Chapter 973

973.01(2)(b)6m. 6m. For a Class F felony, the term of confinement in prison may not exceed 7 years and 6 months.

973.01(2)(b)7. 7. For a Class G felony, the term of confinement in prison may not exceed 5 years.

973.01(2)(b)8. 8. For a Class H felony, the term of confinement in prison may not exceed 3 years.

973.01(2)(b)9. 9. For a Class I felony, the term of confinement in prison may not exceed one year and 6 months.

973.01(2)(b)10. 10. For any crime other than one of the following, the term of confinement in prison may not exceed 75 percent of the total length of the bifurcated sentence:

973.01(2)(b)10.a. a. A felony specified in subds. 1. to 9.

973.01(2)(b)10.b. b. An attempt to commit a classified felony if the attempt is punishable under s. 939.32 (1) (intro.).

973.01(2)(c) (c) Penalty enhancement.

973.01(2)(c)1. 1. Subject to the minimum period of extended supervision required under par. (d), the maximum term of confinement in prison specified in par. (b) may be increased by any applicable penalty enhancement statute. 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.

973.01(2)(c)2. 2. If more than one of the following penalty enhancement statutes apply to a crime, the court shall apply them in the order listed in calculating the maximum term of imprisonment for that crime:

973.01(2)(c)2.a. a. Sections 939.621, 939.623, 939.632, 939.635, 939.645, 946.42 (4), 961.442, 961.46, and 961.49.

973.01(2)(c)2.b. b. Section 939.63.

973.01(2)(c)2.c. c. Section 939.62 (1) or 961.48.

973.01(2)(d) (d) Minimum and maximum term of extended supervision. The term of extended supervision may not be less than 25 percent of the length of the term of confinement in prison imposed under par. (b) and, for a classified felony, is subject to whichever of the following limits is applicable:

973.01(2)(d)1. 1. For a Class B felony, the term of extended supervision may not exceed 20 years.

973.01(2)(d)2. 2. For a Class C felony, the term of extended supervision may not exceed 15 years.

973.01(2)(d)3. 3. For a Class D felony, the term of extended supervision may not exceed 10 years.

973.01(2)(d)4. 4. For a Class E, F, or G felony, the term of extended supervision may not exceed 5 years.

973.01(2)(d)5. 5. For a Class H felony, the term of extended supervision may not exceed 3 years.

973.01(2)(d)6. 6. For a Class I felony, the term of extended supervision may not exceed 2 years.

973.01(3) (3) Not applicable to life sentences. If a person is being sentenced for a felony that is punishable by life imprisonment, he or she is not subject to this section but shall be sentenced under s. 973.014 (1g).

973.01(3g) (3g) Earned release program eligibility. When imposing a bifurcated sentence under this section on a person convicted of a crime other than a crime specified in ch. 940 or s. 948.02, 948.025, 948.03, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, 948.085, or 948.095, the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible to participate in the earned release program under s. 302.05 (3) during the term of confinement in prison portion of the bifurcated sentence.

973.01(3m) (3m) Challenge incarceration program eligibility. When imposing a bifurcated sentence under this section on a person convicted of a crime other than a crime specified in ch. 940 or s. 941.29 (1g) (a); a crime specified in s. 941.29 (1g) (b), not including s. 951.02, 951.08, 951.09, or 951.095; or a crime under s. 948.02 (3), 948.055, 948.075, or 948.095, the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible for the challenge incarceration program under s. 302.045 during the term of confinement in prison portion of the bifurcated sentence.

973.01(4) (4) No good time; extension or reduction of term of imprisonment. A person sentenced to a bifurcated sentence under sub. (1) shall serve the term of confinement in prison portion of the sentence without reduction for good behavior. The term of confinement in prison portion is subject to extension under s. 302.113 (3) and, if applicable, to reduction under s. 302.045 (3m), 302.05 (3) (c) 2. a., 302.113 (9g), 973.195 (1r), or 973.198.

973.01(5) (5) Extended supervision conditions. Whenever the court imposes a bifurcated sentence under sub. (1), the court may impose conditions upon the term of extended supervision.

973.01(6) (6) No parole. A person serving a bifurcated sentence imposed under sub. (1) is not eligible for release on parole under that sentence.

973.01(7) (7) No discharge. The department of corrections may not discharge a person who is serving a bifurcated sentence from custody, control and supervision until the person has served the entire bifurcated sentence.

973.01(8) (8) Explanation of sentence.

973.01(8)(a) (a) When a court imposes a bifurcated sentence under this section it shall explain in writing all of the following to the person being sentenced:

973.01(8)(a)1. 1. The total length of the bifurcated sentence.

973.01(8)(a)2. 2. The amount of time the person will serve in prison under the term of confinement in prison portion of the sentence.

973.01(8)(a)3. 3. The amount of time the person will spend on extended supervision, assuming that the person does not commit any act that results in the extension of the term of confinement in prison under s. 302.113 (3).

973.01(8)(a)4. 4. That the amount of time the person must actually serve in prison may be extended as provided under s. 302.113 (3) and that because of extensions under s. 302.113 (3) the person could serve the entire bifurcated sentence in prison.

973.01(8)(a)5. 5. That the person will be subject to certain conditions while on release to extended supervision, and that violation of any of those conditions may result in the person being returned to prison, as provided under s. 302.113 (9).

973.01(8)(ag) (ag) If the court provides under sub. (3g) that the person is eligible to participate in the earned release program under s. 302.05 (3), the court shall also inform the person of the provisions of s. 302.05 (3) (c).

973.01(8)(am) (am) If the court provides under sub. (3m) that the person is eligible for the challenge incarceration program, the court shall also inform the person of the provisions of s. 302.045 (3m).

973.01(8)(b) (b) The court’s explanation under par. (a) 3. of a person’s potential period of extended supervision does not create a right to a minimum period of extended supervision.

973.01 History History: 1997 a. 283; 2001 a. 109; 2003 a. 33; 2005 a. 277; 2007 a. 116, 226; 2009 a. 28; 2011 a. 38, 82; 2017 a. 100; 2021 a. 76, 227.

973.01 Annotation While an offender must meet the eligibility requirements of s. 302.045 (2) to participate in the challenge incarceration program, the trial court must, pursuant to sub. (3m), also determine if the offender is eligible for the program, in the exercise of its sentencing discretion. State v. Steele, 2001 WI App 160, 246 Wis. 2d 744, 632 N.W.2d 112, 00-2864.

973.01 Annotation The exercise of sentencing discretion requires the court to exercise its discretion to create a sentence within the range provided by the legislature that reflects the circumstances of the situation and the particular characteristics of the offender. The court must consider the gravity of the offense, the offender’s character, and the public’s need for protection. The weight given to any factor is left to the trial court’s discretion. State v. Steele, 2001 WI App 160, 246 Wis. 2d 744, 632 N.W.2d 112, 00-2864.

973.01 Annotation If a defendant makes a fraudulent representation to the court, which the court accepts and relies upon in granting a sentence, the court may later declare the sentence void, and double jeopardy does not bar a subsequently increased sentence. State v. Jones, 2002 WI App 208, 257 Wis. 2d. 163, 650 N.W.2d 844, 01-2969.

973.01 Annotation A court may, in specific circumstances, consider credit for time spent in presentence custody as a factor in determining an appropriate sentence. Because the length of the defendant’s presentence custody affected the time the defendant would actually spend in prison and the expected incarceration term impacted the circuit court’s goal that the defendant receive sex offender treatment in an institutional setting while not remaining incarcerated longer than was necessary to receive treatment, presentence credit was appropriately considered. State v. Fenz, 2002 WI App 244, 258 Wis. 2d 281, 653 N.W.2d 280, 01-1434.

973.01 Annotation Events subsequent to sentencing and relating to rehabilitation do not constitute a new sentencing factor justifying sentence modification. State v. Champion, 2002 WI App 267, 258 Wis. 2d 781, 654 N.W.2d 242, 01-1894.

973.01 Annotation Sub. (2) (c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24, 01-3342.

973.01 Annotation Despite the failure to object, a defendant may be entitled to resentencing if the sentence was affected by a trial court’s reliance on an improper factor. State v. Groth, 2002 WI App 299, 258 Wis. 2d 889, 655 N.W.2d 163, 01-3000.

973.01 Annotation When a statutory definition is available that provides a defendant with sufficient notice as to the expected course of conduct and an ascertainable standard for enforcement, the condition of extended supervision is not unconstitutionally vague. The definition of “dating relationship” in s. 813.12 (1) (ag) provided the defendant an objective standard and adequate notice of when a condition applied that required the defendant to introduce any person the defendant was “dating” to the defendant’s supervising agent. State v. Koenig, 2003 WI App 12, 259 Wis. 2d 833, 656 N.W.2d 499, 02-1076.

973.01 Annotation Discussing calculation of confinement and extended supervision for the presumptive minimum for unclassified felonies under this section prior to the February 1, 2003, amendments. State v. Cole, 2003 WI 59, 262 Wis. 2d 167, 663 N.W.2d 700, 02-0681.

973.01 Annotation Resentencing on convictions that remain intact after one or more counts in a multi-count case is vacated is not always required. When the vacated count does not affect the overall dispositional structure of the original sentence, resentencing on the remaining counts is unnecessary. State v. Church, 2003 WI 74, 262 Wis. 2d 678, 665 N.W.2d 141, 01-3100.

973.01 Annotation Subs. (2) and (5) prohibit confinement in any facility as a condition of extended supervision. Absent express authority, a trial court cannot order confinement as a condition of extended supervision. State v. Larson, 2003 WI App 235, 268 Wis. 2d 162, 672 N.W.2d 322, 03-0019.

973.01 Annotation A penalty enhancer under s. 939.62 is not subject to bifurcation, nor is it to be added to the underlying term of imprisonment. State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 N.W.2d 872, 02-0947.

973.01 Annotation Requisite to a prima facie valid sentence is a statement by the trial judge detailing the reasons for selecting the particular sentence imposed. Circuit courts shall: 1) specify the objectives of the sentence on the record and identify the general objectives of greatest importance; 2) describe the facts relevant to those objectives and explain why the particular component parts of the sentence imposed advance the specified objectives; 3) identify the factors that were considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, 01-0051.

973.01 Annotation The sentence imposed shall call for the minimum amount of custody or confinement consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Probation should be the disposition unless confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or it would unduly depreciate the seriousness of the offense. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, 01-0051.

973.01 Annotation The good character of a victim killed as the result of a crime is relevant to sentencing, but the court should not attempt to measure the relative value of the victim’s life. Although there may be circumstances in which the court could weigh the positive contributions and worth of the victim in assessing the harm caused by the crime, it does not follow that there is a right to have a court consider that a victim was a terrible burden on society. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, 01-0051.

973.01 Annotation Sub. (3m) allows a sentencing court to determine not only whether a defendant is eligible for the challenge incarceration program, but also to set a date of eligibility within the term of confinement in prison. State v. Lehman, 2004 WI App 59, 270 Wis. 2d 695, 677 N.W.2d 644, 03-1269.

973.01 Annotation A court, after giving consideration to the relevant sentencing factors, may give disproportionate or controlling weight to a single factor. Balancing the factors is for the trial court. Ordering a lengthy term of supervision in order to enable the defendant to pay a sizeable restitution amount did not violate the right to equal protection. State v. Longmire, 2004 WI App 90, 272 Wis. 2d 759, 681 N.W.2d 534, 03-0300.

973.01 Annotation The defendant’s life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of the defendant’s life in prison, does not have to be taken into consideration by the circuit court. If the circuit court chooses to consider a defendant’s life expectancy, it must explain, on the record, how the defendant’s life expectancy fits into the sentencing objectives. State v. Stenzel, 2004 WI App 181, 276 Wis. 2d 224, 688 N.W.2d 20, 03-2974.

973.01 Annotation Consistent with Lehman, 2004 WI App 59, sub. (3g) allows a sentencing court to determine whether a defendant is eligible for the earned release program and to set a date of eligibility within the term of confinement in prison. State v. White, 2004 WI App 237, 277 Wis. 2d 580, 690 N.W.2d 880, 04-1211.

973.01 Annotation A defendant’s age is a secondary factor that the trial court may, but is not required to, consider in fashioning an appropriate sentence. The trial court, if it considers age, determines whether it should carry any weight. State v. Davis, 2005 WI App 98, 281 Wis. 2d 118, 698 N.W.2d 823, 04-1163.

973.01 Annotation A condition of extended supervision and probation that the defendant have no contact with the drug community was not unconstitutionally overbroad or vague. When the trial court specifically told the defendant not be around any person when, or be in any place where, drugs are being possessed, used, or sold, the condition was clear and gave fair notice of what a drug community was. State v. Trigueros, 2005 WI App 112, 282 Wis. 2d 445, 701 N.W.2d 54, 04-1701.

973.01 Annotation A condition of extended supervision need not directly relate to the defendant’s criminal conduct in the underlying conviction. Trial courts are granted broad discretion in determining conditions necessary for extended supervision subject only to a standard of reasonableness and appropriateness determined by how well the condition serves the dual goals of supervision: 1) rehabilitation of the defendant; and 2) protection of a state or community interest. A condition of extended supervision that the defendant maintain child support payments was reasonable and appropriate. State v. Miller, 2005 WI App 114, 283 Wis. 2d 465, 701 N.W.2d 47, 04-1406.

973.01 Annotation When a person is being sentenced after revocation of extended supervision, discretion can exist without an explicit delineation of the McCleary, 49 Wis. 2d 263 (1971), sentencing factors: 1) the gravity of the offense; 2) the character of the offender; and 3) the need to protect the public. There must be an indication that the court considered those factors. State v. Jones, 2005 WI App 259, 288 Wis. 2d 475, 707 N.W.2d 876, 05-0018.

973.01 Annotation A defendant who requests resentencing due to the circuit court’s use of inaccurate information at the sentencing hearing must show both that the information was inaccurate and that there was actual reliance, not prejudicial reliance, on the inaccurate information by the court in the sentencing. Once actual reliance on inaccurate information is shown, the burden then shifts to the state to prove the error was harmless. State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, 04-0914.

973.01 Annotation Gallion, 2004 WI 42, does not require that the trial court explain why it imposed three years as opposed to one or two. State v. Klubertanz, 2006 WI App 71, 291 Wis. 2d 751, 713 N.W.2d 116, 05-1256.

973.01 Annotation That test of whether the statutory language is capable of being understood by reasonably well-informed persons in two or more different ways is adopted for sentence construction disputes. As it looks for legislative intent when faced with an ambiguous statute, the appellate court should look for the trial court’s sentencing intent when faced with an ambiguous oral sentencing pronouncement. The appellate court is required to determine the trial court’s sentencing intent from other parts of the record, including the judgment of conviction. Without more, the bald recital of a consecutive sentence in the judgment of conviction is insufficient to overcome the presumption of a concurrent sentence. State v. Oglesby, 2006 WI App 95, 292 Wis. 2d 716, 715 N.W.2d 727, 05-1565.

973.01 Annotation Subs. (3g) and (3m) are not applicable to reconfinement under s. 302.113 (9) (am). State v. Hall, 2007 WI App 168, 304 Wis. 2d 504, 737 N.W.2d 13, 06-1439.

973.01 Annotation Sub. (5) does not require a sentencing court to make an ability-to-pay determination when the court orders a contribution payment as a condition of extended supervision. Neither the requirement that an ability-to-pay determination be made when a contribution surcharge is taxed against a defendant under s. 973.06 (1) or when a contribution surcharge is imposed as a condition of probation under former s. 973.09 (1x), 2005 stats., applies to sub. (5). State v. Galvan, 2007 WI App 173, 304 Wis. 2d 466, 736 N.W.2d 890, 06-2052.

973.01 Annotation A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. A trial court is not required to explain the reason for a specific amount of a fine, but some explanation of why the court imposes a fine is required. If the sentencing court intends to impose a fine, the court must determine at the time of sentencing whether a defendant has the ability to pay a fine during the total sentence. The standard for imposing a fine, which is part of the punishment, should require no less consideration of the defendant’s ability to pay than is required as part of an order of restitution. State v. Ramel, 2007 WI App 271, 306 Wis. 2d 654, 743 N.W.2d 502, 07-0355. See also State v. Vesper, 2018 WI App 31, 382 Wis. 2d 207, 912 N.W.2d 418, 17-0173.

973.01 Annotation A defendant has a due process right to be sentenced based on accurate information. State v. Payette, 2008 WI App 106, 313 Wis. 2d 39, 756 N.W.2d 423, 07-1192.

973.01 Annotation The circuit court had the authority to order the defendant to reimburse the defendant’s mother for forfeited bail the defendant’s mother paid, either as restitution or as a condition of extended supervision. State v. Agosto, 2008 WI App 149, 314 Wis. 2d 385, 760 N.W.2d 415, 06-2646.

973.01 Annotation This section and ss. 302.113 (4) and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences. State v. Collins, 2008 WI App 163, 314 Wis. 2d 653, 760 N.W.2d 438, 07-2580.

973.01 Annotation Due process requires that vindictiveness against a defendant for having successfully attacked the defendant’s first conviction play no part in the sentence received after a new trial. When a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must be free from a retaliatory motive. Because retaliatory motives can be complex and difficult to prove, the U.S. Supreme Court has found it necessary to presume an improper vindictive motive, which also applies when a defendant is resentenced following a successful attack on an invalid sentence. However, the presumption stands only when a reasonable likelihood of vindictiveness exists. A new sentence that is longer than the original sentence that implements the original dispositional scheme is not tainted by vindictiveness. State v. Sturdivant, 2009 WI App 5, 316 Wis. 2d 197, 763 N.W.2d 185, 07-2508.

973.01 Annotation A sentencing court may consider uncharged and unproven offenses and facts related to offenses for which the defendant has been acquitted. Sentencing courts are obliged to acquire full knowledge of the character and behavior pattern of the defendant before imposing sentence. State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 N.W.2d 206, 07-1982.

973.01 Annotation A court may certainly tell a defendant what could happen if the defendant’s extended supervision is revoked. But telling a defendant what will happen imperils the defendant’s due process right to an impartial judge at a reconfinement hearing. State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385, 08-2623.

973.01 Annotation A defendant has a constitutional due process right not to be sentenced on the basis of race or gender. The defendant has the burden to prove that the circuit court actually relied on race or gender in imposing its sentence. The standard of proof is clear and convincing evidence. The defendant must provide evidence indicating that it is highly probable or reasonably certain that the circuit court actually relied on race or gender when imposing its sentence. A reasonable observer test is rejected. State v. Harris, 2010 WI 79, 326 Wis. 2d 685, 786 N.W.2d 409, 08-0810.

973.01 Annotation A sentencing court did not violate the 4th amendment or article I, section 11, of the Wisconsin Constitution by setting a condition of extended supervision that allows any law enforcement officer to search the defendant’s person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion. While the condition that the circuit court imposed may have impinged on constitutional rights, it did not violate them as the circuit court made an individualized determination, pursuant to the court’s authority under sub. (5), that the condition was necessary based on the facts in this case involving violence, threats, and a firearm. State v. Rowan, 2012 WI 60, 341 Wis. 2d 281, 814 N.W.2d 854, 10-1398.

973.01 Annotation The suggestion that dismissed charges not be considered in sentencing is not reasonable. It is better practice for the court to acknowledge and discuss dismissed charges, if they are considered by the court, giving them appropriate weight and describing their relationship to a defendant’s character and behavioral pattern, or to the incident that serves as the basis for a plea. The defendant should be given an opportunity to explain or dispute these charges. State v. Frey, 2012 WI 99, 343 Wis. 2d 358, 817 N.W.2d 436, 10-2801.

973.01 Annotation In the context of interpreting plea bargains under contract law, dismissed charges do not have a static meaning. They are a product of the parties’ negotiations, and they mean what the parties intend them to mean. The one exception is that a plea agreement involving one or more dismissed charges cannot limit what the judge may consider at sentencing. Such agreements are contrary to public policy. The term “dismissed outright” should be discontinued. Instead, plea bargains should pin down whether a district attorney is agreeing not to prosecute a dismissed charge. State v. Frey, 2012 WI 99, 343 Wis. 2d 358, 817 N.W.2d 436, 10-2801.

973.01 Annotation Tiepelman, 2006 WI 66, teaches that a defendant is entitled to resentencing if the defendant meets the following two-pronged test: 1) the defendant shows that the information at the original sentencing was inaccurate; and 2) the defendant shows that the court actually relied on the inaccurate information at sentencing. Whether the circuit court actually relied on the incorrect information at sentencing turns on whether the circuit court gave “explicit attention” or “specific consideration” to the inaccurate information, so that the inaccurate information “formed part of the basis for the sentence.” Upon determining that a circuit court actually relied upon inaccurate information at sentencing the reviewing court applies a harmless error analysis. State v. Travis, 2013 WI 38, 347 Wis. 2d 142, 832 N.W.2d 491, 11-0685.

973.01 Annotation The court’s invocations of a religious deity during sentencing were ill-advised. However, not every “ill-advised word” will create reversible error. The transcript reflects that the court’s offhand religious references addressed proper secular sentencing factors. The judge’s comments did not suggest the defendant required a longer sentence to pay religious penance. State v. Betters, 2013 WI App 85, 349 Wis. 2d 428, 835 N.W.2d 249, 12-1339.

973.01 Annotation Sub. (2) (c) 1. is not applicable to misdemeanors. Whereas for a felony, an enhancement lengthens the otherwise applicable “maximum term of confinement in prison,” for a misdemeanor, an enhancement transforms the misdemeanor sentence into a sentence to the state prisons, which then must be bifurcated. Because no “maximum term of confinement in prison” exists for a misdemeanor until the enhancement is applied, once it is applied, it cannot be applied again. State v. Lasanske, 2014 WI App 26, 353 Wis. 2d 280, 844 N.W.2d 417, 12-2016.

973.01 Annotation The limitation under s. 343.30 (5) that no court may suspend or revoke an operating privilege except as authorized by statute precludes not only restrictions on obtaining a physical license document, but also on the privilege to operate a vehicle. A court’s broad authority to fashion appropriate conditions of extended supervision is limited by the provisions of s. 343.30 concerning suspension and revocation of operating privileges by the courts. State v. Hoppe, 2014 WI App 51, 354 Wis. 2d 219, 847 N.W.2d 869, 13-1457.

973.01 Annotation Although a sentencing court may not constitutionally impose a sentence based on national origin, the court may consider a defendant’s relevant illegal conduct related to immigration without denying the defendant due process of law. In this case, the court did not deny the defendant due process in the form of reliance on an improper sentencing factor when the court mentioned the defendant’s immigration status as a minor aspect of the court’s comprehensive evaluation of the defendant’s character. State v. Salas Gayton, 2016 WI 58, 370 Wis. 2d 264, 882 N.W.2d 459, 13-0646.

973.01 Annotation A sentencing court may consider a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment at sentencing without violating a defendant’s right to due process if the risk assessment is used properly with an awareness of the limitations and cautions set forth in the opinion. Risk scores may not be used to determine: 1) whether an offender is incarcerated; or 2) the severity of the sentence. Additionally, risk scores may not be used as the determinative factor in deciding whether an offender can be supervised safely and effectively in the community. Any Presentence Investigation Report (PSI) containing a COMPAS risk assessment must contain a written advisement listing those limitations and informing sentencing courts of certain cautions set forth in the opinion. State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749, 15-0157.

973.01 Annotation Sentencing courts have wide discretion and may impose any conditions of probation or supervision that appear to be reasonable and appropriate. The sentencing court was entitled to err on the side of caution—for the sake of the defendant and the community—and rely upon the investigating officers’ representation that the defendant had a substance abuse history over the representation of the defendant’s counsel that the defendant did not have a substance abuse problem because the defendant had some “clean drug screens” while on supervision and because counsel personally was not aware of a substance abuse problem. State v. Davis, 2017 WI App 55, 377 Wis. 2d 678, 901 N.W.2d 488, 16-1416.

973.01 Annotation In addition to the three main factors a circuit court must consider in determining a defendant’s sentence, the circuit court also may consider secondary factors, including: 1) past record of criminal offense; 2) history of undesirable behavior pattern; 3) defendant’s personality, character, and social traits; 4) result of presentence investigation; 5) vicious or aggravated nature of the crime; 6) degree of defendant’s culpability; 7) defendant’s demeanor at trial; 8) defendant’s age, educational background, and employment record; 9) defendant’s remorse, repentance, and cooperativeness; 10) defendant’s need for close rehabilitative control; 11) the rights of the public; and 12) the length of pretrial detention. State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, 16-0883.

973.01 Annotation A defendant’s failure to express remorse can be used at sentencing only if it is one among other factors and if it receives no undue consideration. State v. Pico, 2018 WI 66, 382 Wis. 2d 273, 914 N.W.2d 95, 15-1799.

973.01 Annotation Under Birchfield, 579 U.S. 438 (2016), it is impermissible to impose criminal penalties for refusing to submit to a warrantless blood draw. A lengthier jail sentence is a criminal penalty. Therefore, the circuit court in this case violated Birchfield by explicitly subjecting the defendant to a more severe criminal penalty because the defendant refused to provide a blood sample absent a warrant. State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120, 16-2483.

973.01 Annotation A circuit court erroneously exercises its sentencing discretion when it actually relies on clearly irrelevant or improper factors. Accordingly, a defendant challenging the defendant’s sentence must prove by clear and convincing evidence that: 1) the challenged factor is irrelevant or improper; and 2) the circuit court actually relied on that factor. Under the improper-factor prong, sentencing factors are proper when they inform valid sentencing objectives including the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. A circuit court may properly entertain a general predisposition, based upon the court’s criminal sentencing experience, so long as that predisposition is not so specific or rigid that it ignores the particular circumstances of the individual offender. Under the actual-reliance prong, the appeals court reviews the sentencing transcript as a whole and assesses any allegedly improper comments within that context. A defendant will fall short of proving actual reliance if the transcript lacks clear and convincing evidence that the factor was the sole cause of a harsher sentence. A defendant will also fail to show actual reliance if a reference to a challenged factor bears a reasonable nexus to a relevant, proper factor. State v. Dodson, 2022 WI 5, 400 Wis. 2d 313, 969 N.W.2d 225, 18-1476.

973.01 Annotation A circuit court erroneously exercises its sentencing discretion when it actually relies on clearly irrelevant or improper factors. To prove actual reliance on an improper factor, a defendant must show that the circuit court imposed a harsher sentence solely because of the improper factor. To be the sole cause of a harsher sentence, an improper factor must stand alone as an independent factor. If a circuit court’s reference to a challenged factor bears a reasonable nexus to a proper sentencing factor, then the circuit court has not imposed sentence based “solely” on the improper factor. State v. Whitaker, 2022 WI 54, 402 Wis. 2d 735, 976 N.W.2d 304, 20-0029.