Chapter 973

973.013 Annotation A defendant is automatically prejudiced when the prosecutor materially and substantially breaches a plea agreement. New sentencing is required. State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), 94-3364. But see State v. Nietzold, 2023 WI 22, 406 Wis. 2d 349, 986 N.W.2d 795, 21-0021.

973.013 Annotation When resentencing a defendant, a court should consider all information relevant about the defendant, including information not existing or not known when sentence was first passed. State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997), 94-2001.

973.013 Annotation A marital relationship between a case’s prosecutor and the presentence report writer was sufficient to draw the objectivity of the report into question. It was error not to strike the report. State v. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997), 96-1712.

973.013 Annotation Evidence of unproven offenses involving the defendant may be considered in sentencing decisions, as the court must consider whether the crime is an isolated act or part of a pattern of conduct. State v. Fisher, 211 Wis. 2d 665, 565 N.W.2d 565 (Ct. App. 1997), 96-1764.

973.013 Annotation A defendant’s argument that the defendant’s sentence was excessive in relation to other sentences for similar crimes committed in the same county was without merit. There is no requirement that persons convicted of similar offenses must receive similar sentences. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.

973.013 Annotation That a conviction followed an Alford, 400 U.S. 25 (1970), plea did not prevent requiring the defendant, as a condition, to complete a treatment program that required acknowledging responsibility for the crime that resulted in the conviction. The imposition of the condition did not violate the defendant’s due process rights. There is nothing inherent in an Alford plea that gives a defendant any rights as to punishment. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 579 N.W.2d 698 (1998), 96-2441.

973.013 Annotation When a victim’s criminal record supports a defendant’s version of a crime, the gravity of which crime is a sentencing factor, the criminal record should be admitted as evidence at the defendant’s sentencing hearing. State v. Spears, 227 Wis. 2d 495, 596 N.W.2d 375 (1999), 97-0536.

973.013 Annotation Proper sentencing discretion can exist without delineation of sentencing factors; what is required is consideration of the sentencing factors. When the same judge presides at sentencing after probation revocation and the original sentencing, the judge does not have to restate the reasons supporting the original sentencing, which is implicitly adopted. State v. Wegner, 2000 WI App 231, 239 Wis. 2d 96, 619 N.W.2d 289, 99-3079.

973.013 Annotation It is entirely reasonable that a competency examination designed to address a defendant’s ability to understand the proceedings and assist counsel may also address issues of future dangerousness, which a court may reasonably consider when gauging the need for public protection in setting a sentence. State v. Slagoski, 2001 WI App 112, 244 Wis. 2d 49, 629 N.W.2d 50, 00-1586.

973.013 Annotation Spears, 227 Wis. 2d 495 (1999), does not stand for the proposition that a defendant may, at sentencing, present any and all evidence that the defendant wishes to present. State v. Robinson, 2001 WI App 127, 246 Wis. 2d 180, 629 N.W.2d 810, 00-1170.

973.013 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.

973.013 Annotation In sentencing after probation revocation, if the judge did not preside at the original sentencing, the judge must be able to rely upon the entire record, including comments at the first sentencing. When the record at the second sentencing reflected no recognition by the second judge of trial testimony, the presentence investigation report, or the trial judge’s comments on the severity of the offense, the sentence could not stand. State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165, 01-0498.

973.013 Annotation A court’s correction of an invalid sentence by increasing the punishment does not constitute double jeopardy; the initial sentence being invalid, the second sentence is the only valid sentence imposed. An increased sentence is permissible at resentencing only when it is based upon a desire to implement the original dispositional scheme from the first sentencing and when the initial conviction and sentence are invalid, the resentencing court has no new information or newly known information, and the resentencing court seeks to impose a greater sentence. State v. Helm, 2002 WI App 154, 256 Wis. 2d 285, 647 N.W.2d 405, 01-2398.

973.013 Annotation In fixing a sentence within statutory limits, the judge may consider the defendant’s false testimony observed by the judge during trial. United States v. Grayson, 438 U.S. 41, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978).

973.013 Annotation The Lodestar of Personal Responsibility. Brennan. 88 MLR 365 (2004).

973.013 Annotation Constitutional Law—Eighth Amendment—Appellate Sentence Review. Graupner. 1976 WLR 655.

973.0135 973.0135 Sentence for certain serious felonies; parole eligibility determination.

973.0135(1) (1) In this section:

973.0135(1)(a) (a) “Prior offender” means a person who meets all of the following conditions:

973.0135(1)(a)1. 1. The person has been convicted of a serious felony on at least one separate occasion at any time preceding the serious felony for which he or she is being sentenced.

973.0135(1)(a)2. 2. The person’s conviction under subd. 1. remains of record and unreversed.

973.0135(1)(a)3. 3. As a result of the conviction under subd. 1., the person was sentenced to more than one year of imprisonment.

973.0135(1)(b) (b) “Serious felony” means any of the following:

973.0135(1)(b)1. 1. Any felony under s. 961.41 (1), (1m) or (1x) if the felony is punishable by a maximum prison term of 30 years or more.

973.0135(1)(b)2. 2. Any felony under s. 940.09 (1), 1999 stats., s. 943.23 (1m) or (1r), 1999 stats., s. 948.35 (1) (b) or (c), 1999 stats., s. 948.36, 1999 stats., or s. 943.23 (1g), 2021 stats., or s. 940.01, 940.02, 940.03, 940.05, 940.09 (1c), 940.16, 940.19 (5), 940.195 (5), 940.198 (2) (a) or (c), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.231 (1), 943.32 (2), 946.43 (1m), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.06, 948.07, 948.075, 948.08, or 948.30 (2).

973.0135(1)(b)3. 3. The solicitation, conspiracy or attempt, under s. 939.30, 939.31 or 939.32, to commit a Class A felony.

973.0135(1)(b)4. 4. A crime at any time under federal law or the law of any other state or, prior to April 21, 1994, under the law of this state that is comparable to a crime specified in subd. 1., 2. or 3.

973.0135(2) (2) Except as provided in sub. (3), when a court sentences a prior offender to imprisonment in a state prison for a serious felony committed on or after April 21, 1994, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:

973.0135(2)(a) (a) The person is eligible for parole under s. 304.06 (1).

973.0135(2)(b) (b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 304.06 (1) and may not set a date that occurs later than two-thirds of the sentence imposed for the felony.

973.0135(3) (3) A person is not subject to this section if the current serious felony is punishable by life imprisonment.

973.0135(4) (4) If a prior conviction is being considered as being covered under sub. (1) (b) 4. as comparable to a felony specified under sub. (1) (b) 1., 2. or 3., the conviction may be counted as a prior conviction under sub. (1) (a) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under sub. (1) (b) 1., 2. or 3. if committed by an adult in this state.

973.0135 History History: 1993 a. 194, 483; 1995 a. 448; 1997 a. 219, 283, 295; 1999 a. 32, 188; 2001 a. 109; 2007 a. 116; 2015 a. 366; 2021 a. 76; 2021 a. 240 s. 30; 2023 a. 10.

973.014 973.014 Sentence of life imprisonment; parole eligibility determination; extended supervision eligibility determination.

973.014(1) (1) Except as provided in sub. (2), when a court sentences a person to life imprisonment for a crime committed on or after July 1, 1988, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:

973.014(1)(a) (a) The person is eligible for parole under s. 304.06 (1).

973.014(1)(b) (b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may set any later date than that provided in s. 304.06 (1), but may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 304.06 (1).

973.014(1)(c) (c) The person is not eligible for parole. This paragraph applies only if the court sentences a person for a crime committed on or after August 31, 1995, but before December 31, 1999.

973.014(1g) (1g) 

973.014(1g)(a) (a) Except as provided in sub. (2), when a court sentences a person to life imprisonment for a crime committed on or after December 31, 1999, the court shall make an extended supervision eligibility date determination regarding the person and choose one of the following options:

973.014(1g)(a)1. 1. The person is eligible for release to extended supervision after serving 20 years.

973.014(1g)(a)2. 2. The person is eligible for release to extended supervision on a date set by the court. Under this subdivision, the court may set any later date than that provided in subd. 1., but may not set a date that occurs before the earliest possible date under subd. 1.

973.014(1g)(a)3. 3. The person is not eligible for release to extended supervision.

973.014(1g)(b) (b) When sentencing a person to life imprisonment under par. (a), the court shall inform the person of the provisions of s. 302.114 (3) and the procedure for petitioning under s. 302.114 (5) for release to extended supervision.

973.014(1g)(c) (c) A person sentenced to life imprisonment under par. (a) is not eligible for release on parole.

973.014(2) (2) When a court sentences a person to life imprisonment under s. 939.62 (2m) (c), the court shall provide that the sentence is without the possibility of parole or extended supervision.

973.014 History History: 1987 a. 412; 1989 a. 31; 1993 a. 289; 1995 a. 48; 1997 a. 283, 326; 1999 a. 32.

973.014 Annotation The constitutionality of this section is upheld. State v. Borrell, 167 Wis. 2d 749, 482 N.W.2d 883 (1992).

973.014 Annotation The denial of presentence confinement credit when parole was established under sub. (2) [now sub. (1) (b)] was constitutional. State v. Chapman, 175 Wis. 2d 231, 499 N.W.2d 222 (Ct. App. 1993).

973.014 Annotation Sub. (1) (b) allows a circuit court to impose a parole eligibility date beyond a defendant’s expected lifetime. State v. Setagord, 211 Wis. 2d 397, 565 N.W.2d 506 (1997), 95-0207.

973.014 Annotation A trial court sentencing a defendant under sub. (1) (b), exercising its discretion, may or may not give credit for presentence incarceration. State v. Seeley, 212 Wis. 2d 75, 567 N.W.2d 897 (Ct. App. 1997), 96-1939.

973.014 Annotation Parole eligibility is not a statutorily or constitutionally necessary component of a valid plea colloquy in a case in which a life sentence is imposed. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999), 97-3217.

973.014 Annotation The U.S. Supreme Court in Miller, 576 U.S. 460 (2012), did not foreclose a sentencer’s ability to sentence a juvenile to life without the possibility of parole in homicide cases, but required sentencing courts to take into account how children are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Thus, it is not unconstitutional to sentence a juvenile to life imprisonment without the possibility of supervised release for intentional homicide under sub. (1g) (a) 3. if the circumstances warrant it. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876.

973.014 Annotation The mandatory minimum of 20 years’ imprisonment provided by sub. (1g) (a) 1. as applied to children does not violate the prohibitions against cruel and unusual punishment contained in the U.S. and Wisconsin constitutions. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876.

973.015 973.015 Special disposition.

973.015(1m) (1m) 

973.015(1m)(a) (a)

973.015(1m)(a)1. 1. Subject to subd. 2. and except as provided in subd. 3., when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition. This subsection does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under s. 343.23 (2) (a).

973.015(1m)(a)2. 2. The court shall order at the time of sentencing that the record be expunged upon successful completion of the sentence if the offense was a violation of s. 942.08 (2) (b), (c), or (d) or (3), and the person was under the age of 18 when he or she committed it.

973.015(1m)(a)3. 3. No court may order that a record of a conviction for any of the following be expunged:

973.015(1m)(a)3.a. a. A Class H felony, if the person has, in his or her lifetime, been convicted of a prior felony offense, or if the felony is a violent offense, as defined in s. 301.048 (2) (bm), or is a violation of s. 940.32, 948.03 (2), (3), or (5) (a) 1., 2., 3., or 4., or 948.095.

973.015(1m)(a)3.b. b. A Class I felony, if the person has, in his or her lifetime, been convicted of a prior felony offense, or if the felony is a violent offense, as defined in s. 301.048 (2) (bm), or is a violation of s. 948.23 (1) (a).

973.015(1m)(b) (b) A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation. Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record. If the person has been imprisoned, the detaining authority shall also forward a copy of the certificate of discharge to the department.

973.015(2m) (2m) At any time after a person has been convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for a violation of s. 944.30, a court may, upon the motion of the person, vacate the conviction, adjudication, or finding, or may order that the record of the violation of s. 944.30 be expunged, if all of the following apply:

973.015(2m)(a) (a) The person was a victim of trafficking for the purposes of a commercial sex act, as defined in s. 940.302 (1) (a), under s. 940.302 or 948.051 or under 22 USC 7101 to 7112.

973.015(2m)(b) (b) The person committed the violation of s. 944.30 as a result of being a victim of trafficking for the purposes of a commercial sex act.

973.015(2m)(c) (c) The person submitted a motion that complies with s. 971.30, that contains a statement of facts and, if applicable, the reason the person did not previously raise an affirmative defense under s. 939.46 or allege that the violation was committed as a result of being a victim of trafficking for the purposes of a commercial sex act, and that may include any of the following:

973.015(2m)(c)1. 1. Certified records of federal or state court proceedings.

973.015(2m)(c)2. 2. Certified records of approval notices, law enforcement certifications, or similar documents generated from federal immigration proceedings.

973.015(2m)(c)3. 3. Official documentation from a federal, state, or local government agency.

973.015(2m)(c)4. 4. Other relevant and probative evidence of sufficient credibility in support of the motion.

973.015(2m)(d) (d) The person made the motion with due diligence subject to reasonable concern for the safety of himself or herself, family members, or other victims of trafficking for the purposes of a commercial sex act or subject to other reasons consistent with the safety of persons.

973.015(2m)(e) (e) A copy of the motion has been served on the office of the district attorney that prosecuted the case that resulted in the conviction, adjudication, or finding except that failure to serve a copy does not deprive the court of jurisdiction and is not grounds for dismissal of the motion.

973.015(2m)(f) (f) The court in which the motion was made notified the appropriate district attorney’s office of the motion and has given the district attorney’s office an opportunity to respond to the motion.

973.015(2m)(g) (g) The court determines that the person will benefit and society will not be harmed by a disposition.

973.015(3) (3) A special disposition under this section is not a basis for a claim under s. 775.05.

973.015 History History: 1975 c. 39; 1975 c. 189 s. 105; 1975 c. 199; 1983 a. 519; 1991 a. 189; 2003 a. 33, 50, 320; 2009 a. 28; 2011 a. 268; 2013 a. 362; 2015 a. 80, 366.

973.015 Annotation An expunged conviction is not admissible to attack a witness’s credibility. State v. Anderson, 160 Wis. 2d 435, 466 N.W.2d 681 (Ct. App. 1991).

973.015 Annotation This section does not require law enforcement agencies or prosecutors to destroy records relating to an expunged conviction, nor does it prohibit courts from considering the facts underlying an expunged conviction in sentencing in another case. State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, 00-1718. See also State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

973.015 Annotation A reasonable reading of this section is that the legislature included the words “at the time of sentencing” in sub. (1m) (a) 2. to limit the point in time at which the circuit court is to make a decision about expunction and that the phrase “at the time of sentencing” means at the proceeding at which the circuit court announces the sanction. State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, 12-1582.

973.015 Annotation This section does not apply to civil forfeiture violations. The language of sub. (1) (a) [now sub. (1m) (a) 1.] indicates that law violations for which expunction is available relate to laws that include some “period of imprisonment.” Thus, when there is no period of imprisonment associated with a law, that law is not one to which this section applies. Kenosha County v. Frett, 2014 WI App 127, 359 Wis. 2d 246, 858 N.W.2d 397, 14-0006.

973.015 Annotation The only requirements sub. (2) [now sub. (1m) (b)] places on an individual defendant to successfully complete probation are that: 1) the defendant has not been convicted of a subsequent offense; 2) the defendant’s probation has not been revoked; and 3) the defendant has satisfied all the conditions of probation. If a probationer satisfies these three criteria, the probationer has earned expungement and is automatically entitled to expungement of the underlying charge. State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, 13-1163.

973.015 Annotation This section places no burden upon a person who successfully completes probation to petition the circuit court within a certain period of time in order to effectuate the expungement. The detaining or probationary authority must forward the certificate of discharge to the court of record upon the individual defendant’s successful completion of the defendant’s sentence and at that point the process of expungement is self-executing. State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, 13-1163.

973.015 Annotation Nothing in this section grants the circuit court the authority to revisit an expungement decision. State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, 13-1163.

973.015 Annotation The sentencing court did not erroneously exercise its discretion when it considered the fact that the defendant had previously successfully completed supervision in a case in which the record of conviction had been expunged. Leitner, 2002 WI 77, allows consideration of all facts underlying an expunged record of conviction, not just the facts underlying the crime itself provided those facts are not obtained from expunged court records. It does not require interrelated facts between the crime underlying a prior expunged record of conviction and the facts underlying a current criminal conviction. Because the references to the defendant’s expunged record of conviction in the presentence investigation report and at sentencing were obtained from sources other than expunged court records, they were permitted under Leitner. State v. Allen, 2017 WI 7, 373 Wis. 2d 98, 890 N.W.2d 245, 14-2840.

973.015 Annotation In assessing whether to grant expungement, the sentencing court should set forth in the record the facts it considered and the rationale underlying its decision for deciding whether to grant or deny expungement. In exercising discretion, the sentencing court must do something more than simply state whether a defendant will benefit from expungement and that society will or will not be harmed. State v. Helmbrecht, 2017 WI App 5, 373 Wis. 2d 203, 891 N.W.2d 412, 15-2300.

973.015 Annotation “At the time of sentencing” in sub. (1m) (a) 1. means only at the time when sentence is imposed and does not also encompass post-sentencing motions for sentence modification. State v. Arberry, 2018 WI 7, 379 Wis. 2d 254, 905 N.W.2d 832, 16-0866.

973.015 Annotation The relief of vacating and setting a judgment aside under s. 974.06 (3) (d) is designed to address defects with respect to a conviction or sentence, not to provide a second chance or a fresh start as is intended by this section, the expunction statute. Vacatur invalidates the conviction itself, whereas expunction merely deletes the evidence of the underlying conviction from court records. Expunction does not invalidate a conviction. State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

973.015 Annotation The phrase “conditions of probation” in sub. (1m) (b) means conditions set by both the Department of Corrections and the sentencing court, and the provision does not give a circuit court discretionary authority to declare that an individual has “satisfied” the individual’s conditions of probation if the record demonstrates that the individual has violated one or more conditions of probation, including department-imposed conditions. State v. Lickes, 2021 WI 60, 397 Wis. 2d 586, 960 N.W.2d 855, 19-1272.