State v. Jack B. Gramza

2020 WI App 81

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2020AP100-CR†

† Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JACK B. GRAMZA,

DEFENDANT-APPELLANT.†

Opinion Filed: November 10, 2020
Submitted on Briefs: September 9, 2020
Oral Argument:

JUDGES: Brash, P.J., Dugan and Donald, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Andrea Taylor Cornwall, assistant state public defender.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Joshua L. Kaul, attorney general, and Sonya Bice Levinson,
assistant attorney general.
2020 WI App 81

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 10, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2020AP100-CR Cir. Ct. No. 2018CF3965

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JACK B. GRAMZA,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
DAVID L. BOROWSKI, Judge. Affirmed.

Before Brash, P.J., Dugan and Donald, JJ.

¶1 BRASH, P.J. Jack B. Gramza appeals an order of the circuit court
denying his request for sentence modification upon his successful completion of the
Substance Abuse Program (SAP). Under the statute authorizing this program,
within thirty days of completion, the defendant’s sentence is required to be
No. 2020AP100-CR

modified, converting the remaining period of initial confinement to extended
supervision, and the defendant is to be released.

¶2 Gramza had pled guilty to operating a motor vehicle while intoxicated
as a seventh offense (OWI-7th), which, by statute, requires a mandatory minimum
term of initial confinement of three years. However, Gramza completed the SAP
approximately six months into his sentence, and seeks release pursuant to the SAP
statute. He further argues that failing to authorize his release under the SAP would
violate the double jeopardy clause.

¶3 The circuit court interpreted the conflict between the OWI-7th statute
and the SAP statute as requiring that the mandatory minimum term of initial
confinement for an OWI-7th be served by a defendant, regardless of whether the
SAP was completed. The circuit court also rejected Gramza’s double jeopardy
argument. We agree, and therefore affirm the order of the circuit court.1

BACKGROUND

¶4 Gramza was charged with OWI-7th in August 2018. A Franklin
police officer had conducted a traffic stop after observing Gramza deviating from
his lane and changing lanes without signaling. Upon making contact with Gramza,
the officer noted that Gramza “exhibited bloodshot/glassy eyes, slurred speech, and
the odor of intoxicants emanating from his person.” Gramza’s blood alcohol content
was found to be 0.177.

1
Gramza’s plea was taken by the Honorable Pedro Colon, who also imposed Gramza’s
sentence. We refer to Judge Colon as the trial court. The order at issue in this appeal was entered
by the Honorable David L. Borowski, who was assigned this matter as a result of judicial rotation.
We refer to Judge Borowski as the circuit court.

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No. 2020AP100-CR

¶5 Gramza pled guilty to the charge. As part of the plea agreement, the
State agreed to recommend three years of initial confinement—which is the
statutory minimum period of initial confinement for a seventh, eighth, or ninth OWI
offense, pursuant to WIS. STAT. § 346.65(2)(am)6. (2017-18)2—along with three
years of extended supervision.

¶6 At the plea and sentencing hearing held on March 27, 2019, the trial
court noted that a conviction for OWI-7th requires a mandatory minimum term of
three years of initial confinement, and that this was a severe penalty. However, the
court explained that the legislature “continues to lengthen” the sentences for
multiple OWI offenses to protect society from the dangers of drunk driving.
Furthermore, the court observed that someone with seven, eight, or nine OWI
offenses has had “additional clear warnings” that this is an offense that will be
enforced.

¶7 The trial court then imposed the sentence recommended by the
State: the mandatory minimum three years of initial confinement, to be followed
by three years of extended supervision. Additionally, the court stated that it “would
like [Gramza] to get treatment” to enable him to “get away from this dependency
[on] alcohol.” Therefore, the court made Gramza eligible for the SAP, without
including any explicit conditions on that eligibility.

¶8 Approximately six months later, on October 1, 2019, the Department
of Corrections (DOC) filed a letter informing the circuit court that Gramza had
successfully completed the SAP. Therefore, in accordance with WIS. STAT.
§ 302.05, the DOC requested that the court authorize the conversion of Gramza’s

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2020AP100-CR

remaining time of initial confinement to extended supervision, such that Gramza
could be released within thirty days of the court’s receipt of the notice.

¶9 The circuit court questioned its authority to authorize Gramza’s
release after he had served only six months of a three year minimum term of initial
confinement as mandated by the legislature. The court therefore ordered the DOC
and the State to submit briefs addressing this issue.

¶10 The DOC asserted that the circuit court did indeed have the authority
to authorize Gramza’s release. The DOC argued that the conflict between the
statutes relating to the mandatory minimum term of initial confinement for an
OWI-7th and mandatory release upon completion of the SAP could be harmonized
because the OWI statute requires the mandatory minimum sentence be imposed, but
does not require that it be fully served. The DOC further noted that a defendant’s
release under the SAP does not change the overall term of the bifurcated sentence.
The State took no position on the matter, but pointed out that determining eligibility
for the SAP was within the trial court’s discretion, but it appeared that releasing a
defendant after its successful completion was non-discretionary.

¶11 Gramza also filed a brief, agreeing with the points made by both the
DOC and the State. Gramza further argued that he had a “legitimate expectation of
finality in the sentence imposed,” and that the failure to authorize his release after
he completed the SAP would result in a double jeopardy violation.

¶12 The circuit court rejected all of those arguments. The court stated that
it presumed that in requiring a mandatory minimum term of initial confinement for
an OWI-7th conviction, the legislature intended for that sentence to be served by the
defendant. As such, harmonizing the conflicting statutes in the manner urged by the
DOC and Gramza would have the effect of negating the legislature’s mandate for a

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mandatory minimum sentence for OWI-7th, an interpretation that made “no sense”
to the court.

¶13 The circuit court further noted that while the SAP statute requires a
defendant’s release, the OWI-7th statute also has a requirement of a mandatory
minimum sentence, and the court was not persuaded “that the ‘shall’ language in
one statute is mandatory while in the other it is not.” For that reason, the court
rejected Gramza’s double jeopardy argument, stating that Gramza did not have a
legitimate expectation of serving less than the mandatory minimum sentence for his
conviction of this offense.

¶14 As a result, the circuit court denied the DOC’s request to authorize
Gramza’s release. This appeal follows.

DISCUSSION

¶15 The conflicting mandatory language of the statutes at issue here
requires that we conduct a statutory interpretation analysis. “[T]he purpose of
statutory interpretation is to determine what the statute means so that it may be given
its full, proper, and intended effect.” State ex rel. Kalal v. Circuit Court for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory interpretation
presents a question of law that this court reviews de novo. DOR v. River City Refuse
Removal, Inc., 2007 WI 27, ¶26, 299 Wis. 2d 561, 729 N.W.2d 396.

¶16 In sentencing Gramza, the trial court emphasized that, being that this
was his seventh OWI conviction, the mandatory minimum term of initial
confinement provision of WIS. STAT. § 346.65(2)(am)6. was applicable: “[t]he
court shall impose a bifurcated sentence … and the confinement portion of the
bifurcated sentence imposed on the person shall be not less than 3 years.” Id. “The

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general rule is that the word ‘shall’ is presumed mandatory when it appears in a
statute.” Rotfeld v. DNR, 147 Wis. 2d 720, 726, 434 N.W.2d 617 (Ct. App. 1988)
(citation omitted).

¶17 However, the trial court also chose to make Gramza eligible for the
SAP. The statute regulating that program also contains mandatory language:

Upon being informed by the [DOC] that an inmate whom the
court sentenced … has successfully completed a [SAP], the
court shall modify the inmate’s bifurcated sentence as
follows:

a. The court shall reduce the term of
confinement in prison portion of the inmate’s bifurcated
sentence in a manner that provides for the release of the
inmate to extended supervision within 30 days of the date on
which the court receives the information from the [DOC].

b. The court shall lengthen the term of extended
supervision imposed so that the total length of the bifurcated
sentence originally imposed does not change.

WIS. STAT. § 302.05(3)(c)2. (emphasis added).

¶18 Because the trial court made Gramza eligible for the SAP without
providing any explicit conditions on that eligibility, there is a conflict in attempting
to apply the provisions of both of these relevant statutes. “When two statutes
conflict, a court is to harmonize them … [by] scrutinizing both statutes and
construing each in a manner that serves its purpose.” State v. Szulczewski, 216
Wis. 2d 495, 503, 574 N.W.2d 660 (1998).

¶19 Gramza argues, as the DOC asserted in its brief to the circuit court,
that these statutes can be harmonized by interpreting the OWI-7th statute as only
requiring that the mandatory minimum term of initial confinement be imposed, since
the statute does not state a requirement that this term must be fully served. Gramza
further contends that this argument is supported by the fact that the SAP statute,

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No. 2020AP100-CR

which excludes participation of defendants who are convicted of certain crimes,
does not exclude the participation of anyone convicted under the OWI-7th statute.

¶20 In conducting statutory interpretation, the legislative intent of a statute
is “primarily deduced from the language which the legislature has chosen to use.”
See Fond Du Lac Cnty. v. Town of Rosendale, 149 Wis. 2d 326, 332, 440 N.W.2d
818 (Ct. App. 1989). However, our supreme court previously interpreted an earlier
version of the OWI-7th statute in State v. Williams, 2014 WI 64, 355 Wis. 2d 581,
852 N.W.2d 467, which provides some guidance for our analysis here.

¶21 In Williams, the issue was whether the statute in question required a
sentencing court to impose a bifurcated sentence.3 Id., ¶3. The court found the
earlier version of the statute to be ambiguous on this issue, and turned to the
legislative history of the statute for guidance in its interpretation. Id., ¶19. As
relevant here, the court noted the “general trend” of the legislature toward
mandating “harsher mandatory minimum sentences” by “increasing penalties
depending on the number of OWIs the offender has committed[.]” Id., ¶30.
Furthermore, the court quoted the Legislative Reference Bureau’s analysis of the
amendment that increased the minimum term of initial confinement for a conviction
under this statute: “[t]he substitute amendment requires a person who commits a
seventh, eighth, or ninth OWI-related offense to serve a minimum period of
confinement [of] three years in prison under a bifurcated sentence[.]” Id., ¶40
(emphasis added; footnote omitted).

3
While this court’s decision in State v. Williams was being reviewed by our supreme
court, the legislature amended the OWI-7th statute to include language clarifying the requirement
that a bifurcated sentence must be imposed in those cases. See id., 2014 WI 64, ¶¶56-58, 355 Wis.
2d 581, 852 N.W.2d 467 (Abrahamson, C.J., concurring).

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No. 2020AP100-CR

¶22 This analysis by the Williams court is effectively fatal to Gramza’s
argument that the OWI-7th statute should be interpreted as mandating only that a
three year term of initial confinement be imposed, without requiring that this term
be fully served. In conducting statutory interpretation, we must construe a statute
“reasonably, to avoid absurd or unreasonable results.” See Kalal, 271 Wis. 2d 633,
¶46. To adopt the interpretation argued by Gramza would ignore the legislative
history of the statute described in Williams; namely, the intent of the legislature to
increase the penalties for multiple OWI convictions by mandating a minimum term
of initial confinement that must be served. See id., 355 Wis. 2d 581, ¶¶30, 40. Such
an interpretation would lead to the unreasonable result of allowing the mandatory
minimum sentence for an OWI-7th conviction to be circumvented, directly
contradicting the intent of the legislature. See Kalal, 271 Wis. 2d 633, ¶46.

¶23 Turning to the SAP statute, Gramza argues that because that statute
does not exclude from participation those convicted of an OWI-7th, see WIS. STAT.
§ 302.05(3)(a)1., this indicates that the legislature intended for the provisions of the
SAP statute to be applied—without fail—to those convicted of that crime upon the
successful completion of the program, even when the mandatory minimum term of
initial confinement has not been fully served. We disagree.

¶24 The conflict between the OWI-7th statute and the SAP statute in this
case arose in part because of how Gramza’s sentence was fashioned: the trial court
imposed the three year mandatory minimum term of initial confinement while also
making Gramza eligible for the SAP, without placing any conditions on that
eligibility. Since Gramza completed the SAP only six months into his sentence, it
is therefore not possible to construe the SAP statute to exercise its full effect—
granting him early release to extended supervision—while still meeting the OWI-
7th statute’s requirement of serving the full three year term of initial confinement.

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No. 2020AP100-CR

Compare State v. Lynch, 2006 WI App 231, ¶18, 297 Wis. 2d 51, 724 N.W.2d 656
(“While one purpose of the [SAP] is undoubtedly to encourage inmates to
participate in treatment for substance abuse, it is also significant that the result of
successful participation is a reduction in the time a convicted person must serve in
confinement.”) with Williams, 355 Wis. 2d 581, ¶40 (interpreting the OWI-7th
statute as requiring “a person who commits a seventh, eighth, or ninth OWI-related
offense to serve a minimum period of confinement [of] three years in prison under
a bifurcated sentence” (emphasis added; footnote omitted)).

¶25 However, we note that a defendant convicted of an OWI-7th who
receives a term of initial confinement that is longer than the mandatory minimum
would be able to benefit from the SAP statute’s early release provision. In other
words, there are conditions under which the requirements of both statutes could be
applied which would allow for both statutes to fully serve their purposes. See
Szulczewski, 216 Wis. 2d at 503.

¶26 We therefore conclude that the most reasonable interpretation of these
statutes, when considered in conjunction with each other under these circumstances,
is that the mandatory minimum term of initial confinement of the OWI-7th statute
must be served in full by Gramza, regardless of his successful completion of the
SAP. See Kalal, 271 Wis. 2d 633, ¶46.

¶27 Gramza further contends that because the trial court granted him
eligibility for the SAP, the subsequent denial of his release upon successful
completion is a double jeopardy violation. The constitutional guarantee against
double jeopardy prohibits increasing a sentence that has already been imposed “‘[i]f
a defendant has a legitimate expectation of finality’” with regard to that sentence.
State v. Jones, 2002 WI App 208, ¶9, 257 Wis. 2d 163, 650 N.W.2d 844 (citation

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No. 2020AP100-CR

omitted; brackets in Jones). “Whether an individual’s constitutional right to be free
from double jeopardy has been violated is a question of law that this court reviews
de novo.” State v. Robinson, 2014 WI 35, ¶18, 354 Wis. 2d 351, 847 N.W.2d 352
(citation omitted).

¶28 Gramza’s argument is not compelling. The record indicates that the
trial court very clearly explained at Gramza’s sentencing hearing that it was required
to impose a three year mandatory minimum term of initial confinement for his OWI-
7th conviction. In fact, the court made several comments relating to this mandatory
minimum term, including a remark that even considering Gramza’s age at that
time—fifty-seven years old—he would still have “plenty of life left” after serving
the term of initial confinement. Thus, Gramza’s assertion that he had a legitimate
expectation of serving less than the three year term is not supported by the record.
See Jones, 257 Wis. 2d 163, ¶9.

¶29 Furthermore, we have already concluded that the most reasonable
interpretation of the OWI-7th statute is that the three year mandatory minimum term
of initial confinement must be served in full. Therefore, Gramza’s double jeopardy
argument—which relies on the incorrect presumption that he was entitled to early
release under the SAP despite that mandatory minimum term—fails.

¶30 Accordingly, we affirm the order of the circuit court denying
Gramza’s request for sentence modification upon his successful completion of the
SAP.

By the Court.—Order affirmed.

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