author: CANE, C.J.

text:
    In re the Commitment of Steven J. Burgess: State of Wisconsin, Petitioner-Respondent, v. Steven J. Burgess, Respondent-Appellant.

    Court of Appeals

      No. 00-3074.

      Submitted on briefs September 23, 2002.

    Decided October 16, 2002.

    2002 WI App 264
    (Also reported in 654 N.W.2d 81.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender, and Jefren E. Olsen, assistant state public defender of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Diane M. Welsh, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 1-14-03.

   CANE, C.J.

¶ 1. Steven Burgess appeals a judgment entered on a jury verdict finding him a sexually violent person and an order committing him to institutional care pursuant to Wis. Stat. ch. 980. Burgess argues (1) the trial court had no jurisdiction to conduct the commitment proceedings because he is a Native American and he committed the underlying act on the reservation where he lived; (2) the commitment violated due process because there was insufficient evidence to support the jury's finding he was sexually violent; (3) the jury instructions did not reflect the law; (4) he is entitled to a new trial because the real issues in his case were not fully and fairly tried; (5) the trial court should have granted him the same confidentiality given to persons being committed under Wis. Stat. ch. 51; and (6) recent changes to ch. 980 violate equal protection. We determine the trial court had jurisdiction to conduct Burgess's commitment proceeding and there is sufficient evidence to support the jury's verdict. Further, we conclude the jury instructions were proper in light of our supreme court's recent decision in State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784. We also determine Burgess is not entitled to a new trial and the trial court was not required to conduct confidential proceedings. Finally, we conclude the changes to ch. 980 do not violate equal protection based on State v. Williams, 2001 WI App 263, 249 Wis. 2d 1, 637 N.W.2d 791. Accordingly, we affirm the judgment and order.

BACKGROUND

¶ 2. The State sought to commit Burgess pursuant to Wis. Stat. ch. 980 in November 1998. Burgess had been convicted of second-degree sexual assault stemming from an incident that occurred on the Lac du Flambeau Reservation in Vilas County. Burgess is a member of the Lac du Flambeau Band of the Lake Superior Chippewa and was living on the reservation at the time of the offense.

¶ 3. Burgess filed several pretrial motions. One requested dismissal on the Wis. Stat. § ch. 980 petition, contending the court did not have jurisdiction because Burgess was a member of a Native American tribe and committed the underlying act while on the reservation. The trial court determined it had jurisdiction based on Public Law 280 and case law regarding state jurisdiction over reservation Native Americans. Burgess also requested the court close the proceedings and limit access to court records to the parties. The court also denied this motion because it could not find a legal basis to do so. Finally, Burgess requested a modification to the pattern jury instruction to reflect what he believed was constitutionally required by the United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346 (1997). The court, satisfied the instruction reflected the law, denied this motion as well.

¶ 4. At the August 2000 trial, the State presented the testimony of two psychologists, Linda Nauth and Sheila Fields. Nauth, a staff psychologist at Fox Lake Correctional Institution, conducted Burgess's "end of confinement" review to determine if the State should pursue a Wis. Stat. ch. 980 commitment. She diagnosed Burgess with pedophilia, alcohol dependence and antisocial personality disorder. She testified his pedophilia predisposed him to engage in acts of sexual violence and his alcohol dependence lowered his inhibitions and made it more difficult to control his pedophilic impulses. In addition, she explained Burgess's antisocial personality disorder further aggravated his pedophilia. To help her evaluate Burgess's risk of reoffense, she completed an actuarial test, the Rapid Risk Assessment of Sex Offender Recidivism (risk assessment). Nauth said Burgess's score showed he had an eighty percent chance of reconviction within ten years. She concluded Burgess's disorders, along with his score on the risk assessment, indicated a substantial probability that Burgess would engage in acts of sexual violence.

¶ 5. Fields, a psychologist for the state, testified similarly, saying Burgess's antisocial personality disorder and pedophilia made it substantially probable he would commit a sexually violent act. She performed a more thorough evaluation than Nauth, basing her conclusion on numerous sources, including a review of Burgess's records, an interview with Burgess, and actuarial tests. Specifically, she testified Burgess's score on the risk assessment suggested a seventy-three percent chance of reconviction within ten years. She also said the revised Minnesota Sex Offender Screening Tool showed Burgess had a very high risk of reoffense. In addition, she determined Burgess scored in the sixty-seventh percentile on the Hare Psychopathy Checklist. Fields explained the Hare test was not an actuarial instrument, but rather measured a person's level of psychopathy. Burgess's score, according to Fields, was very high. Finally, Fields testified Burgess also measured as a high risk on two other actuarial instruments, the Violence Risk Appraisal Guide and the Static-99. Fields concluded these results, combined with Burgess's mental disorders, led her to believe Burgess had a high risk of reoffending.

¶ 6. On his cross-examination of Fields, Burgess's attorney attacked the reliability of the actuarial tests and their predictive ability. Fields admitted that simply because a person has pedophilia does not mean he or she is unable to control his or her behavior. In response to questions about Burgess's mental culpability, Fields said she believed Burgess knew the difference between right and wrong and was able to conform his conduct to the requirements of the law.

¶ 7. Burgess presented the testimony of a psychologist, Charles Lodi, and a therapist, Lloyd Sinclair. Lodi testified Burgess had several mental disorders that predispose him to acts of sexual violence, including pedophilia and antisocial personality disorder. However, Lodi determined Burgess had only a moderate risk level of committing future sexually violent acts, and did not meet Wis. Stat. ch. 980's "substantial probability" requirement. Lodi based this decision on his use of the Static-99 actuarial test, which he said more accurately-reflected Burgess's reoffense risk than some of the tests Fields and Nauth performed. Sinclair is a private therapist specializing in sex offender treatment who works as a consultant to the Department of Corrections. His testimony mostly recounted Burgess's treatment history while in prison. He concluded Burgess presented a moderate reoffense risk.

¶ 8. The jury found Burgess a sexually violent person and the trial court ordered commitment. Burgess appeals.

DISCUSSION

1. Jurisdiction

¶ 9. Burgess first argues the trial court erred when it determined it had jurisdiction over him. Burgess contends the State's jurisdiction in Wis. Stat. ch. 980 cases does not extend to Native Americans who are members of a tribe, residents of their tribe's reservation and who committed the underlying act on that reservation. Whether a court has jurisdiction presents an issue of law, which we review de novo. State v. Webster, 196 Wis. 2d 308, 316, 538 N.W.2d 810 (Ct. App. 1995). Prior to trial, the parties stipulated to Burgess's membership in the Lac du Flambeau Band of the Lake Superior Chippewa, his residence on the tribe's reservation, and the underlying act's occurrence on the reservation. Our only inquiry is whether the law governing state regulation of Native American affairs grants Wisconsin jurisdiction over ch. 980 proceedings involving Native Americans living on reservations. We conclude it does.

¶ 10. Before examining these laws, however, we first reject the State's argument that jurisdiction exists because Burgess was in a Wisconsin prison when the State filed the commitment petition. The State argues the commitment is based on Burgess's mental disorder and dangerousness and jurisdiction exists because that determination was made when Burgess was in the State's custody. We disagree.

¶ 11. The State's position is contrary to Wis. Stat. § 980.105, which establishes the procedures a court must follow to determine a person's residence for the purpose of a ch. 980 commitment. Section 980.105 provides:

Determination of county of residence. The court shall determine a person's county of residence for the purposes of this chapter by doing all of the following:
(1) The court shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.
(2) The court shall apply the criteria for consideration of residence and physical presence under sub. (1) to the facts that existed on the date that the person committed the sexually violent offense that resulted in the sentence, placement or commitment that was in effect when the petition was filed under s. 980.02.

¶ 12. According to Wis. Stat. § 980.105, a person's county of residence shall be determined based on the facts that existed on the date of the underlying offense. Here, the parties stipulated that Burgess resided on the reservation when he committed the underlying offense and there is no suggestion Burgess intended to do anything but continue living on the reservation. As a result, the reservation should be considered his residence, and the trial court did not have jurisdiction merely because Burgess was in a Wisconsin prison at the time the petition was filed.

¶ 13. We now turn to Burgess's claim the court lacked jurisdiction because he is a Native American living on a reservation. Two related barriers exist to a state's exercise of jurisdiction over Native Americans on a reservation. First, federal law may preempt the exercise of authority. Second, jurisdiction may infringe on the right of Native Americans to establish and maintain tribal self-government. County of Vilas v. Chapman, 122 Wis. 2d 211, 214, 361 N.W.2d 699 (1985). Either barrier, standing alone, can be a sufficient basis for holding state law inapplicable to Native Americans on reservations. Id.

¶ 14. Burgess suggests both of these barriers prevent Wisconsin from exercising jurisdiction. He first criticizes the analysis used in Chapman, and relied upon by the trial court, to resolve the "tribal self-government" barrier to state jurisdiction. That analysis was based on Rice v. Rehner, 463 U.S. 713 (1983), which was the United States Supreme Court's most recent case concerning state jurisdiction over matters involving Native Americans at the time the supreme court decided Chapman. See Chapman, 122 Wis. 2d at 214. Burgess argues the Rice analysis was an aberration and was quickly abandoned by the Court in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209 (1987), and thus, Wisconsin's approach to Native American jurisdiction in terms of the "tradition of self-government" analysis is wrong.

¶ 15. Burgess is essentially asking us to review our supreme court's decisions in light of subsequent United States Supreme Court decisions. When we are presented with a United States Supreme Court decision regarding federal law that conflicts with an earlier decision of our own supreme court, we are required to adhere to the United States Supreme Court decision, even if it means deviating from our. supreme court. State v. Jennings, 2002 WI 44, ¶¶ 3, 19, 252 Wis. 2d 228, 647 N.W.2d 142. We need not undertake this analysis, however, because we determine Public Law 280 grants Wisconsin jurisdiction over tribal Native Americans in Wis. Stat. ch. 980 proceedings.

¶ 16. Tribal sovereignty is dependent on and subordinate to only the Federal Government, not the states. Cabazon, 480 U.S. at 207. Congress may, however, grant states the right to apply their laws to Native Americans on reservations. Id. Congress has given several states, including Wisconsin, jurisdiction over criminal offenses and some civil causes involving Native Americans on reservations through Public Law 280, 18 U.S.C. § 1162, 28 U.S.C. § 1360. We must therefore determine whether Wis. Stat. ch. 980 is within the purview of Public Law 280. As indicated, we determine it is.

¶ 17. As noted, Public Law 280 grants Wisconsin jurisdiction over all criminal and some civil matters involving Native Americans living on reservations. Wisconsin Stat. ch. 980 is not a criminal or punitive law. State v. Carpenter, 197 Wis. 2d 252, 271-72, 541 N.W.2d 105 (1995). In order for the state to exercise jurisdiction over ch. 980 petitions involving Native Americans, ch. 980 must fit within Public Law 280's grant of civil jurisdiction. Public Law 280 limits civil jurisdiction to:

(a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State.

28 U.S.C. § 1360.

¶ 18. The primary grant of Public Law 280's civil jurisdiction is over private litigation involving reservation Native Americans in state court. Bryan v. Itasca County, 426 U.S. 378, 385 (1976). In Bryan, the Court said a fair reading of Public Law 280 was that it never intended "civil laws" to mean all state noncriminal laws, but rather those having to do with private rights, such as contract, tort, divorce, insanity, and descent. Id. at 384 n.10. Congress did not intend to include laws regarding taxation or granting franchises. Id. In Gaba-zon, the Court further described Public Law 280's civil jurisdiction by distinguishing civil laws as prohibitory or regulatory. Cabazon, 480 U.S. at 209-11. Although it did not establish a bright-line rule, the Court held prohibitory civil laws are generally within Public Law 280 jurisdiction, while regulatory laws are not. Id. at 209. A statute is regulatory if the state generally allows the conduct subject to regulation. See id. A statute is prohibitory if the state does not generally allow the conduct. See id. Put another way, the question is whether the conduct in question violates the state's public policy. Id.; see also State ex rel. Lykins v. Stein-horst, 197 Wis. 2d 875, 886-88, 541 N.W.2d 234 (Ct. App. 1995) (citing and applying Cabazon prohibitory/regulatory distinction).

¶ 19. From this background, we determine Wis. Stat. ch. 980 falls under Public Law 280's grant of civil jurisdiction. Chapter. 980 seeks, in part, to prevent sexual violence through treatment. Sexual violence obviously violates public policy; the State does not permit it under any circumstances. Further, we note the Bryan Court's comment that Public Law 280 grants jurisdiction over insanity proceedings. Bryan, 426 U.S. at 384 n.10. While ch. 980 does not, strictly speaking, address insanity, it involves involuntary commitment based on mental disorders, much like insanity and other commitment proceedings. See State v. Post, 197 Wis. 2d 279, 318-19, 541 N.W.2d 115 (1995) (persons committed under ch. 980 and Wis. Stat. ch. 51 are similarly situated). The trial court correctly determined it had jurisdiction over the commitment proceeding.

¶ 20. Although Burgess offers some authority for the proposition that states lack jurisdiction over involuntary commitment proceedings involving Native Americans, we are not persuaded because none of it involves Public Law 280. For instance, in White v. Califano, 437 F. Supp. 543, 564 (D.S.D. 1977), aff'd, 581 F.2d 697 (8th Cir. 1978), the court determined South Dakota has no jurisdiction to involuntarily commit a Native American residing on a reservation. South Dakota does not have civil jurisdiction under Public Law 280. See 28 U.S.C. 1360. Burgess also relies on 70 Op. Atty. Gen. 219 (1981), where our attorney general opined Wisconsin, based on Califano, did not have the authority to involuntarily commit a member of the Menominee Tribe under Wis. Stat. ch. 51. 70 Op. Att'y Gen. at 225. As the opinion points out, however, the Menominee were exempted from Public Law 280 in 1976. 70 Op. Att'y Gen. at 223. In his opinion, the attorney general specifically refused to address whether Public Law 280 grants jurisdiction under ch. 51. Burgess also points to attorney general opinions from Oregon, Arizona and North Dakota that say those states may not involuntarily commit Native Americans living on reservations. Public Law 280's civil jurisdiction does not apply to Arizona and North Dakota, and the Oregon opinion addressed the Warm Springs Indian Reservation, which is specifically excluded from Oregon's grant of 280 jurisdiction. See 28 U.S.C. § 1360. We conclude Wisconsin has jurisdiction over Wis. Stat. ch. 980 proceedings involving Native Americans through Public Law 280.

2. Insufficient evidence

¶ 21. Burgess next argues his commitment violates due process because the evidence at trial was insufficient to establish a nexus between his mental disorder and his ability to control his behavior, as required by Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867 (2002), or between his disorder and the probability he would commit future sex crimes, as required by Laxton. Specifically, he points to testimony by the State's experts that Burgess could conform his conduct to the requirements of the law. Burgess also attacks the expert's use of actuarial instruments in determining his likelihood to reoffend. We reject Burgess's arguments and conclude there was sufficient evidence for the jury to find him sexually violent.

¶ 22. In order to commit a person under Wis. Stat. ch. 980, the State must prove the person suffers from a mental disorder that makes it substantially probable the person will engage in acts of sexual violence. Wis. Stat. § 980.01(7). To comply with due process in committing a sexual offender, the State must demonstrate a nexus between the person's mental disorder and a serious difficulty in controlling his or her behavior. Laxton, 2002 WI 82 at ¶¶ 21-22 (citing Crane, 122 S.Ct. at 869). In Laxton, our supreme court determined ch. 980 complies with Crane's due process requirements because ch. 980's nexus between the disorder and dangerousness necessarily and implicitly involves proof of the nexus between the disorder and difficulty in controlling behavior. Laxton, 2002 WI 82 at ¶ 22.

¶ 23. In determining whether the evidence in a Wis. Stat. ch. 980 commitment is sufficient to sustain the jury's verdict, we view the evidence in the light most favorable to commitment. State v. Kienitz, 227 Wis. 2d 423, 434, 597 N.W.2d 712 (1999). We will not overturn the verdict unless the evidence is so insufficient in probative value and force that no reasonable trier of fact could have found the person to be sexually violent beyond a reasonable doubt. Id. In addition, the jury is sole judge of credibility; it weighs the evidence and resolves any conflicts. Id. at 435.

¶ 24. Burgess first argues the jury reached an improper verdict because Fields and Lodi both testified he could control his behavior. While we agree Lodi said this, Burgess stretches Fields' testimony. On cross-examination, Burgess's counsel questioned Fields regarding her opinion whether Burgess could be held legally responsible for his future actions, that is, whether he would know right from wrong and could conform his conduct to the requirements of the law. See Wis. Stat. § 971.15. Fields testified she believed Burgess met these requirements. This testimony, Burgess argues, shows Fields believed he could control his behavior.

¶ 25. We do not agree. During direct examination, Fields said that based on her professional opinion, she believed Burgess was likely to commit future acts of sexual violence. In support, she offered her own report, based on interviews with Burgess and others, the nature of his mental disorders, records regarding his past treatment, and the actuarial instruments. This is the proper inquiry for a Wis. Stat. ch. 980 commitment. Laxton requires evidence of a nexus between Burgess's mental disorders and a substantial probability he will engage in acts of sexual violence. Laxton, 2002 WI 82 at ¶ 22. As noted, this nexus satisfies Crane's requirement of a nexus between the disorder and difficulty in controlling behavior. Laxton, 2002 WI 82 at ¶¶ 21-22. Whether Burgess knows right from wrong or is able to conform his conduct to the requirements of the law addresses a wholly different legal question: whether Burgess could be not guilty by reason of mental disease or mental defect. See Wis. Stat. § 971.17. Chapter 980 does not preclude finding a person with a sexually-related mental disorder has difficulty in controlling his or her behavior even if that person is able to conform his conduct to the requirements of the law.

¶ 26. Burgess also challenges the State's use of the actuarial instruments. Specifically, he contends the instruments are irrelevant because they only show the probability that he will reoffend, but not that the reoffense will be because of his mental disorder. Burgess argues the tests do not account for his mental disorder. He contends there is no other evidence suggesting he will reoffend due to his disorder and, therefore, the State did not meet its burden.

¶ 27. Our review of the record reveals sufficient evidence to allow the jury to infer Burgess would reoffend because of his mental disorder. Both of the State's experts concluded in their testimony and reports that Burgess was likely to commit sexually violent acts because of his pedophilia and antisocial disorder. Expert witnesses may testify to ultimate issues to be decided by the trier of fact. Wis. Stat. § 907.04. These opinions were not based merely on the actuarial instruments, but also on interviews with Burgess, his prior diagnoses and treatment records, and conversations with other professionals involved with Burgess's treatment history. Viewing the testimony in a light most favorable to upholding the commitment and allowing the jury to weigh the evidence and assess witness credibility, we determine a reasonable jury could have found Burgess sexually violent beyond a reasonable doubt.

3. Jury instruction

¶ 28. Burgess next argues the trial court erred when it refused to modify the pattern jury instruction to clarify the nexus of Burgess's mental disorder and lack of control. Specifically, Burgess requested the court instruct the jury that it must find "That Steven J. Burgess suffers from a mental disorder which impairs his volitional control to the degree that he cannot control his dangerous behavior." Whether a jury instruction is an accurate statement of the law presents a question of law we review de novo. See State v. Neumann, 179 Wis. 2d 687, 699, 508 N.W.2d 54 (Ct. App. 1993).

¶ 29. Our resolution of this issue is controlled by Laxton. There, the supreme court rejected a challenge to the pattern instruction substantially the same as Burgess's. Laxton, 2002 WI 82 at ¶ 27. The court ruled because it had determined the due process-required nexus between the person's mental disorder and lack of control was implicit in the required by statute nexus between the disorder and dangerousness, and because the latter was reflected in the pattern instruction, the pattern instruction accurately reflected the law. Id. Burgess's challenge is the same as Laxton's and, therefore, the trial court properly instructed the jury.

4. New trial in interest of justice

¶ 30. Burgess next requests we exercise our discretion under Wis. Stat. § 752.35 and grant him a new trial in the interest of justice because the real issues were not fully tried. He claims the issues in question are (1) whether his mental disorders created a substantial probability he would reoffend and (2) whether his mental disorder made it seriously difficult for him to control his behavior. As noted in ¶ 22 infra, the second issue is implicit in the first. In addition, we have determined there is sufficient evidence supporting the jury's verdict. Finally, the trial court properly instructed the jury on the law. The real issue has been fully tried to the jury.

5. Closed proceeding

¶ 31. Burgess also argues the trial court erred when it refused to close his commitment proceedings. The court determined it did not have any authority to do so. In addition to a statutory argument, Burgess argues equal protection requires confidential proceedings. Because persons committed under Wis. Stat. ch. 980 are similarly situated to persons committed under Wis. Stat ch. 51 and because a person being committed under ch. 51 can request closed proceedings and confidential records, Burgess contends a person being committed under ch. 980 must be able to make the same requests.

¶ 32. In support of his statutory claim, Burgess relies on Post, where the supreme court noted persons committed under Wis. Stat. ch. 980 are defined as "patients" under Wis. Stat. ch. 51. Post, 197 Wis. 2d at 313. Burgess argues this requires the trial court grant him all the rights granted to persons under ch. 51.

¶ 33. We read Post differently. The definition of "patient" in Post is found in Wis. Stat. § 51.61(1). Id. at 313-14. Section 51.61 addresses patient rights, and the definition of "patient" in § 51.61(1) limits its application to that section only. The right to closed court proceedings before commitment is not found in that section. See Wis. Stat. § 51.20(5) and (12). Burgess has all the rights found in § 51.61, which address a person's rights after commitment. Neither Wis. Stat. ch. 980 nor Wis. Stat. ch. 51 grant persons being committed under ch. 980 the right to request confidential proceedings. The trial court properly concluded it had no authority to close Burgess's commitment proceeding.

¶ 34. In addition, we determine the legislature's failure to afford these same rights to persons committed under Wis. Stat. chs. 980 and 51 does not violate equal protection. Equal protection does not require that all persons be dealt with identically, but does require that a distinction made have some relevance to the purpose for which the classification is made. Williams, 2001 WI App 263 at ¶ 11. In comparing ch. 980 to other involuntary commitment schemes, we apply a "strict scrutiny" standard without deciding that its application is required. Id. This standard requires the State prove the classification is necessary to promote a compelling government interest. Id. Burgess argues denying confidentiality does not advance ch. 980's goals of treatment and protection of the public. We disagree.

¶ 35. We determine there are compelling interests in affording closed hearings to persons committed under Wis. Stat. ch. 51, but not to those under Wis. Stat. ch. 980. These interests are the privacy of persons committed under ch. 51 and ch. 980's goal of protecting the public. Closed proceedings under ch. 51 advance the privacy interests of those being committed. The actions of persons committed under ch. 51 are often not criminal, not necessarily a matter of public record, nor always violent toward others. Persons undergoing ch. 980 commitments are convicted, violent sex offenders. The legislature has concluded sexually violent persons are more dangerous than those committed under ch. 51. Williams, 2001 WI App 263 at ¶ 13. By allowing open commitment proceedings, the legislature advances ch. 980's goal of protecting the public by allowing it access to information about dangerous persons. Equal protection does not require confidentiality for persons committed under ch. 980.

6. Changes to Wis. Stat. ch. 980 violate equal protection

¶ 36. Finally, Burgess argues the legislature's changes to Wis. Stat. ch. 980 in 1999 by Wis. Act 9 violate his right to equal protection. These changes require, among other things, that persons committed under ch. 980 be institutionalized and does not allow them to petition for release for at least eighteen months. He suggests this violates equal protection because persons committed under other procedures, such as Wis. Stat. ch. 51 or Wis. Stat. § 971.17, are not required to be institutionalized and, if they are, may petition for release sooner.

¶ 37. Burgess acknowledges we rejected the same argument in Williams. There, we concluded that although persons committed under Wis. Stat. ch. 980, Wis. Stat. ch. 51 and Wis. Stat. § 971.17 are similarly situated, the more stringent standards of ch. 980 did not violate equal protection because the legislature concluded sexually violent persons, as a class, are more dangerous than those committed under ch. 51 or § 971.17. Id. at ¶¶ 10, 18, 20, 24. At the time he filed his brief, however, the supreme court was still considering a petition for review in that case. Because the court has now declined review, we reject Burgess's equal protection claim based on Williams.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       By order dated December 4, 2001, we held Burgess's appeal in abeyance pending the United States Supreme Court's decision in Kansas v. Crane, 534 U.S. 407 (2002). Crane was decided on January 22, 2002. The next week, our supreme court granted a petition for review in State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784, which had been held in abeyance pending Crane. We extended the abeyance pending the resolution of Laxton. The supreme court decided Laxton on July 1, 2002. The parties rebriefed the matter in its entirety.

       In Williams, we only assumed persons committed under Wis. Stat. § 971.17 and Wis. Stat. ch. 980 were similarly situated. State v. Williams, 2001 WI App 263, ¶¶ 10-11, 249 Wis. 2d 263, 637 N.W.2d 791. That persons committed under ch. 980 and ch. 51 are similarly situated was resolved by the supreme court in State v. Post, 197 Wis. 2d 279, 318-19, 541 N.W.2d 115 (1995).


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Robert L. Noll, Defendant-Appellant.
    Court of Appeals

      No. 01-3341-CR.

      Submitted on briefs September 12, 2002.

      Decided October 16, 2002.

    2002 WI App 273
    (Also reported in 653 N.W.2d 895.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert L. Noll, pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. Robert L. Noll appeals a circuit court order denying his motion for sentence modification and a circuit court order denying his motion for reconsideration of the denial of sentence modification. Noll argues that the court erred in denying his sentence modification motion as untimely. We agree. Therefore, we reverse and remand.

¶ 2. Background. On February 3,1999, Noll was charged with two counts of delivery of marijuana in addition to one count of delivery of marijuana, party to a crime. All three counts included repeater allegations under Wis. Stat. § 939.62 (1999-2000). On July 20, 1999, Noll pled guilty to "three counts of delivery as a repeater." On count one, the circuit court sentenced Noll to seven years in prison consecutive to his parole revocation and to any other sentences he was presently serving. The court withheld sentence and imposed five years of probation on counts two and three, with the probation terms to run consecutive to the prison term imposed on count one but concurrent with each other. The court also ordered restitution, payment of a fine and payment of court costs. Judgments of conviction were entered on August 23, 1999.

¶ 3. On October 11, 2001, the clerk received Noll's motion for sentence reduction. On October 30, 2001, the circuit court denied Noll's motion as untimely under Wis. Stat. § 973.19. On November 27, 2001, the court denied Noll's motion for reconsideration. Noll appeals.

¶ 4. Standard of Review. We review a motion for sentence modification by determining whether the sentencing court erroneously exercised its discretion in sentencing the defendant. See Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). It follows that our review of a circuit court's decision to dismiss a motion for sentence modification is reviewed under the same standard. However, this case involves the application of Wis. Stat. § 973.19 to undisputed facts, which presents a question of law reviewed without deference to the trial court. State v. Wilke, 152 Wis. 2d 243, 247, 448 N.W.2d 13 (Ct. App. 1989).

¶ 5. Discussion. Our reversal is not based on the merits of Noll's motion for sentence modification. Instead, we reverse because the circuit court erroneously ruled that Noll missed the deadline to move for modification of his sentence under the ninety-day time limit set out in Wis. Stat. § 973.19. This reasoning demonstrates that the court misguidedly considered Noll's motion as cognizable under § 973.19. However, the court should have recognized that Noll's motion invoked the circuit court's inherent authority to modify a sentence based on new factors. In his motion, Noll specifically stated that his claims were brought "pursuant to the circuit court's inherent power to modify a sentence on the basis of either a new factor, not considered at defendant's original sentencing or an abuse of the court's discretion at the time of sentencing, or both." Noll did not proceed under § 973.19, and the ninety-day time limit in that statute did not apply to his motion.

¶ 6. The State concedes circuit court error in this regard. Nonetheless, the State argues that Noll's motion lacks merit and we should affirm based on our ability to do so under State v. Horn, 139 Wis. 2d 473, 490, 407 N.W.2d 854 (1987) ("if the holding is correct, it should be sustained, and this court may do so on a theory or on reasoning not presented to the lower courts").

¶ 7. We decline to do so because whether a new factor justifies sentence modification rests within the sound discretion of the circuit court. See State v. Norton, 2001 WI App 245, ¶ 8, 248 Wis. 2d 162, 635 N.W.2d 656. The court did not address Noll's motion under a new-factor analysis; on remand, we direct the court to exercise its discretion by considering Noll's motion for sentence modification under a new-factor analysis and to make a determination on the merits.

¶ 8. In order to assist the lower court on remand, we briefly clarify the distinction between a Wis. Stat. § 973.19 modification motion and a motion based on a new-factor analysis, which invokes the inherent power of the court.

¶ 9. A defendant can seek sentence modification in two ways. First, a defendant can file a motion under Wis. Stat. § 973.19, which permits a defendant "to move for modification of his sentence as a matter of right." State v. Scaccio, 2000 WI App 265, ¶ 3, 240 Wis. 2d 95, 622 N.W.2d 449. Paragraph (1)(a) of § 973.19 applies to defendants who do not want to pursue an appeal yet want to seek sentence modification because, they contend, the circuit court imposed too severe a sentence. This paragraph also applies to claims that a court imposed an "unduly harsh or unconscionable" sentence. State v. Macemon, 113 Wis. 2d 662, 668 n.3, 335 N.W.2d 402 (1983).

¶ 10. Thus, if a defendant opts not to pursue a direct appeal of a conviction and seeks only to challenge his or her sentence, Wis. Stat. § 973.19(l)(a) provides the mechanism for asserting an erroneous exercise of discretion based on excessiveness, undue harshness, or unconscionability.

¶ 11. The second approach a defendant may take to seek sentence modification is to move for discretionary review, invoking the "inherent power" of the circuit court. Hayes v. State, 46 Wis. 2d 93, 101, 175 N.W.2d 625 (1970), overruled on other grounds by State v. Taylor, 60 Wis. 2d 506, 523, 210 N.W.2d 873 (1973). The court exercises its inherent power to modify a sentence only if a defendant demonstrates the existence of a "new factor" justifying sentence modification. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

¶ 12. Noll sought sentence modification under the second approach. That is, Noll's motion invoked the circuit court's inherent authority to modify his sentence based on new factors. This inherent authority may be exercised as a matter of discretion and is not governed by a time limitation. State v. Machner, 101 Wis. 2d 79, 82, 303 N.W.2d 633 (1981). The circuit court, therefore, should not have dismissed Noll's motion as untimely under Wis. Stat. § 973.19. Instead, the court should have analyzed the merits of the specific claims made in Noll's motion for sentence modification and we direct it to do so on remand.

¶ 13. Finally, we address the State's concern that there exists contradictory case law blurring the distinction between the basis for sentence modification under Wis. Stat. § 973.19 and the basis for sentence modification when a defendant invokes a circuit court's inherent power to review and modify a sentence. Specifically, we speak to the State's valid criticism of Scaccio, 2000 WI App 265, in light of our opinion in State v. Coolidge, 173 Wis. 2d 783, 788, 496 N.W.2d 701 (Ct. App. 1993), which relied on the supreme court's opinion in Franklin, 148 Wis. 2d at 1.

¶ 14. The State points out that the Scaccio court wrote, "When proceeding under Wis. Stat. § 973.19, a defendant's sentence may be modified if there is some 'new factor.'" Scaccio, 2000 WI App 265 at ¶ 13. The State correctly contends that our holding in Coolidge contradicts this statement and clearly does not support linking § 973.19 with a new-factor analysis. The State is correct. In fact, the only connection in Coolidge between § 973.19 and a new-factor analysis arose in the Coolidge court's summary of the way the State and the circuit court judge had characterized the issue — a characterization with which the Coolidge court specifically disagreed:

The state and Judge Wagner-Malloy classified the defendant's challenge to his sentences as a motion for modification of sentence under sec. 973.19, Stats., requiring the defendant to prove the existence of a "new factor" as stated in State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609, 611 (1989). We disagree. An examination of the challenges presented in the motion reveals that none ask the court to modify the sentences, but all ask the court to correct the sentences imposed in violation of Wisconsin law and which, therefore, are in excess of the maximum sentence authorized by law. The motion also asks the court to correct the sentences based on a due process violation. This type of motion is governed by sec. 974.06, Stats., and does not require the application of the "new factor" test.

Coolidge, 173 Wis. 2d at 788 (emphasis added; footnote omitted).

¶ 15. In contrast to the Scaccio opinion, the Coolidge opinion followed the precedent of our supreme court's holding in Franklin, 148 Wis. 2d at 1. Franklin does not mention Wis. Stat. § 973.19, nor does it require a defendant to prove the existence of a new factor when seeking sentence modification under that statute. Rather, in Franklin, because thirteen years had passed between the imposition of sentence and the defendant's filing of his sentence modification motion, the modification issue arose in the context of the sentencing court's exercise of its inherent power to modify a sentence based on the existence of a new factor, not in the context of a motion under § 973.19. Franklin, 148 Wis. 2d at 5-8.

¶ 16. We conclude that based upon the precedents of Franklin and Coolidge, the Scaccio decision wrongly linked Wis. Stat. § 973.19 with a new-factor analysis. In this linking, the Scaccio court erroneously acted to "overrule, modify or withdraw language from a published opinion" of the supreme court and the court of appeals, an act solely within the discretion of the supreme court. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). In Cook, our supreme court made its exclusive authority clear:

The court of appeals is a unitary court; published opinions of the court of appeals are precedential; litigants, lawyers and circuit courts should be able to rely on precedent; and law development and law defining rest primarily with the supreme court. Adhering to these principles we conclude that the constitution and statutes must be read to provide that only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals. In that way one court, not several, is the unifying law defining and law development court.
The court of appeals, however, is not powerless if it concludes that a prior decision of the court of appeals or the supreme court is erroneous. It may signal its disfavor to litigants, lawyers and this court by certifying the appeal to this court, explaining that it believes a prior case was wrongly decided. Alternatively, the court of appeals may decide the appeal, adhering to a prior case but stating its belief that the prior case was wrongly decided.

Id. Thus, insofar as Scaccio blurs the distinction between the two discrete avenues that a defendant can pursue to seek a modification of his or her sentence, Scaccio violates the principle of Cook.

By the Court. — Orders reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 973.19 provides:
      Motion to modify sentence. (1) (a) A person sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts under s. 809.30(2) may, within 90 days after the sentence or order is entered, move the court to modify the sentence or the amount of the fine.
      (b) A person who has requested transcripts under s. 809.30(2) may move for modification of a sentence or fine under s. 809.30(2)(h).
      (2) Within 90 days after a motion under sub. (l)(a) is filed, the court shall enter an order either determining the motion or extending the time for doing so by not more than 90 days for cause.
      (3) If an order determining a motion under sub. (l)(a) is not entered timely under sub. (2), the motion shall he considered denied and the clerk of the court shall immediately enter an order denying the motion.

        (4) An appeal from an order determining a motion under sub. (l)(a) is governed by the procedure for civil appeals.
      (5) By filing a motion under sub. (l)(a) the defendant waives his or her right to file an appeal or postconviction motion under s. 809.30(2).

        See Judicial Council Note 1984, for Wis. Stat. § 973.19, which states in pertinent part:
      This section is intended as an expeditious alternative to the procedure prescribed in s. 809.30(2) when the only claim for postconviction relief relates to the severity of the sentence. It is not intended to alter the substantive grounds for such relief and it restores the time limits governing such motions prior to the 1978 revision of the appellate rules.
      This section will probably be most frequently used in guilty plea cases, although it is not limited to such cases.

       We recognize that our holding today appears to also violate the Cook rule that an appellate decision may not overrule another appellate or supreme court decision. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). However, on close examination, the reader will recognize that our holding (which reflects that there are two distinct ways a defendant can pursue sentence modification) does nothing more than reiterate the law under previous supreme court and court of appeals precedent. See State v. Coolidge, 173 Wis. 2d 783, 496 N.W.2d 701 (Ct. App. 1993), and State v. Franklin, 148 Wis. 2d 1, 434 N.W.2d 609 (1989).


author: NETTESHEIM, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joseph F. Volk, Defendant-Appellant.
    Court of Appeals

      No. 01-3342-CR.

      Submitted on briefs August 21, 2002.

      Decided October 16, 2002.

    2002 WI App 274
    (Also reported in 654 N.W.2d 24.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Charles Bennett Vetzner, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Lara M. Herman, assistant attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   NETTESHEIM, PJ.

¶ 1. A jury found Joseph E Volk guilty of aggravated battery based upon a domestic violence incident involving his live-in girlfriend. Volk appeals from the judgment of conviction and from an order denying his motion for postconviction relief.

¶ 2. Volk makes two arguments on appeal. First, he argues that the trial court erred in admitting "other acts" evidence regarding prior incidents of domestic abuse against his former wife. Second, Volk argues that the trial court erroneously applied the habitual criminal penalty enhancer to the extended supervision portion of his sentence under the truth-in-sentencing law. We reject Volk's evidentiary argument. However, we agree with Volk's sentencing argument. We hold that Wis. Stat. § 973.01(2)(c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. Therefore, we reverse the sentencing portion of the judgment and the postconviction order that rejected Volk's challenge to the sentence. We remand for a resentencing consistent with this opinion.

¶ 3. We will set forth the relevant procedural and historical facts as we discuss each of the issues on appeal.

DISCUSSION

Admission of Other Acts Evidence

¶ 4. On March 20, 2000, the State filed a criminal complaint against Volk alleging aggravated battery and disorderly conduct as a repeat offender. The complaint charged Volk with hitting his live-in girlfriend, Rhonda Swim, in the face, pushing her to the floor and sticking his fingers down her throat causing her to spit up blood and causing damage to her tongue and throat. The repeater allegátion indicated that Volk had previously been convicted of two counts of battery by a repeat offender on March 21, 1994, and battery as a repeat offender on August 29, 1994. The complaint noted that the previous convictions pertained to acts of domestic violence against his former spouse, Susan Love Volk, and that Volk had been arrested on seven occasions for "domestic violence-related battery." Except for the post-conviction proceedings, Volk represented himself in the trial court.

¶ 5. Prior to trial, the State filed a motion for the introduction of "other acts" evidence pursuant to Wis. Stat. § 904.04. Specifically, the State sought to introduce six prior documented acts of domestic violence committed by Volk against his former wife. The State sought admission of the evidence to prove Volk's intent, as well as to negate absence of mistake or accident. In addition, the State sought to refute Volk's statement to the police that Swim's injuries were caused when she "bit her own lip." Volk objected, arguing that the incident with Swim differed from his assaults on his former wife and, therefore, evidence as to his prior assaults would confuse the jury. Volk additionally argued that the prejudicial effect of the evidence would outweigh its probative value.

¶ 6. Following a hearing on October 3, 2000, the trial court granted the State's request for admission of the "other acts" evidence. Applying the analysis set forth in State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the court determined: (1) the evidence was offered for an acceptable purpose; (2) the evidence was relevant to whether Volk intended to injure Swim; and (3) the probative value of the evidence was not substantially outweighed by its prejudicial effect. The matter proceeded to jury trial on December 12, 2000.

¶ 7. At the trial, Swim testified that at approximately 1:00 a.m. on March 18, 2000, while she was living with Volk, she and Volk were intoxicated and became engaged in an argument during which Volk shoved her and she shoved him back. Volk finally pushed Swim to her knees, grabbed her neck and began choking her. Volk then "shoved his fingers down [her] throat, scratched the inside of [her] throat, pulled them back up and ripped [her] tongue on the way back out of [her] mouth." The tear to Swim's tongue occurred when Volk grabbed it and pulled it to the side. When Volk removed his fingers from Swim's mouth, she began spitting up blood. She did not attempt to leave the residence for fear that Volk would attack her again. When Volk went to bed, Swim went to the bathroom and eventually left the residence after Volk fell asleep. Swim stopped some people on the street who took her to a phone booth and she called the police.

¶ 8. The physician who treated Swim's injuries, Dr. Jim Concannon, testified that Swim presented with difficulty speaking and swallowing and had some tenderness to the external areas of the face. Dr. Concannon observed that the floor of Swim's mouth was swollen with a rip measuring approximately two inches in length. Dr. Concannon testified that it would have been impossible for Swim's wounds to be self-inflicted.

¶ 9. Officer Eugene Heckel of the City of Kenosha Police Department testified that at approximately 1:00 a.m., he and Officer Joseph Riesselmann were flagged down by several individuals who stated that they had encountered a woman walking in the area who was bleeding. The officers located the woman who identified herself as Rhonda Swim. The officers noted that she had some blood on her clothing and she appeared to be bleeding from her mouth. Swim was upset, crying and appeared to be intoxicated. Swim informed the officers that Volk, her live-in boyfriend, had struck her. At this time, another officer, Jon Schrandt, arrived at the scene and offered to stay with Swim while Heckel and Ries-selmann went to locate Volk.

¶ 10. When the officers arrived at Volk's address, they attempted to contact him by knocking on the door and calling on the telephone but were unsuccessful. Swim was brought to the residence to provide consent for the officers to enter the residence. When they did so, they located Volk hiding in the bedroom between the bed and the wall. Heckel testified that when questioned regarding Swim's injuries, Volk responded, "That's bullshit, the bitch hit her own lip." The officers handcuffed Volk, who appeared to be intoxicated, and escorted him out of the residence. Swim later sought medical attention at a hospital where she was admitted due to the seriousness of her injuries.

¶ 11. Riesselmann similarly testified as to the events leading up to Volk's arrest. Riesselmann testified that when asked about Swim's injuries, Volk responded that "that bitch bit her own lip; that bitch did everything to [herself]."

¶ 12. Volk testified as to his version of the events, which differed significantly from Swim's. Volk testified that the incident began when Swim "cracked a beer open" and it "triggered" him to approach her and push her backwards. According to Volk, Swim began hitting him. When Volk began caressing Swim's face, it was full of blood. Volk "ordered" Swim to the bathroom where she spit up "three or four ounces" of blood. Volk testified that when he observed Swim remove her blouse, she was wearing a bloody shirt underneath. According to Volk, Swim was trying to frame him.

¶ 13. In addition to Swim's testimony and that of the arresting officers, the State presented testimony from Volk's former wife, Susan Love Volk. Love testified regarding the following episodes of domestic violence committed by Volk during their relationship. On April 21, 1992, Volk had been drinking and they had an altercation regarding money and Volk slapped her across the face a couple of times. On July 3, 1992, Volk punched Love, pushed her over the back of the couch and choked her and then kicked her. Love went into the bedroom where Volk attempted to choke her again and suffocate her in blankets and pillows. On September 22, 1992, Volk "smashed" Love's head into the wall, pulled her hair, choked her and threatened her with a utility knife. On November 3,1993, Volk punched Love, kicked her and grabbed her private parts "as hard as he could." Finally, on June 23, 1994, Love was sitting in a recliner in their residence when Volk entered and began punching her and slapped her back and forth across the face leaving a laceration and blood spurts on the window blinds.

¶ 14. Following the close of the evidence, the trial court instructed the jury that it should consider Love's testimony "only on the issues of intent and absence of mistake or accident.... It is not to be used to conclude that the defendant is a bad person and for that reason is guilty of the offense charged."

¶ 15. The jury found Volk guilty of aggravated battery and disorderly conduct. Volk was sentenced as a habitual criminal under the truth-in-sentencing law. The trial court sentenced Volk to a total of twelve years' imprisonment, consisting of a six-year term of confinement followed by a six-year term of extended supervision.

¶ 16. Volk appeals. He challenges the trial court's admission of the "other acts" evidence and the extended supervision portion of his sentence under the truth-in-sentencing law.

Other Acts Evidence

¶ 17. The admission or exclusion of evidence is committed to the sound discretion of the trial court. See Sullivan, 216 Wis. 2d at 780. A reviewing court will sustain a discretionary ruling if the trial court examined the relevant facts, applied the proper standard of law and, using a rational process, reached a conclusion a reasonable judge could reach. Id. at 780-81. In assessing the admissibility of other acts evidence, the trial court must apply the three-step analytical framework set forth in Sullivan.

¶ 18. First, the trial court must determine whether the evidence is offered for an acceptable purpose under Wis. Stat. § 904.04(2) — to establish motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Sullivan, 216 Wis. 2d at 772. Second, the trial court must determine whether the evidence is relevant. In assessing relevance, the court must first determine whether the evidence "relates to a fact or proposition that is of consequence to the determination of the action," and second, determine whether the evidence has probative value such that it tends to make the consequential fact or proposition more probable or less probable than it would be without the evidence. Id. Finally, the trial court must determine whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless preparation of cumulative evidence. Id. at 772-73.

¶ 19. Here, Volk does not dispute that Love's testimony met the requirements of the first prong of Sullivan — that the evidence was offered for a permissible purpose under Wis. Stat. § 904.04. Nor does Volk dispute that the evidence met the first aspect of the second prong of Sullivan — that the other acts evidence was of consequence to the determination of the action. Sullivan, 216 Wis. 2d at 786. As indicated by the State prior to trial, Love's statements were permissible to refute Volk's statement that he did not intend any harm to Swim. The evidence was also relevant to the absence of mistake or accident in that it refuted Volk's statement that Swim injured herself. Clearly, a determination as to mistake or accident was of consequence to the determination of this action.

¶ 20. Rather, it is the second aspect of the second prong of Sullivan, the probative value of the evidence, that is at issue. The probative value of evidence is determined by whether the evidence has a tendency to make a consequential fact more probable or less probable than it would be without the evidence. See id. Here, Volk argues that Love's testimony did not meet this requirement because the altercations described by Love did not involve the particular type of assaultive behavior alleged by Swim. Volk reasons that because Love did not testify to an incident involving Volk sticking his fingers down her throat and injuring her tongue and throat, the evidence does not tend to make a consequential fact, here whether Volk intended to harm Swim or whether Swim injured herself, more or less probable than it would have been without Love's testimony. We disagree.

¶ 21. Sullivan instructs:

[T]he probative value lies in the similarity between the other act and the charged offense. The stronger the similarity between the other acts and the charged offense, the greater will be the probability that the like result was not repeated by mere chance or coincidence .... "[I]f a like occurrence takes place enough times, it can no longer be attributed to mere coincidence. Innocent intent will become improbable."

Id. at 786-87 (citation omitted). In this case, the State offered Love's testimony to refute Volk's defense that he did not intend to harm Swim and that Swim injured herself. Contrary to Volk's belief, Sullivan does not require the prior conduct to be exactly similar to the alleged offense. Rather, Sullivan looks to the strength of the similarity. Id. ("The stronger the similarity . . . the greater will be the probability ....")

¶ 22. Here, the prior acts testified to by Love were very similar to the events surrounding the charged offense and, as a result, Love's testimony had a strong tendency to make Volk's defense less probable than if she had not testified. Unlike the "other acts" evidence rejected by our supreme court in Sullivan which consisted of one prior incident lacking unusual facts or physical contact, Love's testimony involved a series of incidents involving complex facts and physical contact similar to that alleged by Swim. See id. at 788-89. Specifically, the altercations described by Love were similar in that Volk had been drinking, the violence was perpetrated against a domestic partner and Volk's actions involved strikes to the head and choking. We are satisfied that Love's testimony served to make it less probable that Volk did not intend to harm Swim or that Swim injured herself. As such, the evidence satisfied the second aspect of the second prong of Sullivan.

¶ 23. Finally, we reject Volk's challenge to the trial court's finding that the probative value of the evidence outweighed the danger of unfair prejudice. "Unfair prejudice results when the proffered evidence has a tendency to influence the outcome by improper means or if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case." Id. at 789-90.

¶ 24. We agree with the State that Love's testimony did not have a tendency to influence the outcome by improper means. Rather, it served to undermine Volk's credibility and refute his claim that Swim's injuries were self-inflicted or accidental. Insofar as the evidence may have appealed to the jury's sympathies or aroused its sense of horror, we note that none of the incidents described by Love were worse than the aggravated battery for which Volk was being tried. Any sense of sympathy or horror held by the jury would likely be most attributable to Swim's testimony, not Love's. Finally, we note that the trial court correctly instructed the jury as to the proper use of the other acts evidence.

¶ 25. We conclude that the trial court properly exercised its discretion in balancing the probative value of Love's testimony against the danger of unfair prejudice as required by Wis. Stat. § 904.03. Therefore, the court did not err by admitting the evidence.

Application of Penalty Enhancer to Period of Extended Supervision

¶ 26. Volk was sentenced as a habitual criminal under the truth-in-sentencing law, Wis. Stat. § 973.01. On appeal, Volk challenges the extended supervision portion of the sentence.

¶ 27. Aggravated battery is a Class D felony. Wis. Stat. § 940.19(6). A Class D felony carries a penalty of "a fine not to exceed $10,000 or imprisonment not to exceed 10 years, or both." Wis. Stat. § 939.50(3)(d). However, Volk was also convicted as a habitual criminal pursuant to Wis. Stat. § 939.62(l)(b) based upon his prior misdemeanor convictions. This increased Volk's total imprisonment exposure from ten years to twelve years. See id. At the sentencing, Volk admitted to these prior convictions.

¶ 28. Under the "truth-in-sentencing" law, a sentence to imprisonment consists of a "term of confinement" and a "term of extended supervision." Wis. Stat. § 973.01(1). The maximum term of confinement for a Class D felony is five years. Sec. 973.01(2)(b)4. The remainder of the sentence consists of extended supervision, which "may not be less than 25% of the length of the term of confinement in prison imposed under par. (b)." Sec. 973.01(2)(d).

¶ 29. Applying the enhanced penalty provisions, the trial court sentenced Volk to the maximum twelve years' imprisonment. Applying the bifurcated sentence provisions of Wis. Stat. § 973.01(1), the court ordered a six-year term of confinement followed by a six-year term of extended supervision.

¶ 30. Represented by counsel for the first time, Volk filed a postconviction motion challenging the legality of the enhanced term of extended supervision. The motion contended, "This additional penalty, if imposed, is to be applied to the term of confinement. Wis. Stat. § 973.01(2)(c)." As relief, Volk sought to reduce the six-year term of extended supervision to five years.

¶ 31. On November 23, 2001, the trial court issued a written decision rejecting Volk's argument that the penalty enhancer can only be used to increase a maximum term of confinement. The court said that Volk's interpretation was unreasonable because, in certain situations, it would allow for a greater term of extended supervision in a nonenhancement case than in an enhancement case. As a result, the court concluded that "the only way that [Wis. Stat. § 973.01(2)(c)] makes sense is to read it in the context of potential sentences and not in terms of actual sentences imposed."

¶ 32. As a threshold matter, we address the State's contention that we need not address whether a penalty enhancer may be applied to a term of extended supervision. The State argues that the trial court's sentence can be construed as imposing the penalty enhancer only to the term of confinement. Under the State's reasoning, the trial court imposed a four-year term of confinement and then enhanced that confinement by two additional years, producing the six-year term of confinement.

¶ 33. While we understand the State's mathematics, it is not supported by the record in this case. We have reviewed the trial court's statements at sentencing and its postconviction decision and order. We find no indication in these materials that the trial court limited the application of the penalty enhancer to only the term of confinement. To the contrary, when Volk complained that the term of extended supervision had been enhanced, the trial court explained in some detail why it believed a sentencing court could enhance a term of extended supervision. In so doing, the court even pointed to what it saw as the unreasonable results produced by Volk's argument. In short, the State's interpretation of the sentence is made out of whole cloth and is not supported by the record. Therefore, we proceed to the merits of Volk's argument.

Wisconsin Stat. § 973.01(2)(c) is Unambiguous

¶ 34. The interpretation and application of a statute present questions of law which we review de novo. State v. Murdock, 2000 WI App 170, ¶ 18, 238 Wis. 2d 301, 617 N.W.2d 175. "Statutory interpretation begins with the language of the statute, and if the language is plain and unambiguous, we apply it without further inquiry into extrinsic interpretive aids." State v. T.J. Int'l, Inc., 2001 WI 76, ¶ 20, 244 Wis. 2d 481, 628 N.W.2d 774. "If statutory language is ambiguous, that is, 'if reasonable minds could differ as to its meaning,' we look to the scope, history, context, subject matter, and purpose of the statute to help establish its proper interpretation." Id. (citations omitted). The purpose of statutory interpretation is to discern the intent of the legislature, and the primary resource is the language of the statute itself. State v. Eichman, 155 Wis. 2d 552, 560, 456 N.W.2d 143 (1990).

¶ 35. We agree with Volk's argument that a penalty enhancer cannot be applied to the term of extended supervision. The opening subsection of the "truth-in-sentencing" statute, Wis. Stat. § 973.01(1), sets out the "confinement" and "extended supervision" components of a sentence of imprisonment for a felony committed on or after December 31, 1999. Paragraph (2)(a) provides that the total length of a bifurcated sentence may not exceed the maximum period of imprisonment for the felony. Paragraph (2)(b) then sets out the maximum periods of confinement for the various classes of felonies "except as provided in par (c)," which address penalty enhancement in a truth-in-sentencing case. Paragraph (c) reads:

Penalty enhancement. The maximum term of confinement in prison specified in par. (b) may be increased by any applicable penalty enhancement. If the maximum term of confinement in prison specified in par. (b) is increased under this paragraph, the total length of the bifurcated sentence that may be imposed is increased by the same amount. (Emphasis added.)

¶ 36. The first sentence of this paragraph clearly and unambiguously authorizes the sentencing court to apply the penalty enhancer to the term of confinement. However, the statute confers no such authorization to the term of extended supervision. This alone strongly suggests that Wis. Stat. § 973.01(2)(c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. From this, it logically follows, as set out in the second sentence of the paragraph, that when the penalty enhancer is applied to a term of confinement, the total length of the bifurcated sentence is "increased by the same amount." Id.

¶ 37. Certain principles of statutory construction support our interpretation. When the legislature has specified one exception to a general rule, we presume that the legislature intended to exclude other exceptions. See State v. Cetnarowski, 166 Wis. 2d 700, 710, 480 N.W.2d 790 (Ct. App. 1992). Here, Wis. Stat. § 973.01(2)(b) sets out the general rule prescribing the maximum periods of confinement for the various classes of felonies. However, this recital concludes with the important qualifier, "except as provided in par. (c)." (Emphasis added). As noted, para, (c) is the penalty-enhancer provision of the truth-in-sentencing law. While this paragraph permits penalty enhancement of a term of confinement, it says nothing about enhancement of a term of extended supervision. We deem this omission significant.

¶ 38. Despite this language, the State persists that a penalty enhancer can nonetheless be applied to a term of extended supervision. If that truly was the legislative intent, the legislature has kept it well hidden. "The plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or hidden sense." State Bank of Drummond v. Nuesse, 13 Wis. 2d 74, 78, 108 N.W.2d 283 (1961).

¶ 39. Lest there be any doubt about the correctness of our interpretation, the legislative history of the truth-in-sentencing law resolves the question. "The well-established tenets of the plain meaning rule preclude courts from resorting to legislative history to uncover ambiguities in a statute otherwise clear on its face." State ex rel. Cramer v. Court of Appeals, 2000 WI 86, ¶ 37, 236 Wis. 2d 473, 613 N.W.2d 591. "While legislative history cannot be used to demonstrate that a statute unambiguous on its face is ambiguous, there is no converse rule that statutory history cannot be used to reinforce and demonstrate that a statute plain on its face, when viewed historically, is indeed unambiguous." State v. Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991). Therefore, on occasion, this court consults legislative history and other sources "to show how that history supports our interpretation of a statute otherwise clear on its face." Seider v. O'Connell, 2000 WI 76, ¶ 52, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 40. 1997 Wis. Act 283, which established the truth-in-sentencing legislation, also created the Criminal Penalties Study Committee. 1997 Wis. Act 283, § 419. The Criminal Penalties Study Committee is "an 18-person bipartisan and diverse group of judges, prosecutors, criminal defense lawyers, legislators, academics, corrections and law enforcement officials, and members of the public." Michael B. Brennan & Donald V. Latorraca, Truth-in-Sentencing, Wis. Law., May 2000, at 14, 58. The Committee was charged with the responsibility of making recommendations regarding the truth-in-sentencing legislation and drafting proposed legislation necessary to implement the recommendations. State of Wisconsin Criminal Penalties Study Committee, Final Report ("Report"), August 31, 1999, at 6.

¶ 41. On August 31, 1999, the Committee issued its report. Id. The Committee made two recommendations regarding penalty enhancers under Wis. Stat. § 973.01(2)(c). First:

If pleaded and proved, these enhancers increase the maximum term of confinement for the underlying crime and increase the overall maximum term of imprisonment as well. They do not lengthen the maximum term of extended supervision for the underlying crime .... [S]uppose that one has been convicted of the crime of assault by a prisoner while armed with a dangerous weapon .... The dangerous weapon penalty enhancer adds 5 years to the maximum term of confinement for the underlying assault charge while likewise increasing the overall maximum term of imprisonment by the same amount. It does not increase the maximum term of extended supervision.

Report at 60 (footnotes omitted). And second:

The extended supervision caps ... would apply regardless of whether the penalties for the crime of conviction have been increased because the actor is a habitual criminal and/or because one of the penalty enhancers... has been pleaded and proved. In these instances the maximum term of confinement increases according to schedules in the Statutes and the overall maximum term of imprisonment increases by a like amount. The maximum term of extended supervision, however, does not increase.
Given the purposes of extended supervision, the Committee believes this amount is sufficient. It does not recommend adjusting extended supervision caps when penalty enhancers (including habitual criminality) are present in the case.

Report at 20 (footnotes omitted).

¶ 42. The Criminal Penalties Study Committee's Final Report clearly supports our interpretation of Wis. Stat. § 973.01(2)(c). "By confirming that our understanding of [the] law conforms with [the Committee's interpretation], we better fulfill our duty of effectuating the legislature's intent." Seider, 2000 WI 76 at ¶ 52.

¶ 43. The State also argues that limiting a penalty enhancer to just the term of confinement produces an unreasonable result because it necessarily limits the trial court's discretion in determining the appropriate duration of the term of extended supervision. While our interpretation might constrain a sentencing court's exercise of discretion in a given case, we do not agree our holding necessarily produces an unreasonable or absurd result. The legislative history we have previously cited establishes that the legislature wanted a habitual criminal's term of confinement enhanced — not the term of extended supervision. This decision makes eminent sense since it confers greater protection to the public from those who have already demonstrated a propensity to engage in criminal behavior.

¶ 44. Even assuming for the sake of argument that the State's interpretation of the statute is more reasonable than ours, it does not necessarily follow that our interpretation is thereby rendered unreasonable or absurd. In State v. Lindsey A.F., 2002 WI App. 223, Nos. 01-0081; 01-0082, the court of appeals addressed competing interpretations of the deferred prosecution provisions of Wis. Stat. § 938.21(7). Lindsey, 2002 WI App 223 at ¶ 1. Adhering to the plain language of the statute, the court of appeals acknowledged that its interpretation could produce "dismissals [of delinquency petitions] based on inadequate information" and created a "cumbersome" procedure. Id. at ¶ 24. Nonetheless, the court held that this result was not absurd. Id. The same logic applies here.

¶ 45. Even though a trial court has wide discretion in the matter of sentencing, the legislature is the ultimate authority that sets the maximum, and sometimes minimum, terms of imprisonment and confinement. The State's argument is better directed to the legislature than to this court.

Resentencing

¶ 46. Having concluded that the trial court erred by enhancing Volk's term of extended supervision, we next consider the remedy. At first blush, this case appears to fall under Wis. Stat. § 973.13, which states:

In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.

If this statute applies, we would simply confirm the six-year term of confinement, and commute the six-year term of extended supervision to five years, thereby putting the matter to rest without further proceedings.

¶ 47. However, under closer scrutiny, we conclude that Wis. Stat. § 973.13 does not apply in this case. In State v. Holloway, 202 Wis. 2d 694, 551 N.W.2d 841 (Ct. App. 1996), the trial court originally sentenced the defendant to concurrent sentences as a repeater. Id. at 696. Thereafter, the court commuted the sentences to the máximums permitted for the underlying offenses because the repeater allegations were not properly proven. Id. at 696-97. However, the court ordered that the new commuted sentences be consecutive rather than concurrent. Id. at 697. On appeal, the defendant challenged this change in the structure of the sentence. We held that the change was proper because "the premise and goals of the prior sentence have been frustrated." Id. at 700. In considering § 973.13, we explained:

On the issue before us, § 973.13, Stats., is more remarkable for what it does not say than what it does. The statute clearly invalidates the excess portion of an enhanced repeater sentence which is not properly proven [and in excess of the maximum penalty] .... However, the statute does not otherwise address other components or conditions of the sentence which do not directly bear upon the duration of the term imposed.
Sentences are to be individualized to meet the facts of the particular case and the characteristics of the individual defendant.... We should not restrict the discretionary authority of a court at resentencing when the underlying premise for an original sentence no longer exists. Resentencing is generally the proper method of correcting a sentencing error.

Holloway, 202 Wis. 2d at 698, 699-700 (citations omitted).

¶ 48. As we have explained, a sentence under the truth-in-sentencing law consists of a term of confinement and a term of extended supervision. These two components form a symbiotic relationship with the length of one necessarily influencing the length of the other and the overall length of the bifurcated sentence. Although the sentencing court imposes two discrete terms — one of confinement and one of extended supervision — it remains that the end product is but a single sentence. When a crucial component of such a sentence is overturned, it is proper and necessary for the sentencing court to revisit the entire question. If we held otherwise and simply confirmed the term of confinement and commuted the extended supervision to five years pursuant to Wis. Stat. § 973.13, we would produce a sentence based on mathematics, rather than an individualized sentence based on "the facts of the particular case and the characteristics of the individual defendant." Holloway, 202 Wis. 2d at 699-700.

¶ 49. We therefore reverse the postconviction order rejecting Volk's challenge to the sentence for aggravated battery and remand the matter to the trial court for resentencing consistent with the analysis of the law set forth in this opinion.

CONCLUSION

¶ 50. We affirm Volk's conviction for aggravated battery. We reverse the sentencing portion of the judgment of conviction and the order denying postconviction relief. We remand for resentencing on the aggravated battery conviction.

By the Court. — Judgment affirmed in part and reversed in part; order reversed and cause remanded with directions.

       The jury also found Volk guilty of disorderly conduct arising out of the same incident.

       Volk was convicted of aggravated battery pursuant to Wis. Stat. § 940.19(6) and as a repeat offender pursuant to Wis. Stat. § 939.62 (1999-2000). All statutory references are to the 1999-2000 version unless otherwise indicated.

       WISCONSIN Stat. § 904.04 governs character and "other acts" evidence and provides in relevant part:
      (1) Character evidence generally. Evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
      (a) Character of accused. Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same;
      (2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

       Because we conclude that Love's testimony was properly admitted, we need not address the State's further argument that its admission was harmless error.

       WISCONSIN Stat. § 973.01 provides in relevant part:
      Bifurcated sentence of imprisonment and extended supervision. (1) Bifurcated sentence required. Except as provided in sub. (3), whenever a court sentences a person to imprisonment in the Wisconsin state prisons for a felony committed on or after December 31, 1999, the court shall impose a bifurcated sentence that consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113.
      (2) Structure of bifurcated sentences. The court shall ensure that a bifurcated sentence imposed under sub. (1) complies with all of the following:
      (b) Imprisonment portion of bifurcated sentence. The portion of the bifurcated sentence that imposes a term of confinement in prison may not be less than one year, subject to any minimum sentence prescribed for the felony, and, except as provided in par. (c), may not exceed whichever of the following is applicable:

        4. For a Class D felony, the term of confinement in prison may not exceed 5 years.
      (c) Penalty enhancement. The maximum term of confinement in prison specified in par. (b) may be increased by any applicable penalty enhancement. If the maximum term of confinement in prison specified in par. (b) is increased under this paragraph, the total length of the bifurcated sentence that may be imposed is increased by the same amount.

       WISCONSIN Stat. § 939.62(l)(b) provides:
      Increased penalty for habitual criminality. (1) If the actor is a repeater .. . the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
      (b) A maximum term of more than one year but not more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony.

       Following the hearing on his postconviction motion, Volk wrote a series of letters to the trial court. In the first letter, he stated that he was withdrawing his challenge to the term of extended supervision. In his second letter, he stated that he was reinstating that challenge. However, in this same letter, Volk conceded that the trial court could enhance a term of extended supervision, but if it did so, the court was obligated to reduce the term of confinement to less than the maximum of five years. We confess that we do not entirely understand Volk's reasoning as expressed in this second letter. Regardless, on appeal, Volk returns to his original argument that a term of extended supervision is not subject to penalty enhancement.

       We note that in so arguing, Volk cites to the court of appeals opinion, State v. Jones, 2002 WI App 29, 250 Wis. 2d 77, 640 N.W.2d 151, which was subsequently withdrawn by order of the supreme court, see 2002 WI 53, 252 Wis. 2d 592, 645 N.W.2d 610. Our opinion on this issue tracks, in part, some of the language and reasoning of our colleagues' opinion in Jones.

       This report can be accessed at www.doa.state.wi.us/ criminal penalities.pdf. We note the misspelling of penalties as "penalities" on the web page address.

       Unfortunately, neither party cited this legislative history to the trial court.