(i) An inmate may submit only one petition under this subsection for each sentence imposed under s. 973.01.Amended by Acts 2013 ch, 168,s 17, eff. 3/29/2014.2001 a. 109; 2005 a. 253, 277; 2007 a. 97; 2009 a. 28; 2011 a. 38, 258.The correct cross-reference is shown in brackets. Corrective legislation is pending.
This section is a remedy that provides the procedure for judicial review of a sentence when the law relating to sentencing changes and is an adequate remedy to address the circumstances resulting from the reduction in penalties under the 2001 Act 109 revisions to the sentencing laws. State v. Trujillo, 2005 WI 45, 279 Wis. 2d 712, 694 N.W.2d 933, 03-1463. Sub. (1g) sets forth the "applicable percentage" of the term of initial confinement a person must serve before being eligible for sentence adjustment utilizing the felony classification scheme adopted in 2001 Act 109 and does not indicate how to calculate the "applicable percentage" for a sentence under the scheme adopted in1997 Act 283. This problem is remedied by applying the Act 109 felony classification under s. 939.50 to persons sentenced under Act 283 for the limited purpose of determining the applicable percentage of a term of initial confinement in a petition for sentence adjustment. State v. Tucker, 2005 WI 46, 279 Wis. 2d 697, 694 N.W.2d 926, 03-1276. Two concurring/dissenting opinions joined in by the same 4 justices, read together, hold that, "shall" in the last sentence of sub. (1r) (c) is directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under s. 973.195. The circuit court must exercise its discretion by weighing the appropriate factors under sub. (1r) (b) 1. when the court reaches its decision on sentence adjustment. State v. Stenklyft, 2005 WI 71, 281 Wis. 2d 484, 697 N.W.2d 452, 03-1959. Sub. (1r) clearly states that "if an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this subsection." There is no alternative interpretation; multiple sentences are to be considered separately for the purpose of sentence adjustment. State v. Polar, 2014 WI App 15, 352 Wis. 2d 452, 842 N.W.2d 531, 13-1433. A person serving an enhanced misdemeanor prison term imposed when a defendant is convicted of a misdemeanor and is subject to penalty enhancement, such that a bifurcated sentence under s. 973.01(1) is a possibility and the court actually chooses to impose prison time, is eligible for sentence adjustment under this section. Because the "applicable percentage" for Class I felonies is 75 percent, and because 75 percent is the lowest "applicable percentage" specified by the legislature, the most reasonable assumption is that the legislature intended that 75 percent applies to enhanced misdemeanants. State v. Anderson, 2015 WI App 92, 366 Wis. 2d 147, 873 N.W.2d 82, 14-0982. The Pendulum Swings: No More Early Release. Brennan. Wis. Law. Sept. 2011.