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Department of Justice Wins Important Criminal Sentencing Case In Wisconsin Supreme Court


MADISON - In an appeal brought by the Wisconsin Department of Justice, the Wisconsin Supreme Court held today that the Division of Hearings and Appeals (DHA) had authority to simultaneously revoke parole and extended supervision. In agreeing with the Department's position, the court resolved an important question about the relationship of sentences imposed for crimes committed before Wisconsin enacted Truth in Sentencing and consecutive sentences imposed for crimes committed after the enactment of Truth in Sentencing.


"This decision has great significance for the Department of Corrections, public safety, and ultimately, Wisconsin taxpayers," Attorney General Van Hollen said. "If the court had decided against our position, then the Department of Corrections would have been required, at great expense, to recalculate the sentences of as many as five thousand inmates, resulting in the release of an unknown number of inmates who had parole and extended supervision revoked under similar circumstances."


The case began in Milwaukee County, where Kevin Thomas (also known as Fernando Thomas) pleaded guilty in 1999 to two counts of forgery and in 2000 to one count of burglary. The Milwaukee County Circuit Court sentenced Thomas to two consecutive indeterminate sentences of two years of imprisonment on the forgeries, and to a consecutive eight-year sentence on the burglary charge. In 2004, the Department of Corrections (DOC) released Thomas to parole and to extended supervision. In 2004, however, Thomas was taken into custody for numerous alleged violations of his parole and extended supervision. The court's decision, which includes a detailed review of Thomas's conduct, can be viewed at the link to the decision, below.


Acting on DOC's request for revocation of Thomas's parole and extended supervision, DHA (the State of Wisconsin agency that decides whether violations of conditions of probation, parole, and extended supervision warrant revocation) held a revocation hearing at which Thomas challenged the authority of DHA to simultaneously revoke his parole and extended supervision. He contended that in enacting Truth in Sentencing, the legislature had created extended supervision as a separate form of community supervision that, when imposed consecutive to an indeterminate (pre-Truth in Sentencing) sentence, could not be revoked until an inmate had completed serving his parole. Thomas argued that because he had not finished serving his parole on the forgery convictions at the time of the revocation hearing, DHA could legitimately revoke his parole but not his extended supervision on the burglary conviction.


DHA rejected Thomas's argument and ordered Thomas's parole and extended supervision revoked. Reviewing DHA's revocation decision, the Milwaukee County Circuit Court affirmed DHA's decision, also rejecting Thomas's challenge to DHA's authority to revoke extended supervision. Thomas appealed. The Wisconsin Court of Appeals agreed with Thomas and overturned the revocation decision. The Department of Justice petitioned the Wisconsin Supreme Court to review the court of appeals' decision.


In reversing the court of appeals, the Supreme Court conducted an extensive review of the statutes governing sentencing both before and after the enactment of Truth in Sentencing. Acknowledging that "the sentencing statutes do not answer directly the issue presented," the court turned to legislative history and case law for "guidance in interpreting the statutes" and held that "under the overall statutory scheme adopted by the legislature, parole and extended supervision are to be served as one continuous period of supervision." The court added, "If we were to adopt Thomas' interpretation of the sentencing statutes, the significance of revocation as a deterrence mechanism would be diminished. As the State of Wisconsin points out in its brief, if we were to treat parole and extended supervision as discrete units that could not be revoked simultaneously, absurd results might follow. If a person were to commit a serious violation of his or her terms of parole or extended supervision, the subsequent revocation of only one unit of extended supervision or parole could be disproportionately small in comparison to the seriousness of the violation."


The court's decision in State ex rel. Kevin Thomas v. David H. Schwarz and Matthew J. Frank, No. 2005AP1487, is available online at:


Assistant Attorney General Christopher G. Wren represented Schwarz and Frank in the appellate courts.