STATE OF WISCONSIN CIRCUIT COURT ORDER RESPONSE TO PETITIONER MOTION TO RECONSIDER WRIT OF HABEAS CORPUS

The Wisconsin Department of Justice is REQUESTED a response on Lee's claim that Section 9311 of the 2009 Wisconsin Act 28 includes retroactive language that applies to Wis. Stat. 973.01 (4m) DISCHARGE.

The plain language of the law states:  Section 9311 Initial applicability; 973.01 (4m) of the statutes first apply to a person sentenced on December 31, 1999.  Singh ¶104, "By enacting 2009 Wis. Act 28, the legislature not only prospectively changed the law of sentencing beginning on October 1, 2009, but also changed all sentences imposed during the retroactivity window for eligible inmates who committed crimes".  Singh ¶93 . . . the "retroactivity window" refers to the time period beginning on December 31, 1999, and ending September 30, 2009 - the day before October 1, 2009.  Section 9311 of 2009 Wis. Act 29 made early discharge available to inmates sentenced for crimes during the retroactivity window.

Therefore, the repeal of Wis. Stat. 973.01 (4m) August 3, 2011 Wis. Act 38 eliminates Lee's eligibility for early discharge ensured that he would serve his full sentence of imprisonment, resulting in a significant risk that he would serve more imprisonment time than if it had not been repealed. 

The ex post facto clauses prohibit this.

MOTION TO RECONSIDER HABEAS RELIEF RELYING ON LEGAL PRECEDENT OF WISCONSIN SUPREME COURT; SINGH V. KEMPER JULY 13, 2016

The Law:

Lee relies on Singh ¶32, "Although 2009 Wis. Act 28 was not in effect when Singh committed
his first offense in 2008 . . . same as Lee in 2000 . . . it was enacted to apply retroactively."  "2009 Wis. Act 28, §§2722, 9311; pursuant to 2009 Wis. Act 28, inmates sentenced on or after December 31, 1999 could begin earning positive adjustment time . . . or discharge Wis. Stat. 973.01 (4m) . . . starting on October 1, 2009."  "2009 Wis. Act 28, Section 2725, 302.113 (7) of the statutes is amended to read:  "Any inmate released to extended supervision under this section is subject to all conditions and rules of extended supervision until the expiration of the term of extended supervision portion of bifurcated sentence or until the department discharge the inmate under s. 973.01 (4m), whichever is appropriate."

Lee relies on Singh ¶93 . . . "retroactivity window"  refers to the time period beginning on December 31, 1999, and ending on September 30, 2009 - the day before Oct. 1, 2009.  Section 9311 (4) of 2009 Wis. Act 28 made PAT (positive adjustment time) . . . made discharge . . . available to inmates sentenced for eligible crimes during retroactivity window."

Lee relies on Singh¶104 "By enacting 2009 Wis. Act 28, the legislature not only prospectively changed the law of sentencing beginning on October 1, 2009, but also changed all sentences imposed during the retroactivity window for eligible inmates who committed eligible crimes.  This change to the law had an immediate mitigating effect on confined persons sentenced during the retroactivity window.  Although at sentencing these persons anticipated that their confinement would last for the entire term specified by the sentencing court, 2009 Wis. Act 28 gave them the opportunity to earn PAT . . . or discharge . . . and thereby reduce the length of their confinement.

Wis. Stat.§973.01 (4m) "the department may discharge a person from extended supervision after he has served 2 years of extended supervision if the person has met the conditions of extended supervision and the reduction is in the interest of justice."   Inmates would be entitled to release from extended supervision to discharge after serving 2 years prior to the expiration of their sentence, assuming the other criteria of the provision are satisfied.  Repeal of the statute deprives the Lee of discharge, therefore repeal of the law violates the ex post facto clauses.  The prohibition on ex post facto laws in the Wisconsin Constitution is found in Article 1, Section 12 and in United States Constitution it is found in Article 1, Sections 9 and 10.

"Trust in the Lord with all your heart; do not depend on your own understanding."  (Proverbs 3:6)

DECISION AND ORDER DENYING AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

THE COURT:

"The provisions of Wis. Stat. 973.01 (4m) were not made retroactive.  Lee was never entitled to receive the benefit of the statute.  Lee cannot state an ex post facto claim about a statute relating to extended supervision that simply came and went while he was incarcerated, therefore, this ex post facto claim fails."