DocketNumber: No. 2012AP225-CR
Citation Numbers: 345 Wis. 2d 342, 2012 WI App 138
Judges: Brown, Gundrum, Reilly
Filed Date: 11/21/2012
Status: Precedential
Modified Date: 9/9/2022
¶ 1. The defendant, Tony Lalicata, argues that the trial court and his own trial counsel erred by failing to recognize that he was potentially eligible for a stayed sentence and probation under Wis. Stat. § 973.09(l)(a) (2009-10),
¶ 2. Lalicata was convicted of violating Wis. Stat. § 948.02(l)(b), first-degree sexual assault of a child under the age of twelve, in March 2011. At the sentencing hearing, the trial court and both attorneys believed that under Wis. Stat. § 939.616(lr), conviction of this offense triggered a mandatory minimum sentence of twenty-five years of imprisonment. While a number of family members, including the victim's grandfather, urged leniency, the court concluded it had little discretion and ruled as follows:
This Court sees absolutely no reason to impose more than the mandatory minimum in [this] case. You have got no record, no issues. [It] doesn't matter [that] half the people in the courtroom think you didn't do it. I need to honor the verdict of the jury, so I'm going to assume you did it. I assume you need to be punished. I assume you need rehabilitation, and the legislature has determined the minimum period for that is 25 years.
¶ 3. Lalicata brought a postconviction motion, seeking a new sentencing hearing on grounds that his trial counsel was ineffective for failing to realize that the court could impose but stay the mandatory minimum sentence and give probation instead.
I am going to conclude that, under Wisconsin law, probation is not an alternative for a violation of [Wis.*345 Stat. §] 948.02(l)(b), and I'm going to rely on the plain language of [Wis. Stat. §] 939.616[lr] that says that if a person is convicted of a violation of Section 948.02(l)(b), the Court, quote, shall, end of quote, impose a bifurcated sentence under Section 973.01.
¶ 4. On appeal, Lalicata renews this argument. He asserts that because the legislature did not expressly prohibit probation for a violation of Wis. Stat. § 948.02(l)(b), probation is permitted. Lalicata's argument begins with language in the probation statute stating that "[e]xcept [for life imprisonment sentences] or if probation is prohibited for a particular offense by statute . . . the court, by order, may withhold sentence or impose sentence . . . and stay its execution, and in either case place the person on probation." Wis. Stat. § 973.09(l)(a).
¶ 5. He then cites Wis. Stat. § 939.616(lr), which states that "[i]f a person is convicted of a violation of [Wis. Stat. §] 948.02(l)(b). . . the court shall impose a bifurcated sentence under [Wis. Stat. §] 973.01. The term of confinement in prison portion of the bifurcated sentence shall be at least 25 years." He notes that nowhere in this statute does the legislature expressly prohibit probation. In fact, probation is not even mentioned.
¶ 6. He next contrasts this circumstance with two other mandatory minimum sentence statutes which expressly provide that "[t]he court may not place the defendant on probation." These statutes are Wis. Stat. §§ 939.618(2)(a) and 939.619(2). He cites these two statutes as proof that the legislature knows how to prohibit probation when it wishes. He then reasons that, because nowhere in Wis. Stat. § 939.616(lr) has the legislature expressly prohibited probation, the legislature must have determined that probation is an
¶ 7. The State responds with a well-established series of cases, albeit in a different context (presumptive minimum sentences for certain traffic offenses), which distinguished between the verbs "may" and "shall," and held that probation was never available if the legislature directed that a violator "shall be imprisoned" for a certain minimum period. See State v. Duffy, 54 Wis. 2d 61, 65, 194 N.W.2d 624 (1972), superseded by statute as stated in State v. Eckola, 2001 WI App 295, ¶ 10, 249 Wis. 2d 276, 638 N.W.2d 903; State v. McKenzie, 139 Wis. 2d 171, 176-77, 407 N.W.2d 274 (Ct. App. 1987); State v. Meddaugh, 148 Wis. 2d 204, 208-10, 435 N.W.2d 269 (Ct. App. 1988), superseded by statute as stated in Eckola, 249 Wis. 2d 276, ¶ 10. The State also cites Wis. Stat. § 973.09(1)(d), which was enacted after this line of traffic offense cases, and which expressly authorizes probation for such offenses on the condition that "the person be confined . . . for at least [the] mandatory or presumptive minimum period [required for that offense]." Id. The State asserts that, since § 973.09 makes no provision for probation in cases of mandatory sentences greater than one year, probation remains unavailable under the logic of the cases that predate § 973.09(1)(d).
¶ 8. Interpretation of a statute is a question of law that we review de novo. State v. Stenklyft, 2005 WI 71, ¶ 7, 281 Wis. 2d 484, 697 N.W.2d 769. We begin with the pertinent statutory language, reading it "in the context in which it is used; not in isolation but as a part of a whole; in relation to the language surrounding or closely-related statutes; and reasonably, to avoid absurd
¶ 9. As already stated, the probation statute, Wis. Stat. § 973.09(l)(a), provides that a court "may withhold sentence or impose sentence. . . and stay its execution, and in either case place the person on probation," except that probation is not available if the sentence is a life sentence or "if probation is prohibited for a particular offense by statute." Sec. 973.09(l)(a). Thus, we must resolve whether the legislature "prohibited" probation for the offense of first-degree child sexual assault.
¶ 10. The sentencing statute for first-degree child sexual assault is in Wis. Stat. § 939.616, which is the first in a series of related criminal statutes, all of which direct courts to impose minimum sentences for particular crimes. This series of statutes constitutes "surrounding or closely-related statutes," see Kalal, 271 Wis. 2d 633, ¶ 46, for § 939.616 and provides proper context for interpreting whether that statute "prohibits" probation.
¶ 11. Wisconsin Stat. § 939.616 is entitled "Mandatory minimum sentence for child sex offenses." Sec. 939.616. The relevant portion of the statute provides that for certain offenses, including first-degree sexual assault of a child under age twelve, the minimum term of confinement in prison portion of the sentence for the listed crimes "shall be at least 25 years." Sec. 939.616(lr). Though Lalicata is correct that the words "probation" and "prohibited" do not appear in this statute, an ordinary reading of the statement that the "term of confinement in prison portion of the bifurcated sentence shall be at least 25 years" is not consistent with allowing probation. See Duffy, 54 Wis. 2d at 65 &
¶ 12. The very next statute, Wis. Stat. § 939.617, is entitled, "Minimum sentence for certain child sex offenses." This title contrasts with the prior statute's title because the word "mandatory" is omitted and the statute is directed at "certain" child sex offenses. What's more, this statute expressly allows probation for certain crimes
¶ 13. The last two statutes in the series, Wis. Stat. § 939.618 and 939.619, are both entitled "Mandatory minimum sentence" (for "repeat serious sex crimes" and "repeat serious violent crimes," respectively). (Emphasis added). Each one provides in relevant part that "[t]he term of confinement in prison .. . may not be less than 3 years and 6 months" for the specified crimes. Secs. 939.618(2)(a) and 939.619(2). Also, as Lalicata emphasizes, in these two statutes the legislature ex
¶ 14. Reading this series of minimum sentence statutes as a whole, we are convinced that by labeling Wis. Stat. § 939.616 a "mandatory minimum sentence" statute and stating that "the court shall impose a bifurcated sentence" and that "[t]he term of confinement in prison portion of the bifurcated sentence shall be at least 25 years," § 939.616(lr), the legislature has clearly prohibited probation. This is the ordinary interpretation of such language. Also, in the very next statute, the legislature removed the word "mandatory" from the title and expressly stated that for "certain child sex offenses" probation was sometimes available. It does not make sense that, as Lalicata claims, the legislature at the same time intended to imply, silently, in the immediately preceding statute, that probation is likewise available for the more serious crime of first-degree child sexual assault. While it is true that the legislative intent would be even clearer if § 939.616 contained the express language that is included in Wis. Stat. §§ 939.618 and 939.619, i.e., "[t]he court may not place the defendant on probation," nothing in Wis. Stat. § 973.09(l)(a) makes such language the sole way to "prohibit" probation. We conclude instead that § 939.616(lr) unambiguously prohibits probation, within the meaning of § 973.09, when it directs that the court "shall" impose a term of confinement of at least twenty-five years.
¶ 15. Our interpretation of the language of Wis. Stat. § 939.616(1r) is confirmed by Wis. Stat. § 973.09. There, in providing for the option for probation, the
¶ 16. In short, there is no way to reconcile the option to "withhold" sentence in Wis. Stat. § 973.09(1) with the mandate that the court "shall impose" sentence in Wis. Stat. § 939.616(1r). We reject Lalicata's implausible reading, that the "impose and stay" option is available when, by Lalicata's logical progression, withholding a sentence is not available.
¶ 17. The legislature meant what it said: first-degree sexual assault carries a mandatory minimum sentence of twenty-five years in prison. Probation was never an option in Lalicata's sentencing.
By the Court. — Judgment and order affirmed.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Lalicata also argued in that motion that his trial counsel was ineffective in failing to meaningfully inform him of a plea offer from the prosecution, but the trial court rejected that argument and Lalicata does not raise it on appeal.
Specifically, child sexual exploitation, Wis. Stat. § 948.05, use of a computer to facilitate a child sex crime, Wis. Stat. § 948.075, and possession of child pornography, Wis. Stat. § 948.12.