Section 302.113. Release to extended supervision for felony offenders not serving life sentences.

 

(1)  An inmate is subject to this section if he or she is serving a bifurcated sentence imposed under s. 973.01 .

(2)  Except as provided in subs. (3) and (9) , an inmate subject to this section is entitled to release to extended supervision after he or she has served the term of confinement in prison portion of the sentence imposed under s. 973.01 , as modified by the sentencing court under sub. (9g) or s. 302.045 (3m) (b) 1. , 302.05 (3) (c) 2. a. , 973.195 (1r) , or 973.198 , if applicable.

(3)  

(a) The warden or superintendent shall keep a record of the conduct of each inmate subject to this section, specifying each infraction of the rules. If an inmate subject to this section violates any regulation of the prison or refuses or neglects to perform required or assigned duties, the department may extend the term of confinement in prison portion of the inmate's bifurcated sentence as follows:

1. Ten days for the first offense.

2. Twenty days for the 2nd offense.

3. Forty days for the 3rd or each subsequent offense.

(b) In addition to the sanctions under par. (a) , if an inmate subject to this section is placed in adjustment, program or controlled segregation status, the department may extend his or her term of confinement in prison portion of the bifurcated sentence by a number of days equal to 50 percent of the number of days spent in segregation status. In administering this paragraph, the department shall use the definition of adjustment, program or controlled segregation status under departmental rules in effect at the time an inmate is placed in that status.

(bm) An inmate subject to this section who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall have his or her term of confinement extended by the number of days specified in the court order prepared under s. 807.15 (3) . Upon receiving a court order issued under s. 807.15 , the department shall recalculate the date on which the inmate to whom the order applies will be entitled to release to extended supervision and shall inform the inmate of that date.

(c) No extension of a term of confinement in prison under this subsection may require an inmate to serve more days in prison than the total length of the bifurcated sentence imposed under s. 973.01 .

(d) If the term of confinement in prison portion of a bifurcated sentence is increased under this subsection, the term of extended supervision is reduced so that the total length of the bifurcated sentence does not change.

(4)  All consecutive sentences imposed for crimes committed on or after December 31, 1999, shall be computed as one continuous sentence. The person shall serve any term of extended supervision after serving all terms of confinement in prison.

(5)  An inmate may waive entitlement to release to extended supervision if the department agrees to the waiver.

(6)  Before a person is released to extended supervision under this section, the department shall notify the municipal police department and the county sheriff for the area where the person will be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the department a written statement waiving the right to be notified. If applicable, the department shall also comply with s. 304.063 .

(7)  Any inmate released to extended supervision under this section is subject to all conditions and rules of extended supervision until the expiration of the term of extended supervision portion of the bifurcated sentence. The department may set conditions of extended supervision in addition to any conditions of extended supervision required under s. 302.116 , if applicable, or set by the court under sub. (7m) or s. 973.01 (5) if the conditions set by the department do not conflict with the court's conditions.

(7m)  

(a) Except as provided in par. (e) , a person subject to this section or the department may petition the sentencing court to modify any conditions of extended supervision set by the court.

(b) If the department files a petition under this subsection, it shall serve a copy of the petition on the person who is the subject of the petition and, if the person is represented by an attorney, on the person's attorney. If a person who is subject to this section or his or her attorney files a petition under this subsection, the person or his or her attorney shall serve a copy of the petition on the department. The court shall serve a copy of a petition filed under this section on the district attorney. The court may direct the clerk of the court to provide notice of the petition to a victim of a crime committed by the person who is the subject of the petition.

(c) The court may conduct a hearing to consider the petition. The court may grant the petition in full or in part if it determines that the modification would meet the needs of the department and the public and would be consistent with the objectives of the person's sentence.

(d) A person subject to this section or the department may appeal an order entered by the court under this subsection. The appellate court may reverse the order only if it determines that the sentencing court erroneously exercised its discretion in granting or denying the petition.

(e)

1. An inmate may not petition the court to modify the conditions of extended supervision earlier than one year before the date of the inmate's scheduled date of release to extended supervision or more than once before the inmate's release to extended supervision.

2. A person subject to this section may not petition the court to modify the conditions of extended supervision within one year after the inmate's release to extended supervision. If a person subject to this section files a petition authorized by this subsection after his or her release from confinement, the person may not file another petition until one year after the date of filing the former petition.

(7r)  A person released under this section, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of release to extended supervision. Any search conducted pursuant to this subsection shall be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. A law enforcement officer who conducts a search pursuant to this subsection shall, as soon as practicable after the search, notify the department.

(8)  Releases to extended supervision from prison shall be on the Tuesday or Wednesday preceding the date on which he or she completes the term of imprisonment.

(8m)  

(a) Every person released to extended supervision under this section remains in the legal custody of the department. If the department alleges that any condition or rule of extended supervision has been violated by the person, the department may take physical custody of the person for the investigation of the alleged violation.

(b) If a person released to extended supervision under this section signs a statement admitting a violation of a condition or rule of extended supervision, the department may, as a sanction for the violation, confine the person for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the person in a county jail under this paragraph, the department shall reimburse the county for its actual costs in confining the person from the appropriations under s. 20.410 (1) (ab) and (b) . Notwithstanding s. 302.43 , the person is not eligible to earn good time credit on any period of confinement imposed under this subsection.

(9)  

(ag) In this subsection “reviewing authority" means the division of hearings and appeals in the department of administration, upon proper notice and hearing, or the department of corrections, if the person on extended supervision waives a hearing.

(am) If a person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the reviewing authority shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence. The time remaining on the bifurcated sentence is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. The order returning a person to prison under this paragraph shall provide the person whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155 .

(b) A person who is returned to prison after revocation of extended supervision shall be incarcerated for the entire period of time specified by the order under par. (am) . The period of time specified under par. (am) may be extended in accordance with sub. (3) . If a person is returned to prison under par. (am) for a period of time that is less than the time remaining on the bifurcated sentence, the person shall be released to extended supervision after he or she has served the period of time specified by the order under par. (am) and any periods of extension imposed in accordance with sub. (3) .

(c) A person who is subsequently released to extended supervision after service of the period of time specified by the order under par. (am) is subject to all conditions and rules under sub. (7) and, if applicable, sub. (7m) until the expiration of the remaining extended supervision portion of the bifurcated sentence. The remaining extended supervision portion of the bifurcated sentence is the total length of the bifurcated sentence, less the time served by the person in confinement under the bifurcated sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the bifurcated sentence.

(d) For the purposes of pars. (am) and (c) , the amount of time a person has served in confinement before release to extended supervision and the amount of time a person has served in confinement for a revocation of extended supervision includes any extensions imposed under sub. (3) .

(e) If a hearing is to be held under par. (am) before the division of hearings and appeals in the department of administration, the hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10) .

(f) A reviewing authority may consolidate proceedings before it under par. (am) with other proceedings before that reviewing authority under par. (am) or s. 302.11 (7) (am) or 302.114 (9) (am) if all of the proceedings relate to the parole or extended supervision of the same person.

(g) In any case in which there is a hearing before the division of hearings and appeals in the department of administration concerning whether to revoke a person's extended supervision, the person on extended supervision may seek review of a decision to revoke extended supervision and the department of corrections may seek review of a decision to not revoke extended supervision. Review of a decision under this paragraph may be sought only by an action for certiorari.

(9g)  

(a) In this subsection:

1. “Extraordinary health condition" means a condition afflicting a person, such as advanced age, infirmity, or disability of the person or a need for medical treatment or services not available within a correctional institution.

2. “Program review committee" means the committee at a correctional institution that reviews the security classifications, institution assignments, and correctional programming assignments of inmates confined in the institution.

(b) An inmate who is serving a bifurcated sentence for a crime other than a Class B felony may seek modification of the bifurcated sentence in the manner specified in par. (f) if he or she meets one of the following criteria:

1. The inmate is 65 years of age or older and has served at least 5 years of the term of confinement in prison portion of the bifurcated sentence.

2. The inmate is 60 years of age or older and has served at least 10 years of the term of confinement in prison portion of the bifurcated sentence.

3. The inmate has an extraordinary health condition.

(c) An inmate who meets a criterion under par. (b) may submit a petition to the program review committee at the correctional institution in which the inmate is confined requesting a modification of the inmate's bifurcated sentence in the manner specified in par. (f) . If the inmate alleges in the petition that he or she has an extraordinary health condition, the inmate shall attach to the petition affidavits from 2 physicians setting forth a diagnosis that the inmate has an extraordinary health condition.

(cm) If, after receiving the petition under par. (c) , the program review committee determines that the public interest would be served by a modification of the inmate's bifurcated sentence in the manner provided under par. (f) , the committee shall approve the petition for referral to the sentencing court and notify the department of its approval. The department shall then refer the inmate's petition to the sentencing court and request the court to conduct a hearing on the petition. If the program review committee determines that the public interest would not be served by a modification of the inmate's bifurcated sentence in the manner specified in par. (f) , the committee shall deny the inmate's petition.

(d) When a court is notified by the department that it is referring to the court an inmate's petition for modification of the inmate's bifurcated sentence, the court shall schedule a hearing to determine whether the public interest would be served by a modification of the inmate's bifurcated sentence in the manner specified in par. (f) . The inmate and the district attorney have the right to be present at the hearing, and any victim of the inmate's crime has the right to be present at the hearing and to provide a statement concerning the modification of the inmate's bifurcated sentence. The court shall order such notice of the hearing date as it considers adequate to be given to the department, the inmate, the attorney representing the inmate, if applicable, and the district attorney. Victim notification shall be provided as specified under par. (g) .

(e) At a hearing scheduled under par. (d) , the inmate has the burden of proving by the greater weight of the credible evidence that a modification of the bifurcated sentence in the manner specified in par. (f) would serve the public interest. If the inmate proves that a modification of the bifurcated sentence in the manner specified in par. (f) would serve the public interest, the court shall modify the inmate's bifurcated sentence in that manner. If the inmate does not prove that a modification of the bifurcated sentence in the manner specified in par. (f) would serve the public interest, the court shall deny the inmate's petition for modification of the bifurcated sentence.

(f) A court may modify an inmate's bifurcated sentence under this section only as follows:

1. The court shall reduce the term of confinement in prison portion of the inmate's bifurcated sentence in a manner that provides for the release of the inmate to extended supervision within 30 days after the date on which the court issues its order modifying the bifurcated sentence.

2. The court shall lengthen the term of extended supervision imposed so that the total length of the bifurcated sentence originally imposed does not change.

(g)

1. In this paragraph, “ victim" has the meaning given in s. 950.02 (4) .

2. When a court schedules a hearing under par. (d) , the clerk of the circuit court shall send a notice of hearing to the victim of the crime committed by the inmate, if the victim has submitted a card under subd. 3. requesting notification. The notice shall inform the victim that he or she may appear at the hearing scheduled under par. (d) and shall inform the victim of the manner in which he or she may provide a statement concerning the modification of the inmate's bifurcated sentence in the manner provided in par. (f) . The clerk of the circuit court shall make a reasonable attempt to send the notice of hearing to the last-known address of the inmate's victim, postmarked at least 10 days before the date of the hearing.

3. The director of state courts shall design and prepare cards for a victim to send to the clerk of the circuit court for the county in which the inmate was convicted and sentenced. The cards shall have space for a victim to provide his or her name and address, the name of the applicable inmate, and any other information that the director of state courts determines is necessary. The director of state courts shall provide the cards, without charge, to clerks of circuit court. Clerks of circuit court shall provide the cards, without charge, to victims. Victims may send completed cards to the clerk of the circuit court for the county in which the inmate was convicted and sentenced. All court records or portions of records that relate to mailing addresses of victims are not subject to inspection or copying under s. 19.35 (1) .

(h) An inmate may appeal a court's decision to deny the inmate's petition for modification of his or her bifurcated sentence. The state may appeal a court's decision to grant an inmate's petition for a modification of the inmate's bifurcated sentence. In an appeal under this paragraph, the appellate court may reverse a decision granting or denying a petition for modification of a bifurcated sentence only if it determines that the sentencing court erroneously exercised its discretion in granting or denying the petition.

(i) If the program review committee denies an inmate's petition under par. (cm) , the inmate may not file another petition within one year after the date of the program review committee's denial. If the program review committee approves an inmate's petition for referral to the sentencing court under par. (cm) but the sentencing court denies the petition, the inmate may not file another petition under par. (cm) within one year after the date of the court's decision.

(j) An inmate eligible to seek modification of his or her bifurcated sentence under this subsection has a right to be represented by counsel in proceedings under this subsection. An inmate, or the department on the inmate's behalf, may apply to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (jm) before or after the filing of a petition with the program review committee under par. (c) . If an inmate whose petition has been referred to the court under par. (cm) is without counsel, the court shall refer the matter to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (jm) .

(10)  The department may promulgate rules establishing guidelines and criteria for the exercise of discretion under this section.

1997 a. 283 ; 2001 a. 16 , 109 ; 2003 a. 33 ; 2005 a. 42 ; 2009 a. 28 , 276 ; 2011 a. 38 ; 2013 a. 79 . Reconfinement under sub. (9) (am) is subject to review under s. 809.30. State v. Swiams, 2004 WI App 217 , 277 Wis. 2d 400 , 690 N.W.2d 452 , 04-0299 . A hearing to determine the length of reconfinement under sub. (9) is akin to sentencing. Both are reviewed by appellate courts to determine whether the court erroneously exercised its discretion. State v. Brown, 2006 WI 131 , 298 Wis. 2d 37 , 725 N.W.2d 262 , 05-0584 . While the recommendation of the department of corrections may be helpful and should be considered, the trial court owes no deference to the department's sentencing recommendation after revocation of an offender's extended supervision. The court should also consider the nature and severity of the original offense, the client's institutional conduct record, and the client's conduct and the nature of the violation of terms and conditions during extended supervision, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity. The court should impose the minimum amount of confinement consistent with the protection of the public, the gravity of the offense, and the defendant's rehabilitative needs. State v. Brown, 2006 WI 131 , 298 Wis. 2d 37 , 725 N.W.2d 262 , 05-0584 . The department of corrections and the division of hearings and appeals had jurisdiction to revoke extended supervision for a violation of the rules of supervision when an inmate was erroneously released to supervision while serving a bifurcated sentence and the initial term of incarceration had not been completed. Rupinski v. Smith, 2007 WI App 4 , 297 Wis. 2d 749 , 728 N.W.2d 1 , 05-1760 . Under Brown the defendant has a right to allocution at a reconfinement hearing before the court pronounces its decision. State v. Hines, 2007 WI App 39 , 300 Wis. 2d 485 , 730 N.W.2d 434 , 06-0846 . When a person is serving consecutive indeterminate and determinate sentences, extended supervision and parole are to be treated as one continuous period, and both may be revoked upon violation of the conditions imposed. Thomas v. Schwarz, 2007 WI 57 , 300 Wis. 2d 381 , 732 N.W.2d 1 , 05-1487 . Sub. (9) (am) governs reconfinement procedure and sets forth the limits of a court's exercisable discretion. It does not provide discretion for the court to consider eligibility for the challenge incarceration program or the earned release program under s. 973.01 (3g) and (3m). State v. Hall, 2007 WI App 168 , 304 Wis. 2d 504 , 737 N.W.2d 13 , 06-1439 . The original sentencing transcript can be an important source of information in a reconfinement hearing and is generally readily available, but a circuit court is not required to read the original sentencing transcript in every case. Rather, the court should be familiar with the case and can gain the requisite familiarity in a number of ways that may differ from case to case. The court must decide which factors are relevant for consideration in any given case and use its discretion as to how it ascertains the information needed to consider the relevant factors. State v. Walker, 2008 WI 34 , 308 Wis. 2d 666 , 747 N.W.2d 673 , 06-0562 . Sections 302.113 (4), 973.01, and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences. State v. Collins, 2008 WI App 163 , 314 Wis. 2d 653 , 760 N.W.2d 438 , 07-2580 . Sub. (9) (b) keeps intact the bifurcated-sentence scheme established by s. 973.01. It indubitably follows that the reconfinement court has the same authority to impose conditions of extended supervision that follows the period of reconfinement as an original sentencing court has to impose conditions on the extended supervision that follows the period of initial confinement. State v. Harris, 2008 WI App 189 , 763 Wis. 2d 206 , 763 N.W.2d 206 , 08-0778 . When a person waives a revocation hearing, the department of corrections (DOC) is required by sub. (9) (at) to make a recommendation to the court concerning the period of time the person should be returned to prison. The recommendation is more appropriately analogized to a presentence investigation report (PSI) at the original sentencing than a plea agreement. The securing of a PSI is solely within the judicial function to assist the judge in selecting an appropriate sentence. The DOC does not function as an agent of either the state or the defense in fulfilling its PSI role under this section and the prosecutor is not bound by a recommendation from the DOC. State v. Washington, 2009 WI App 148 , 321 Wis. 2d 508 , 775 N.W.2d 535 , 08-2359 . There is no indication Truth-in-Sentencing altered the substantive nature of the reconfinement decision. Rather, as before Truth-in-Sentencing, the reconfinement determination is part of the revocation process and therefore not a criminal proceeding. State v. Brimer, 2010 WI App 57 , 324 Wis. 2d 408 , 781 N.W.2d 726 , 09-0817 . There is no authority under sub. (9) (am) or elsewhere for a defendant to use his or her revocation and resultant reconfinement hearing as a vehicle for reducing the overall sentence imposed. A challenge to a post-revocation sentence does not bring the original judgment of conviction before the court. State v. Harris, 2012 WI App 79 , 343 Wis. 2d 479 , 819 N.W.2d 350 , 11-0983 . Treating all sentences as one as required by ss. 302.11 (3) and 302.113 (4) simply means that a defendant must serve all of his or her initial confinement at once, and must then serve all of the extended supervision at once. State v. Polar, 2014 WI App 15 , 352 Wis. 2d 452 , 842 N.W.2d 531 , 13-1433 . 2011 Wis. Act 38 repealed or modified ss. 302.113 (2) (b) and 304.06 (1) (bg) 1., 2009 stats., which afforded certain prisoners convicted of Class F to Class I felonies an opportunity to earn early release from confinement, resulting in the petitioner being required to serve the full term of the initial confinement portion of his sentence. Because the law in effect when he was convicted afforded him the opportunity to be released earlier and the 2011 Act 38 modifications resulted in a significant risk of prolonging the defendant's incarceration, the portions of Act 38 that eliminated the defendant's eligibility for early release under the 2009 law violated the ex post facto clauses when applied to the defendant's offenses. Singh v. Kemper, 2014 WI App 43 , 353 Wis. 2d 520 , 846 N.W.2d 820 , 13-1724 . Singh v. Kemper, 2014 WI App 43 affirmed in part, reversed in part by Singh v. Kemper, 2016 WI 67 , ___ Wis. 2d ___, 883 N.W.2d 86 , 13-1724 . Taking Reconfinement Hearings Seriously. Bizzaro. Wis. Law. Apr. 2007.