State Ex Rel. Singh v. Kemper

2016 WI 67

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1724
COMPLETE TITLE: State of Wisconsin ex rel. Aman Singh,
Petitioner-Appellant-Petitioner,
v.
Paul Kemper, Warden, Racine Correctional
Institution,
Respondent-Respondent-Cross
Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 353 Wis. 2d 520, 846 N.W.2d 820)
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 43

OPINION FILED: July 13, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 14, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Gerald P. Ptacek

JUSTICES:
CONCURRED: PROSSER, J. concurs (Opinion filed).
CONCURRED/DISSENTED: ZIEGLER, J. and GABLEMAN, J. concur and dissent
(Opinion filed).
DISSENTED: ROGGENSACK, C. J. dissents (Opinion filed).
BRADLEY, R. G., J. and ROGGENSACK, C.
J.(joining part C.) dissent (Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:
For the petitioner-appellant-petitioner, there were briefs
by Thomas L. Shriner, Jr., Brett H. Ludwig, Philip C. Babler,
and Foley & Lardner LLP, Milwaukee and oral argument by Philip
C. Babler.

For the respondent-respondent-cross-petitioner, the cause
was argued by Sara Lynn Shaeffer, assistant district attorney
with whom on the briefs was Brad D. Schimel, attorney general.
 2016 WI 67
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1724
(L.C. No. 2013CV1540)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Aman Singh,

Petitioner-Appellant-Petitioner,

v. FILED
Paul Kemper, Warden, Racine Correctional JUL 13, 2016
Institution,
Diane M. Fremgen
Respondent-Respondent-Cross Clerk of Supreme Court
Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed in

part, reversed in part.

¶1 ANN WALSH BRADLEY, J. We are presented with both a

petition and a cross-petition for review involving the

constitutionality of legislation that repealed and modified a

law, 2009 Wis. Act 28, that allowed inmates the opportunity to
 No. 2013AP1724

earn "positive adjustment time," by which inmates could obtain

early release from prison.1

¶2 The constitutionality of two provisions of 2011 Wis.

Act 38 relating to 2009 Wis. Act 28, which adopted positive

adjustment time, are at issue in this case: (1) the retroactive

1
The mandate is to affirm in part and reverse in part the
opinion of the court of appeals. Five justices are in accord
with this mandate (Abrahamson, J., Ann Walsh Bradley, J.,
Prosser, J., Ziegler, J., and Gableman, J.). Accord on the
individual issues, however, is mixed.

A majority of the court concludes that Wis. Stat. § 973.198
violates the constitutional prohibition against ex post facto
laws because it makes the punishment for an offense more
burdensome after it was committed. Five justices reverse the
court of appeals determination on this issue (Abrahamson, J.,
Ann Walsh Bradley, J., Prosser, J., Ziegler, J., and Gableman,
J.).

Likewise a majority of the court concludes that the
retroactive repeal of positive adjustment time violates the ex
post facto clause vis-à-vis the July 2011 offense. Five
justices would affirm the court of appeals determination of that
issue (Abrahamson, J., Ann Walsh Bradley, J., Prosser, J.,
Ziegler, J., and Gableman, J.).

However, no majority has been garnered as to whether the
retroactive repeal violates the ex post facto clause vis-à-vis
the 2008 offense. Three justices conclude that it does
(Abrahamson, J., Ann Walsh Bradley, J., and Prosser, J.); two
justices conclude that it does not (Roggensack, C.J. and Rebecca
G. Bradley, J.); and two justices do not address the issue
(Ziegler, J., and Gableman, J.).

Finally, there are two justices who would vote to remand
this case to the circuit court for a determination of whether
Singh is entitled to relief (Abrahamson, J., Ann Walsh Bradley,
J.). However, a majority of the court would not remand
(Roggensack, C.J., Prosser, J., Ziegler, J., Gableman, J. and
Rebecca G. Bradley, J.).

2
 No. 2013AP1724

repeal of positive adjustment time, and (2) the preservation of

positive adjustment time earned while 2009 Wis. Act 28 was in

effect and alterations to the process for obtaining early

release based on positive adjustment time, which we refer to as

Wis. Stat. § 973.198.

¶3 The petitioner, Aman Singh, seeks review of a

published court of appeals decision that reversed in part and

affirmed in part the circuit court's order dismissing his

petition for writ of habeas corpus.2 Singh contends that Wis.

Stat. § 973.198 delays inmates' release from prison by up to 90

days, thereby violating the ex post facto clauses of the

Wisconsin and United States Constitutions.3

¶4 He argues that under Wis. Stat. § 973.198, inmates who

are eligible for positive adjustment time are released up to 90

days later than under 2009 Wis. Act 28. Asserting that this

change results in a longer period of incarceration, Singh claims

2
State ex rel. Singh v. Kemper, 2014 WI App 43, 353
Wis. 2d 520, 846 N.W.2d 820 (affirming in part and reversing in
part an order quashing writ of habeas corpus and dismissing
petition entered by the circuit court for Racine County, Gerald
P. Ptacek, J., presiding).
3
The prohibition on ex post facto laws in the Wisconsin
Constitution is found in Article 1, Section 12, which provides:
"No . . . ex post facto law . . . shall ever be passed . . . ."

The prohibition on ex post facto laws in the United States
Constitution is found in Article I, Sections 9 and 10. Section
9 provides: "No bill of Attainder or ex post facto Law shall be
passed." Section 10 provides: "No state shall . . . pass
any . . . ex post facto Law. . . . "

3
 No. 2013AP1724

that § 973.198 violates the ex post facto clauses. We agree

with Singh that Wis. Stat. § 973.198 violates the constitutional

prohibition against ex post facto laws because it results in a

longer period of incarceration, thus making the punishment for

an offense more burdensome after it was committed.4

¶5 Cross-petitioner, Paul Kemper, in his capacity as

warden of the Racine Correctional Institute, seeks review of

that part of the court of appeals' decision that reversed the

circuit court's order dismissing Singh's petition for writ of

habeas corpus. He asserts that because Singh committed one of

his crimes before the enactment of positive adjustment time in

2009 Wis. Act 28, the court of appeals erroneously concluded

that the retroactive application of 2011 Wis. Act 38, which

eliminated the opportunity for inmates to continue earning

positive adjustment time, was an ex post facto violation of the

Wisconsin and United States Constitutions.

¶6 This case presents the unusual circumstance of a

defendant who was convicted and sentenced under 2009 Wis. Act
28, which made positive adjustment time available when it was

not originally available at the time of the offense. Kemper

argues that the court of appeals erred because it focused on

changes in the law when the defendant was convicted and

sentenced, rather than changes in the law at the time the

defendant committed the offenses.

4
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

4
 No. 2013AP1724

¶7 We disagree with Kemper because in this case, due to

the retroactive application of positive adjustment time, Singh

was convicted and sentenced while 2009 Wis. Act 28 was in

effect. Both Wisconsin and United States Supreme Court

precedent supports assessing the ex post facto effect of a law

in reference to the time the defendant committed the offense,

was convicted, or was sentenced.

¶8 Like the court of appeals, we conclude that because

the early release provisions of 2009 Wis. Act 28 were

retroactively in effect when Singh was convicted and sentenced

for the first offense, as well as at the time he committed the

second offense, that the retroactive repeal of positive

adjustment time in 2011 Wis. Act 38 violates the ex post facto

clauses of the Wisconsin and United States Constitutions.

However, unlike the court of appeals, we conclude that Wis.

Stat. § 973.198 also violates the constitutional prohibition

against ex post facto laws because it makes the punishment for

an offense more burdensome after it was committed.
¶9 Accordingly, we affirm the court of appeals'

determination that the retroactive repeal of positive adjustment

time is an ex post facto violation, but reverse its

determination that Wis. Stat. § 973.198 does not violate the

constitutional prohibition against ex post facto laws.

Additionally, I would remand the cause to the circuit court for

a determination of whether under the current circumstances it is

now appropriate to grant the writ and what additional relief, if
any, is warranted.
5
 No. 2013AP1724

I

¶10 The relevant facts of this case as presented by the

parties are not in dispute. They involve two legislative

changes made by 2011 Wis. Act 38. One retroactively repealed

positive adjustment time. The other created Wis. Stat.

§ 973.198, a new statute that preserved the opportunity of early

release for certain individuals and altered the procedure

obtaining early release based on positive adjustment time.

¶11 During the time period when Singh was first charged in

2008 until he began serving his prison sentence in early 2012,

the Legislature enacted and then repealed 2009 Wis. Act 28,

which provided inmates with the opportunity to earn early

release from prison.

¶12 Enacted in 2009, Wis. Stat. § 302.113(2)(b) (2009-10),

provided inmates convicted of Class F to I felonies the

opportunity to earn one day of positive adjustment time for

every two days of confinement.5 Positive adjustment time was

5
Some inmates not eligible for positive adjustment time
under Wis. Stat. § 302.113(2)(b) (2009-10) were instead eligible
pursuant to Wis. Stat. § 304.06(1)(bg)1. (2009-10). Under the
latter statute, inmates earned one day of positive adjustment
time for every three days served. Wisconsin Stat.
§ 304.06(1)(bg)1. (2009-10) provided:

A person sentenced under s. 973.01 for a Class F to
Class I felony or a misdemeanor that is not a violent
offense, as defined in s. 301.048(2)(bm)1., and who is
ineligible for positive adjustment time under
s. 302.113(2)(b) pursuant to s. 973.01(3d)(b) or for a
Class F to Class I felony that is a violent offense,
as defined in s. 301.048(2)(bm)1., may earn one day of
positive adjustment time for every 3 days served that
(continued)
6
 No. 2013AP1724

earned for every two days that the inmate did not violate any

regulation of the prison or refuse or neglect to perform

required or assigned duties.

¶13 Wisconsin Stat. § 302.113(2)(b) (2009-10) provided in

relevant part:

An inmate sentenced under s. 973.01 for a misdemeanor
or for a Class F to Class I felony that is not a
violent offense, as defined in s. 301.048(2)(bm)1.,
may earn one day of positive adjustment time for every
2 days served that he or she does not violate any
regulation of the prison or does not refuse or neglect
to perform required or assigned duties.
¶14 In 2011 the Legislature passed 2011 Wis. Act 38 as

part of a budget bill, which repealed the early release

provisions in 2009 Wis. Act 28. Consequently, after August 3,

2011, prisoners were generally precluded from earning positive

adjustment time.

¶15 The 2011 Act also created Wis. Stat. § 973.198, which

preserved the opportunity for certain individuals to earn early

release based on positive adjustment time earned between

October 1, 2009 and August 3, 2011, but altered the procedures

he or she does not violate any regulation of the
prison or does not refuse or neglect to perform
required or assigned duties. The person may petition
the earned release review commission for release to
extended supervision when he or she has served the
term of confinement in prison portion of his or her
bifurcated sentence, as modified by the sentencing
court under s. 302.045(3m)(b)1. or 302.05(3)(c)2.a.,
less positive adjustment time he or she has earned.

7
 No. 2013AP1724

for procuring early release. Section 973.198 provides in

relevant part:

(1) When an inmate who is serving a sentence imposed
under s. 973.01 and who has earned positive
adjustment time under s. 302.113, 2009 stats., or
under s. 304.06, 2009 stats., has served the
confinement portion of his or her sentence less
positive adjustment time earned between
October 1, 2009, and August 3, 2011, he or she
may petition the sentencing court to adjust the
sentence under this section, based on the number
of days of positive adjustment time the inmate
claims that he or she has earned.

(3) Within 60 days of receipt of a petition filed
under sub. (1), the sentencing court shall either
deny the petition or hold a hearing and issue an
order relating to the inmate's sentence
adjustment and release to extended supervision.

(5) If the court determines that the inmate has
earned positive adjustment time, the court may
reduce the term of confinement in prison by the
amount of time remaining in the term of
confinement in prison portion of the sentence,
less up to 30 days, and shall lengthen the term
of extended supervision so that the total length
of the bifurcated sentence originally imposed
does not change.
¶16 Under the Wis. Stat. § 973.198, inmates are not

permitted to file a petition requesting early release until the

day that they are actually eligible for release. Filing a

petition under § 973.198 starts a process for early release that

can take up to 90 days, even though the inmate is eligible for

release on the day he files the petition.

¶17 In contrast, under the repealed 2009 Act, 90 days

before an inmate was eligible for release the DOC was required
to notify the sentencing court that it intended to modify the

8
 No. 2013AP1724

inmate's sentence and release the inmate to extended

supervision. Wisconsin Stat. § 302.113(2)(c)1. (2009-10)

provided:

When an inmate is within 90 days of release to
extended supervision under par. (b), the department
shall notify the sentencing court that it intends to
modify the inmate's sentence and release the inmate to
extended supervision under par. (b), and the court may
hold a review hearing. If the court does not schedule
a review hearing within 30 days after notification
under this subsection, the department may proceed
under par. (b).
¶18 Under the 2009 Wis. Act 28, the sentencing court had

the discretion to hold a hearing within 30 days after it

received notice from the DOC. Wis. Stat. § 302.113(2)(c)1. If

the sentencing court opted to conduct a review, it was required

to hold the hearing and issue an order relating to the inmate's

early release within 60 days of receiving the DOC's notice.

Section 302.113(c)2.a. In contrast to the current law, an

inmate could then be released on the first day he was eligible.

¶19 Singh's case arose in the midst of rapid legislative

changes to the laws governing inmates' ability to earn early
release from prison based on positive adjustment time. In 2008,

Singh was charged with obtaining a controlled substance by fraud

in violation of Wis. Stat. § 961.43(1)(a).6 He was convicted and

6
Wisconsin Stat. § 961.43(1)(a) provides: "It is unlawful
for any person: To acquire or obtain possession of a controlled
substance by misrepresentation, fraud, forgery, deception or
subterfuge." Any person who violates this section is guilty of
a class H felony. Wis. Stat. § 961.43(2).

9
 No. 2013AP1724

sentenced in 2010 to three years of probation, with a three-year

bifurcated sentence imposed and stayed. Singh's sentence

included six months of jail time as a condition of probation.7

¶20 In July of 2011, Singh committed another violation of

Wis. Stat. § 961.43(1)(a). After the second offense, Singh's

probation for his first offense was revoked. He received a

five-year bifurcated sentence for the second offence, to be

served consecutively to his first sentence.

¶21 In 2012, Singh filed a petition for positive

adjustment time pursuant to Wis. Stat. § 973.198. The

Department of Corrections (DOC) denied Singh's request for early

release because he did not serve any time in prison between

October 1, 2009 and August 3, 2011.

¶22 After the DOC denied Singh's petition for positive

adjustment time, he filed a petition for writ of habeas corpus

with the circuit court. The circuit court entered an order

7
At oral argument this court was advised that on July 14,
2015, Singh's judgment of conviction for the 2008 Waukesha
County offense was amended from prison time to one year served
in the county jail. Such an amendment may give rise to an issue
of whether Singh would be entitled to positive adjustment time
for time served in the county jail. It also raises the question
of whether Singh's claim is moot if he was eligible for positive
adjustment time only for the time served in prison, rather than
the county jail. See ¶24 n.8, infra. Because we first learned
of this at oral argument and those issues were neither briefed
nor argued before this court, I do not now address them. I
would remand to the circuit court for a determination of this
issue.

10
 No. 2013AP1724

quashing the writ and dismissing Singh's petition with

prejudice.

¶23 On appeal, Singh argued that the retroactive repeal of

positive adjustment time and the enactment of Wis. Stat.

§ 973.198 were ex post facto laws. The court of appeals

concluded that the retroactive repeal of positive adjustment

time was unconstitutional, but that § 973.198 was not an ex post

facto law.

¶24 Singh filed a petition for review on the issue of

whether Wis. Stat. § 973.198 was an ex post facto law.8 Kemper

8
Singh also petitioned for review on an issue that we did
not accept involving the open records law.

After this court accepted the petition and cross-petition
for review, Singh informed the court that he had been released
to extended supervision and was no longer incarcerated. This
court ordered the parties to file briefs on the issue of
mootness due to Singh's release from custody.

Singh argues that the issue of whether Wis. Stat. § 973.198
is an ex post facto law is not moot because he remains on
extended supervision and subject to incarceration until 2018.
He further asserts that even if his case is moot, this court
should address this issue.

The State argues that both the issue Singh raises in his
petition and the issue the State raises in its cross-petition
are moot. Nevertheless, the State argues that this court should
consider the issue raised in its cross-petition because other
inmates who were eligible for positive adjustment time are
likely to raise the issue of whether the retroactive repeal of
early release is an ex post facto violation.

(continued)
11
 No. 2013AP1724

cross-petitioned on the issue of whether 2011 Wis. Act 38's

retroactive repeal of 2009 Wis. Act. 28's positive adjustment

time was an ex post facto law.

II

¶25 A circuit court's order denying a petition for writ of

habeas corpus presents a mixed question of fact and law. State

v. Pozo, 2002 WI App 279, ¶6, 258 Wis. 2d 796, 654 N.W.2d 12.

We will not reverse the circuit court's findings of fact unless

they are clearly erroneous. Id. Whether a writ of habeas

corpus is available to the party seeking relief is a question of

law that we review independently of the determinations rendered

by the circuit court and the court of appeals. Id.

¶26 Similarly, whether a statute violates the ex post

facto clauses of the Wisconsin and United States Constitutions

is a question of law that this Court reviews independently of

the determinations of the circuit court and the court of

appeals. State v. Elward, 2015 WI App 51, ¶5, 363 Wis. 2d 628,

866 N.W.2d 756. There is a strong presumption that legislative
enactments are constitutional. Bostco LLC v. Milwaukee Metro.

Sewerage Dist., 2013 WI 78, ¶76, 350 Wis. 2d 554, 835

N.W.2d 160. Singh has the burden of establishing beyond a

Even if they are moot, we address both the issue raised in
Singh's petition and the issue raised in the State's cross-
petition. Both issues are of public importance, are likely to
affect other inmates, and involve the constitutionality of a
statute. State ex rel. La Crosse Tribune v. Cir. Ct. for
La Crosse Cty., 115 Wis. 2d 220, 229, 340 N.W.2d 460 (1983).

12
 No. 2013AP1724

reasonable doubt that the challenged legislation is

unconstitutional. Chappy v. LIRC, 136 Wis. 2d 172, 184-85, 401

N.W.2d 568 (1987).

III

¶27 We address first the issue raised by Kemper's cross-

petition because it is foundational to our discussion of the

issue Singh raised in his petition for review. Before we can

decide Singh's claim that Wis. Stat. § 973.198 delays early

release by up to 90 days, we must first decide whether he was

eligible for early release under 2009 Wis. Act. 28.

¶28 In Collins v. Youngblood, 497 U.S. 37, 42 (1990), the

United State Supreme Court explained that any statute that makes

the punishment for a crime more burdensome after it is committed

is prohibited as an ex post facto law. This court explicitly

adopted the standard set forth in Collins, concluding that:

[A]n ex post facto law, prohibited by the Wisconsin
Constitution, is any law: 'which punishes as a crime
an act previously committed, which was innocent when
done; which makes more burdensome the punishment for a
crime, after its commission, or which deprives one
charged with crime of any defense available according
to law at the time the act was committed . . . .'

State v. Thiel, 188 Wis. 2d 695, 703, 524 N.W.2d 641 (1994)

(quoting Collins, 497 U.S. at 42).

¶29 Kemper asserts that the court of appeals erred when it

determined that a law violates the ex post facto clauses if it

imposes a greater punishment than the law in effect at the time

an inmate was convicted and sentenced for an offense. See State
ex rel. Singh v. Kemper, 2014 WI App 43, ¶10, 353 Wis. 2d 520,

13
 No. 2013AP1724

846 N.W.2d 820. He argues that the repeal of 2009 Wis. Act 28

cannot be an ex post facto violation as applied to Singh's 2008

offense because it did not increase the punishment beyond what

it was at the time of the 2008 offense.

¶30 Relying on State v. Kurzawa, 180 Wis. 2d 502, 511, 509

N.W.2d 712 (1994), Kemper advances that one of the fundamental

aspects of ex post facto analysis is its focus on changes in the

law relative to the time of the defendant's allegedly illegal

behavior. He concludes that Singh was not eligible for early

release because Singh committed the 2008 offense prior to the

enactment of 2009 Wis. Act. 28.

¶31 We are not persuaded by Kemper's argument that the

court of appeals erred in determining that an ex post facto law

increases the punishment imposed at the time of conviction and

sentencing, as well as at the time it was committed. Rather, we

agree with the court of appeals that an ex post facto law

increased the punishment imposed after an offense has been

committed. In determining whether such a change in punishment
occurred here, we must examine how the progression of Singh's

criminal cases fit within the timeline of rapid changes in the

law governing early release from prison.

¶32 Although 2009 Wis. Act 28 was not in effect when Singh

committed his first offense in 2008, 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 staring on
October 1, 2009. At the time Singh was sentenced in 2010 for
14
 No. 2013AP1724

the offense he committed in 2008, 2009 Wis. Act. 28 was in

effect.

¶33 Subsequently, the Legislature passed 2011 Wis. Act 38,

which repealed and modified the early release provisions in 2009

Wis. Act 28. Under 2011 Wis. Act 38, prisoners were precluded

from earning positive adjustment time after August 3, 2011.

When Singh committed his second offense on July 25, 2011, 2009

Wis. Act 28 was still in place. By the time he was convicted

and sentenced later that year, as well as when he began to serve

his sentence in prison in 2012, the 2009 Act had been repealed.

¶34 Singh's case is complicated by the fact that he did

not serve time in prison prior to the 2011 repeal of 2009 Wis.

Act. 28. After his first offense in 2008, Singh was convicted

and sentenced to three years of probation, with six months of

jail time as a condition of probation. It was not until Singh's

second offense in 2011 that his probation for the first offence

was revoked. Later, he received a five-year bifurcated sentence

for the second offense to be served consecutively with his first
sentence. Singh's first day in prison was January 4, 2012.

¶35 The court of appeals determined that "[w]hen Singh

committed or was convicted and sentenced on his offenses, the

2009 act and its multiple early release opportunities were the

law." Singh, 353 Wis. 2d 520, ¶19 (emphasis added). It

concluded that eliminating Singh's eligibility for early release

ensured that he would serve his full sentence in prison,

resulting in a significant risk that he would serve more

15
 No. 2013AP1724

confinement time than under 2009 Wis. Act 28. Id. "The ex post

facto clauses prohibit this." Id.

¶36 We recognize that ordinarily an inmate will be

convicted and sentenced under the law that was in effect at the

time the offense was committed. In this case, however, Kemper's

focus on the timeframe for when an ex post facto violation may

occur is too narrow because 2009 Wis. Act 28 applied

retroactively to inmates sentenced on or after December 31,

1999. At the time Singh committed the 2008 offense the

sentencing structure for a Class H felony did not offer the

opportunity to earn positive adjustment time. However, the

retroactive application of positive adjustment time means that

2009 Wis. Act 28 applied at the time Singh was convicted and

sentenced.

¶37 Even if for the sake of argument we accept Kemper's

focus on changes in the law at the time the defendant committed

the offense, he is incorrect that Singh was not eligible for

early release. Although Singh committed his first offense in
2008, prior to the enactment of 2009 Wis. Act 28, he committed

his second offense on July 25, 2011. At the time that Singh

committed his second offense, the early release provisions of

2009 Wis. Act 28 were in place. After his second offense,

Singh's probation for his first offense was revoked and he

served his sentences for both offenses consecutively. Thus,

Singh was entitled to earn positive adjustment time for the time

he served in prison as a result of the offense he committed on
July 25, 2011.
16
 No. 2013AP1724

¶38 Kemper does not dispute that the retroactive repeal of

early release would violate the ex post facto clauses if Singh

had been eligible for positive adjustment time. Instead, he

asserts that Singh was never eligible for early release based

upon positive adjustment time because Singh committed his crime

before the enactment of 2009 Wis. Act 28. However, both

Wisconsin and United States Supreme Court precedent prohibiting

ex post facto laws support including the time an inmate is

convicted and sentenced.

¶39 The animating principle underlying the ex post facto

clauses is the concept of fair warning. Kurzawa, 180 Wis. 2d at

513 (quoting Marks v. United States, 430 U.S. 188, 191-92

(1977)). As the United States Supreme Court explained,

"[t]hrough [the ex post facto] prohibition, the Framers sought

to assure that legislative Acts give fair warning of their

effect and permit individuals to rely on their meaning until

explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29

(1981).
¶40 Kemper seems to believe that the repeal of a

mitigating law that was in place when Singh was sentenced will

simply put Singh in the position that he would have been in at

the time he committed the crime. However, we cannot ignore the

fact that Singh relied on 2009 Wis. Act 28 as the law at the

time of his plea and sentencing.

¶41 In Weaver, the United States Supreme Court considered

whether the retroactive application of a revised "gain-time"
provision was an ex post facto law. 450 U.S. at 31. The Weaver
17
 No. 2013AP1724

court explained that "a prisoner’s eligibility for reduced

imprisonment is a significant factor entering into both the

defendant’s decision to plea bargain and the judge’s calculation

of the sentence to be imposed." Id. at 32. Accordingly, Weaver

concluded that for prisoners who committed crimes before the

statute was enacted, it substantially altered the consequences

attached to a crime already completed and therefore "change[d]

the quantum of punishment." Id. at 33.

¶42 Likewise, in Lynce v. Mathis, 519 U.S. 433, 446-47

(1997), the Supreme Court concluded that it was an ex post facto

violation to cancel good-time credits that had been awarded

pursuant to statutes enacted after the date the defendant

committed his offense. In Lynce, a retroactive statute took

away good-time credits that existed at the time of conviction

and sentencing, but did not exist at the time the defendant

committed the offense. Id. at 447. The Lynce court remanded

the case for a determination of the number of good-time credits

that the defendant accumulated under the statutes that existed
at the time of his conviction and sentencing, concluding that

they could not be cancelled by the retroactive law. Id. at 449.

¶43 Lynce acknowledged that "[t]he bulk of our ex post

facto jurisprudence" involves claims that a law inflicted a

greater punishment than at the time the offense was committed."

Id. at 441. However, it explained that an ex post facto law

must simply be retrospective in that it "must apply to events

occurring before its enactment." Id.

18
 No. 2013AP1724

¶44 Applying the ex post facto protection to conviction

and sentencing is consistent with the principle that "the

Constitution places limits on the sovereign's ability to use its

lawmaking power to modify bargains it has made with its

subjects." Id. at 440. This basic principle protects a

"defendant engaged in negotiations that may lead to an

acknowledgment of guilt and a suitable punishment." Id.

¶45 Similarly, in State ex rel. Eder v. Matthews, 115

Wis. 2d 129, 340 N.W.2d 66 (Ct. App. 1983), the Wisconsin court

of appeals addressed the issue of whether application of a "good

time" calculation violated the ex post facto clauses. The

Matthews court explained that the application of the "good time"

formula would increase the period of the defendant's

confinement. Id. at 133. Matthews concluded that "[a] law

which increases or alters the punishment of an offender to his

detriment, after he has been convicted and sentenced,

constitutes an ex post facto law . . . ." Id. (emphasis added).

¶46 If this court adopted the position advanced by Kemper
that a law can retroactively increase the length of time an

inmate is incarcerated after sentencing, we would have to

overrule Matthews. We decline to do so because it is consistent

with United States Supreme Court precedent.

¶47 The early release provisions of 2009 Wis. Act 28 were

in effect when Singh was convicted and sentenced for the first

offence, as well as at the time he committed the second offence.

Just as in Weaver and Matthews, the repeal of early release
would impermissibly retroactively increase Singh's punishment
19
 No. 2013AP1724

after he was convicted and sentenced. Under both Wisconsin and

Supreme Court precedent, the repeal of early release after the

commission of an offense violates the ex post facto clauses.

¶48 Accordingly, we agree with the court of appeals that

retroactive repeal of positive adjustment time in 2011 Wis. Act

38 violates the ex post facto clauses of the Wisconsin and

United States Constitutions.

IV

¶49 We address next the issue raised in Singh's petition

for review. He contends that the newly created Wis. Stat.

§ 973.198 violates the ex post facto clauses because it extends

the amount of time an inmate is incarcerated by up to 90 days

after he is eligible for early release.9

¶50 Under 2009 Wis. Act 28, the DOC was required to notify

the sentencing court 90 days before an inmate was eligible for

release that it intended to modify the inmate's sentence and

release the inmate to extended supervision. Wis. Stat.

§ 302.113(2)(c)1. (2009-10). The sentencing court had the
discretion to hold a hearing within 30 days after it received

notice from the DOC. Id.

9
At the court of appeals, Singh challenged the role of the
sentencing court under Wis. Stat. § 973.198. Singh raised this
issue in his petition for review. We need not address that
issue because we conclude that Wis. Stat. § 973.198 is an ex
post facto law due to the fact that it adds up to a 90 day delay
in release compared to the prior law.

20
 No. 2013AP1724

¶51 If the sentencing court opted to conduct a review

hearing, it was required to hold the hearing and issue an order

relating to the inmate's early release within 60 days of

receiving the DOC's notice. Wis. Stat. § 302.113(c)(2)a. (2009-

10). When the court did not schedule a review hearing within 30

days after notification from the DOC, the inmate would be

released on the first day he was eligible. § 302.113(2)(b) &

(c)1. (2009-10).

¶52 Although 2011 Wis. Act 38 eliminated positive

adjustment time after August 3, 2011, by enacting Wis. Stat.

§ 973.198, it allowed those inmates who earned positive

adjustment time while 2009 Wis. Act 28 was in effect to petition

for early release. Rather than retain the procedures set forth

in Wis. Stat. § 302.113 (2009-10), the Legislature enacted

§ 973.198, which now governs the process for early release for

inmates who earned positive adjustment time under 2009 Wis. Act

28.

¶53 Pursuant to Wis. Stat. § 973.198(1), an inmate who
earned positive adjustment time under Wis. Stat. § 302.113

(2009-10) may petition for early release after he has served the

confinement portion of his sentence minus any positive

adjustment time earned. Within 60 days of receiving the

inmate's petition, the sentencing court "shall either deny the

petition or hold a hearing and issue an order relating to the

inmate's sentence adjustment and release to extended

supervision." § 973.198(3). If the court determines that an
inmate has earned positive adjustment time, it "may reduce the
21
 No. 2013AP1724

term of confinement in prison by the amount of time remaining in

the term of confinement in prison portion of sentence, less up

to 30 days. . . ." § 973.198(1).

¶54 Singh argues that Wis. Stat. § 973.198 violates the ex

post facto clauses because it delays the release of inmates who

have earned positive adjustment time. Under 2009 Wis. Act 28,

the process for obtaining early release began 90 days before

inmates were eligible to be released. Then, the procedures for

processing an inmate's release were completed within 90 days and

the inmate was released on his eligibility date.

¶55 In contrast, under Wis. Stat. § 973.198, an inmate

cannot file a petition for early release based on positive

adjustment time until the date on which he is first eligible for

release. The filing of the petition begins a process for

determining eligibility for release that can take up to 90 days.

For inmates who have earned positive adjustment time, § 973.198

adds up to 90 days of incarceration to a sentence in comparison

to early release under Wis. Stat. § 302.113 (2009-10).
¶56 Kemper counters that the change in the law introduced

by Wis. Stat. § 973.198 was merely procedural. Although a

procedural change may have a substantive impact that violates

the ex post facto clauses, Kemper asserts that the speculative

and attenuated possibility of an increase in an inmate’s actual

term of confinement is not an ex post facto law. See, e.g.,

Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509 (1995).

Relying on Dobbert v. Florida, 432 U.S. 282, 293-94 (1977), he
argues that § 973.198 may have altered the methods employed in
22
 No. 2013AP1724

determining the punishment imposed, but did not change the

quantum of punishment attached to the crime.

¶57 According to Kemper, Wis. Stat. § 973.198 does not

violate the ex post facto clauses because the sentencing court

retained discretion to grant or deny an inmate’s request for

positive adjustment time under both laws. Thus he asserts that

any claim of increased confinement § 973.198 would be too

speculative and attenuated to constitute an ex post facto

violation. We disagree with Kemper because the unavoidable

delay in an inmate's release under Wis. Stat. § 973.198 is

neither speculative nor attenuated.

¶58 Kemper's reliance on Dobbert is misplaced. In

Dobbert, the defendant argues that a change in the role of the

judge and jury in the imposition of the death sentence

constituted an ex post facto violation. 432 U.S. at 292. The

Dobbert court determined that the law at issue in that case was

clearly procedural because "there was no change in the quantum

of punishment attached to the crime." Id. at 293-94. Unlike in
Dobbert, Wis. Stat. § 973.198 may increase an inmate's

incarceration by up to 90 days.

¶59 In Morales, the United States Supreme Court addressed

the issue of when a claim of increased confinement is too

speculative and attenuated to constitute an ex post facto

violation. 514 U.S. 499. Morales involved a change to the

frequency of parole suitability hearings that is distinguishable

from the facts of this case as well as Weaver, 450 U.S. 24,

23
 No. 2013AP1724

Lindsey v. Washington, 301 U.S. 397 (1937), and Miller v.

Florida, 482 U.S. 423 (1987). See Morales, 514 U.S. at 507-08.

¶60 The amendment at issue in Morales made only one change

to the law. 541 U.S. at 507. It introduced the possibility

that after the initial parole hearing, the board would not have

to hold another hearing for two years if it found no reasonable

probability that the inmate would be deemed suitable for parole

during that period. Id. Rather than changing the sentencing

range for an offense, the amendment altered the method to be

followed in fixing a parole release date under identical

substantive standards. Id. at 507-08.

¶61 Morales explained that many legislative adjustments to

parole and sentencing procedures might produce "some remote risk

of impact on a prisoner's expected term of confinement." Id. at

508. As examples, Morales identified certain "innocuous

adjustments" such as changes to the membership of the board of

prison terms or restrictions on hours that inmates may use the

prison library. Id.
¶62 The changes to early release under Wis. Stat.

§ 973.198 are not innocuous adjustments. An inmate who would

have been released on his eligibility date under the now

repealed Wis. Stat. § 302.113 (2009-10), cannot file a petition

for release until he reaches that same date. Then, the

procedure for obtaining release will take up to 90 days after

the petition is filed. Thus, § 973.198 increases the length of

incarceration for every inmate who is eligible for early release
based on positive adjustment. This arbitrary increase in
24
 No. 2013AP1724

punishment violates the ex post facto clauses of the Wisconsin

and United States constitutions.

¶63 We agree with Singh that this court's decision in

State ex rel. Mueller v. Powers, 64 Wis. 2d 643, 221 N.W.2d 692

(1974), is analogous. In Mueller, inmates in the state prison

system sought a declaration that a change in the law that

extended their initial eligibility date for parole from two

years to five years into their imprisonment violated the ex post

facto clauses of the Wisconsin and United States Constitutions.

Id. at 645.

¶64 This court determined that the statute at issue in

Mueller was unconstitutional because the new law increased "the

time that must be served by petitioners before they are eligible

for parole consideration from two to five years in a very real

and practical sense imposes an additional penalty and violates

the constitutional inhibition against ex post facto

legislation." Id. at 647. Likewise, Wis. Stat. § 973.198

imposes additional punishment because it increases the time
served by inmates before they are eligible for early release.

¶65 This opinion should not be read to revive the

alternative definition of an ex post facto violation stated in

Mueller as any law "which alters the situation of the accused to

his disadvantage." Id. at 646 (citation omitted). In Thiel,

188 Wis. 2d at 703, this court withdrew this language from

Mueller, explaining that an ex post facto violation must

increase the punishment for an offense, not simply alter the
situation of a defendant to his disadvantage.
25
 No. 2013AP1724

¶66 Although important to note, this discrete narrowing of

Mueller does not affect the issues in this case. Mueller's

conclusion that changing parole eligibility from two years to

five years is an ex post facto violation is also based on the

proper legal standard that it "imposes an additional penalty."

64 Wis. 2d at 647. Likewise, Singh argues that the up to 90 day

delay in release under Wis. Stat. § 973.198 imposes an

additional penalty that was not imposed under the prior law.

¶67 A similar conclusion reached by the United States

Supreme Court further supports this court's determination. In

Weaver, 450 U.S. at 26, the court determined that a change in

Florida's "gain time for good conduct" statute extended the time

that inmates were required to spend in prison. Similar to the

statutory change at issue in this case, the Florida law

"reduce[d] the number of monthly gain-time credits available to

an inmate who abides by prison rules and adequately performs his

assigned tasks." Id. at 33. The Weaver court explained that

"this reduction in gain-time accumulation lengthens the period
that someone in petitioner's position must spend in prison."

Id.

¶68 Under both Wisconsin and United States Supreme Court

precedent, a retroactive change in the law that increases the

length of an inmate's sentence violates the ex post facto

clauses. We agree with Singh that under Wis. Stat. § 973.198,

inmates who are eligible for positive adjustment time are

released up to 90 days later than under 2009 Wis. Act 28. Thus,
we conclude that § 973.198 violates the constitutional
26
 No. 2013AP1724

prohibition against ex post facto laws and that the circuit

court erred when it dismissed the writ of habeas corpus.

V

¶69 I would remand to the circuit court to address whether

under the current circumstances it is now appropriate to grant

the writ and what additional relief, if any, is warranted.

Although Singh has been released from prison, he remains on

extended supervision which is considered "custody" for the

purposes of a writ of habeas corpus.

¶70 United States Supreme Court precedent leaves "no

doubt" that in addition to physical imprisonment, there are

other restraints on liberty that are considered "custody for

habeas corpus purposes——including post-release supervision:

History, usage, and precedent can leave no doubt that,
besides physical imprisonment, there are other
restraints on a man's liberty, restraints not shared
by the public generally, which have been thought
sufficient in the English-speaking world to support
the issuance of habeas corpus.
Jones v. Cunningham, 371 U.S. 236, 240 (1963); see also Earley

v. Murray, 451 F.3d 71, 75 (2d Cir. 2006) ("[p]ost-release

supervision, admitting the possibility of revocation and

additional jail time, is considered to be 'custody'" for the

purposes of habeas corpus.).

¶71 Following the clear directive in Jones, the Wisconsin

court of appeals explained that it is "settled" that habeas

corpus does not require actual physical imprisonment. State ex

rel. Wohlfahrt v. Bodette, 95 Wis. 2d 130, 133-34, 289

27
 No. 2013AP1724

N.W.2d 366 (1980). Rather, the focus is on whether one is

subject to restraints not shared by the public generally:

Reviewing federal law, we find that federal habeas
corpus is available to one "in custody." It is
settled that the use of habeas corpus has not been
limited to situations where the applicant is in actual
physical custody, but is available to one subject to
restraints not shared by the public generally. It has
been held that the language "in custody" is synonymous
with "restraint of liberty."

Id.

¶72 At oral argument, Singh's counsel suggested that

changing the conditions of extended supervision or reducing the

term of extended supervision may be appropriate remedies in this

case. As the United States Supreme Court explained in Carafas

v. Lavallee, 391 U.S. 234, 239 (1968), "the [federal habeas

corpus] statute does not limit the relief that may be granted to

discharge of the applicant from physical custody. Its mandate

is broad with respect to the relief that may be granted. It

provides that '[t]he court shall . . . dispose of the matter as

law and justice require.'"

¶73 Although the law may be well settled on this issue,

the facts of this case certainly are not. The facts of this

case have been a moving target, in part due to the disposition

of at least one of the number of post-conviction motions that

Singh has filed. At oral argument, this court learned for the

first time that Singh's sentence for the 2008 offense was

modified to one year in jail, but we do not know the grounds for
this modification. Apparently, Singh also received credit for

28
 No. 2013AP1724

time served and had the extended supervision portion of the

sentence vacated. See Justice Ziegler's concurrence/dissent,

¶149.

¶74 As one of the dissents acknowledges, there are

questions of fact in this case relevant to the issue of whether

Singh is entitled to positive adjustment time that cannot be

answered by reference to the evidentiary record before this

court. See generally Chief Justice Roggensack's dissent, ¶218-

21. For instance, the dissent states that there was an

opportunity for Singh to earn positive adjustment time on the

July 2011 offense which had the potential to be an ex post facto

violation, but "from the record before us, it is not possible to

make that factual determination . . . ." Id. ¶218. See also

id. ¶219 ("The potential for an ex post facto violation on the

second crime due to repeal of PAT is not possible to determine

due to the following circumstances presented by this

case . . . "); id., ¶200 ("His first day of confinement for the

July 25, 2011 crime is uncertain due to the modification of the
Waukesha County Judgment"); id., ¶221 ("It may be that Singh can

prove, as a factual matter, that he was confined on the second

sentence longer than should have occurred and that some type of

relief may be accorded . . . )"; Justice Ziegler's

concurrence/dissent, ¶148 n.10 ("It is unclear from the record

exactly what date this petition was filed . . .").

29
 No. 2013AP1724

¶75 Because this court is not a fact-finding court, the

circuit court is better suited to make a determination regarding

whether Singh is entitled to relief.10 See, e.g., Mitchell Bank

v. Schanke, 2004 WI 13, ¶84, 268 Wis. 2d 571, 676 N.W.2d 849

(remanding to the circuit court for specific findings because

"this court is not a fact-finding body. The circuit court is

better suited to make these precise determinations.").

Accordingly, I would remand to the circuit for a determination

of whether under the current circumstances it is now appropriate

to grant the writ and what additional relief, if any, is

warranted.

VI

¶76 In sum, we conclude that because the early release

provisions of 2009 Wis. Act 28 were in effect when Singh was

convicted and sentenced for the first offense, as well as at the

time he committed the second offense, retroactive repeal of

positive adjustment time in 2011 Wis. Act 38 violates the ex

post facto clauses of the Wisconsin and United States
Constitutions. We also conclude that Wis. Stat. § 973.198

violates the constitutional prohibition against ex post facto

10
Justice Ziegler's concurrence/dissent reaches out for
facts that are not in the record and were not briefed or argued
by either party. For example, the concurrence/dissent conducted
a DOC Offender Locator internet search to try to determine
Singh's maximum discharge date. Justice Ziegler's
concurrence/dissent, ¶149 & n.12. It seems to want to gather
facts not of record and based upon these uncertain facts to deny
Singh any relief.

30
 No. 2013AP1724

laws because it makes the punishment for an offense more

burdensome after it was committed.

¶77 Accordingly, we affirm the court of appeals'

determination that the retroactive repeal of positive adjustment

time is an ex post facto violation, but reverse its

determination that Wis. Stat. § 973.198 does not violate the

constitutional prohibition against ex post facto laws.

Additionally, I would remand the cause to the circuit court for

a determination of whether under the current circumstances it is

now appropriate to grant the writ and what additional relief, if

any, is warranted.

By the Court.—The decision of the court of appeals is

affirmed in part and reversed in part.

31
 No. 2013AP1724.dtp

¶78 DAVID T. PROSSER, J. (concurring). This complicated

case presents numerous issues for the court. Some are factual;

some are legal. Sorting out these issues is indispensable to

understanding this case. Recognizing the multitude of fact

situations that will be affected by our decision is critical in

explaining the law.

I

¶79 The petitioner, Aman D. Singh (Singh), has been

convicted of multiple offenses. Three of his convictions are

pertinent to this case.

¶80 On December 8, 2008, Singh was charged in Waukesha

County with five counts of violating Wis. Stat. § 961.43(a), a

Class H felony. His offenses were committed in 2008. On March

29, 2010, he pled guilty to Count 1 of the Complaint. He was

sentenced on April 29, 2010.

¶81 On August 26, 2011, Singh was charged with two

additional counts of violating Wis. Stat. § 961.43(a), still

Class H felonies, in Milwaukee County. He also was charged with
a misdemeanor. The felonies were committed on July 25, 2011,

and August 10, 2011. Singh pled guilty to all three charges on

November 9, 2011, and he was sentenced on December 29, 2011.

II

¶82 In June 2009 the legislature passed and the governor

approved the executive budget for the 2009-11 biennium.

Included in the budget were extensive changes to Wis. Stat.

§ 302.113, which is entitled "Release to extended supervision

1
 No. 2013AP1724.dtp

for felony offenders not serving life sentences." The changes

to § 302.113 did not take effect until October 1, 2009.

¶83 Prior to this effective date, the statute required

most inmates sentenced to prison to serve the full confinement

portion of their sentence. Wis. Stat. § 302.113(2) (2007-08).

There were several exceptions to this general rule.

¶84 The 2009 legislation made numerous changes in the

sentencing law, including changes that permitted certain persons1

sentenced to prison to earn "positive adjustment time" (PAT)

that shortened the period of confinement before these persons

were released to extended supervision. See 2009 Wis. Act 28,

§§ 2720-2733.2 Pertinent to this case, Wis. Stat. § 302.113(2)

was amended to add paragraph (b), which read, in part,

(b) An inmate sentenced under s. 973.01 for a
misdemeanor or for a Class F to Class I felony that is
not a violent offense, as defined in
s. 301.048(2)(bm)1., may earn one day of positive
adjustment time for every 2 days served that he or she
does not violate any regulation of the prison or does
not refuse or neglect to perform required or assigned
duties. An inmate convicted of a misdemeanor or a
Class F to Class I felony that is not a violent
offense, as defined in s. 301.048(2)(bm)1., shall be

1
Wisconsin Stat. § 973.01(3d)(b) (2009-10) made PAT
unavailable to persons determined by the DOC to "pose[] high
risk of reoffending."
2
For additional context regarding recent amendments to
Wisconsin's sentencing laws, see Cecelia Klingele, The Early
Demise of Early Release, 114 W. Va. L. Rev. 415, 436-39 (2012);
Jesse J. Norris, The Earned Release Revolution: Early
Assessments and State-Level Strategies, 95 Marq. L. Rev. 1551,
1566 (2012); Michael O'Hear, Good Conduct Time for Prisoners:
Why (and How) Wisconsin Should Provide Credits Toward Early
Release, 98 Marq. L. Rev. 487, 504-07 (2014).

2
 No. 2013AP1724.dtp

released to extended supervision when he or she has
served the term of confinement in prison portion of
his or her bifurcated sentence, as modified by the
sentencing court under s. 301.045(3m)(b)1. or
302.05(3)(c)2.a., if applicable, less positive
adjustment time he or she has earned.
¶85 Section 9311(4) of 2009 Wis. Act 28 provided that

Section 302.113(2) of the statutes first applies "to a person

sentenced on December 31, 1999." In other words, Wis. Stat.

§ 302.113(2)(b) applied retroactively to persons sentenced on or

after December 31, 1999.

¶86 The budget bill contained a sentence stating that

§ 302.113(2)(b) did not apply prospectively to a "person

sentenced on or after the effective date of the subdivision."

However, the governor vetoed that sentence.

¶87 The 2009 legislation also created Wis. Stat.

§ 302.113(2)(c), which prescribed the procedures for releasing

an inmate to extended supervision after he or she accrued PAT:

302.113(2)(c)1. When an inmate is within 90 days
of release to extended supervision under par. (b), the
department shall notify the sentencing court that it
intends to modify the inmate's sentence and release
the inmate to extended supervision under par. (b), and
the court may hold a review hearing. If the court
does not schedule a review hearing within 30 days
after notification under this subsection, the
department may proceed under par. (b).
¶88 In 2011 the legislature passed 2011 Wis. Act 38, which

substantially revised the law with respect to early release to

extended supervision. Section 38 of the new legislation

repealed the PAT provisions in Wis. Stat. § 302.113(2)(b) that

were created during the previous legislative session.

3
 No. 2013AP1724.dtp

¶89 Section 39 of the Act also repealed the release

procedures specified in Wis. Stat. § 302.113(2)(c) (2009-10).

In their place, Section 96 of the Act created Wis. Stat.

§ 973.198:

973.198 Sentence adjustment; positive adjustment
time. (1) When an inmate who is serving a sentence
imposed under s. 973.01 and who has earned positive
adjustment time under s. 302.11, 2009 stats., or under
s. 304.06, 2009 stats., has served the confinement
portion of his or her sentence less positive
adjustment time earned between October 1, 2009, and
the effective date of this subsection . . . [LRB
inserts date], he or she may petition the sentencing
court to adjust the sentence under this section, based
on the number of days of positive adjustment time the
inmate claims that he or she has earned.

(3) Within 60 days of receipt of a petition
filed under sub. (1), the sentencing court shall
either deny the petition or hold a hearing and issue
an order relating to the inmate's sentence adjustment
and release to extended supervision.

(5) If the court determines that the inmate has
earned positive adjustment time, the court may reduce
the term of confinement in prison by the amount of
time remaining in the term of confinement in prison
portion of the sentence, less up to 30 days, and shall
lengthen the term of extended supervision so that the
total length of the bifurcated sentence originally
imposed does not change.

(6) An inmate who submits a petition under this
section may not apply for adjustment of the same
sentence under s. 973.195 for a period of one year
from the date of the petition.
(Alterations in original.)

¶90 New Section 973.198 preserved for an inmate the PAT

that had been earned between October 1, 2009 and August 3, 2011,

but it prevented the inmate from taking full advantage of what
had been earned by delaying the date for the inmate's petition

4
 No. 2013AP1724.dtp

until the date the inmate was eligible for release, which took

into account the period of confinement reduced by the PAT earned

under the repealed 2009 law.

III

¶91 Evaluation of the changes to the law at issue in this

case is grounded in three dates: December 31, 1999; October 1,

2009; and August 3, 2011. To help the reader understand the big

picture, the following discussion will refer to four periods of

time based on these dates.

¶92 First, the "PAT window" refers to the time period

beginning October 1, 2009, and ending on August 3, 2011. 2009

Wis. Act 28 made PAT available under Wis. Stat. § 302.113(2)(b)

for inmates sentenced for eligible crimes during this time

period.

¶93 Second, the "retroactivity window" refers to the time

period beginning on December 31, 1999, and ending on September

30, 2009——the day before October 1, 2009. Section 9311(4) of

2009 Wis. Act 28 made PAT available to inmates sentenced for
eligible crimes during the retroactivity window.

¶94 Third, the period of time before December 31, 1999.

¶95 Fourth, the period of time after August 3, 2011, the

date 2011 Wis. Act 38 repealed the PAT provisions in Wis. Stat.

§ 302.113(2)(b).

¶96 Every relevant "event" described below occurs in one

of these four time periods. The court must consider the dates

of the following events: (1) the date a person committed an
eligible offense; (2) the date the person was sentenced for the

5
 No. 2013AP1724.dtp

eligible offense; (3) the date the person's confinement began as

part of the person's bifurcated sentence; and (4) the date the

person's confinement ended as part of that sentence.

¶97 Examining the four time periods in conjunction with

the four events reveals 35 categories of persons who might be

analyzed for possible ex post facto impact following the 2011

change in the law.3 The chart in the Appendix lists the 35

categories of persons.

3
Calculating the total number of combinations of dates and
events is a question of mathematics. The product rule is a
fundamental mathematical principle: "[S]uppose that A is a set
of a objects and B is a set of b objects. Then the number of
ways to pick one object from A and then one object from B is
a x b." Fred S. Roberts & Barry Tesman, Applied Combinatorics
17 (2d ed. 2009) (emphasis omitted). For example, a guest
attending a wedding might have two choices of appetizer (soup or
salad) and three choices of main course (beef, chicken, or
vegetarian). To determine the total number of combinations of
appetizers and main courses available to each guest, multiply
the number of appetizers (2) times the number of main courses
(3) for a total of 6 possible combinations of appetizers and
main courses.

Applying the product rule to the dates and events under
review in this case returns 256 different combinations of
relevant events and time periods. A person convicted of an
eligible offense may have committed the offense during any of
the four time periods, been sentenced for the offense during any
of the four time periods, begun serving the confinement portion
of a sentence during any of the four time periods, and ended the
confinement portion of the sentence during any of the four time
periods. This means that a person could have committed an
eligible crime before December 31, 1999, during the
retroactivity window, during the PAT window, or after August 3,
2011. Because we consider four time periods for each relevant
event, we multiply 4 x 4 x 4 x 4 to return 256 combinations of
events and time periods.

Fortunately, the laws of physics render impossible most of
the 256 combinations of time periods and events. As one
example, it is impossible for a person who committed an eligible
(continued)
6
 No. 2013AP1724.dtp

¶98 Thirteen categories on the chart are clearly

irrelevant to any ex post facto analysis.

● Categories 1-10 are irrelevant because the legislature

never made PAT available to persons sentenced before

December 31, 1999, for committing an eligible offense.

The 2011 changes in the law had no effect upon persons

in these categories.

● Categories 11 and 21 are irrelevant because persons in

these categories ended the confinement portion of

their sentences before October 1, 2009. These persons

ended their confinements before the legislature

created PAT and thus never qualified for it.

● Category 35 is irrelevant because the legislature

never made PAT available to persons who committed an

"eligible" offense after August 3, 2011.

¶99 Seven additional categories may be removed from

consideration because they involve persons who ended the

confinement portion of their sentences before August 3, 2011.
Whether sentenced during the retroactivity window, as were

persons in categories 12, 14, 22, and 24, or during the PAT

window, as were persons in categories 17, 27, and 31, these

persons were eligible to accrue PAT during the portions of their

confinement that overlapped with the PAT window. Any PAT earned

offense after August 3, 2011, to end the confinement portion of
the sentence for that offense before December 31, 1999.
Removing temporally impossible combinations leaves 35 remaining
categories of persons.

7
 No. 2013AP1724.dtp

should have been applied to their sentences of confinement to

accelerate their release to extended supervision. The 2011 law

change had no effect on these persons absent additional facts

not stated. Removing these additional 7 categories reduces the

number of relevant categories to 15.

¶100 The persons in the remaining 15 categories4 did not end

the confinement portion of their prison sentences until after

the legislature changed the law in 2011 to end PAT. These

persons are entitled to all the PAT, if any, that they earned

during the PAT window. That time was preserved by the 2011

legislation.

¶101 What is at issue here is whether persons in these 15

categories are entitled to earn PAT after August 3, 2011.

¶102 The 2011 statute does not seem to permit any person to

earn PAT after August 3, 2011. However, some inmates committed

eligible offenses, were sentenced on their offenses, and

commenced their confinement within the PAT window.

Theoretically, these inmates have the strongest case under the
Ex Post Facto Clauses to challenge the termination of their

ability to earn PAT after August 3, 2011. It must be

remembered, however, that the 2009 legislation treated inmates

who were sentenced for eligible offenses during the

retroactivity window exactly the same as inmates who committed

offenses and were sentenced during the PAT window.

4
To be clear, the remaining 15 categories are 13, 15, 16,
18, 19, 20, 23, 25, 26, 28, 29, 30, 32, 33, and 34.

8
 No. 2013AP1724.dtp

¶103 Consequently, the court must analyze whether

categories of persons who either committed eligible offenses or

were sentenced for such offenses during the retroactivity window

are qualified to make the same ex post facto claims as

categories of persons who committed eligible offenses and were

sentenced during the PAT window. Once this issue is resolved,

the question must be answered whether any categories of persons

are entitled, under ex post facto principles, to earn PAT after

August 3, 2011.

IV

¶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 and thereby reduce the length of their confinement.

¶105 Notably, the mitigation of these persons' sentences

turned upon the date of sentencing, rather than the date on

which they committed the underlying eligible offense. See 2009

Wis. Act 28, § 9311(4) ("[T]he creation of section[]

302.113(2)(b) . . . of the statutes first appl[ies] to a person

sentenced on December 31, 1999."). The legislature extended the
mitigating effects of PAT to all qualified persons sentenced on

9
 No. 2013AP1724.dtp

or after December 31, 1999——regardless of whether they committed

an eligible offense before or after that date. Furthermore, a

person who committed an eligible offense during the

retroactivity window might nevertheless have gained access to

PAT if he or she received a sentence during the PAT window.

¶106 After October 1, 2009, a person sentenced for an

eligible offense during the retroactivity window had an

expectation of PAT access identical to that of a person

sentenced during the PAT window. Because 2011 Wis. Act 38

eliminated the opportunity to continue earning PAT for persons

sentenced during the retroactivity window and persons sentenced

during the PAT window, both groups experienced the same increase

in the term of confinement. Accordingly, we can analyze both

groups together when determining whether the repeal of PAT after

August 3, 2011, violated the constitutional prohibitions on ex

post facto laws.

V

¶107 Under the United States Constitution, "No State
shall . . . pass any Bill of Attainder, ex post facto Law, or

Law impairing the Obligation of Contracts . . . " U.S. Const.

art. I, § 10, cl. 1. Wisconsin's Constitution provides: "No

bill of attainder, ex post facto law, nor any law impairing the

obligations of contracts, shall ever be passed . . . ." Wis.

Const. art. I, § 12. "We have long looked to the pronouncements

of the United States Supreme Court in construing the Ex Post

Facto Clause of the Federal Constitution as a guide to
construing the Ex Post Facto Clause of the Wisconsin

10
 No. 2013AP1724.dtp

Constitution." State v. Thiel, 188 Wis. 2d 695, 699, 524

N.W.2d 641 (1994) (footnote omitted).

¶108 The Supreme Court of the United States conducted an

extensive review of its own Ex Post Facto Clause jurisprudence

in Collins v. Youngblood, 497 U.S. 37 (1990). In an opinion by

Chief Justice Rehnquist, the Court began with language from

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), in which Justice

Samuel Chase "expounded those legislative Acts which in his view

implicated the core concern of the Ex Post Facto Clause."

Collins, 497 U.S. at 41-42.

¶109 Justice Chase described four types of laws that he

understood to contravene the constitutional prohibition:

I will state what laws I consider ex post facto laws,
within the words and the intent of the prohibition.
1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law
that aggravates a crime, or makes it greater than it
was, when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence, and
receives less, or different, testimony, than the law
required at the time of the commission of the offence,
in order to convict the offender.
Calder, 3 U.S. (3 Dall.) at 390 (opinion of Chase, J.) (emphasis

omitted).

¶110 Characterizing the language from Justice Chase's

Calder opinion as a comprehensive explanation of ex post facto

laws, the Supreme Court in Collins emphasized a twentieth

century formulation of the definition from Beazell v. Ohio, 269
U.S. 167 (1925):

11
 No. 2013AP1724.dtp

It is settled, by decisions of this Court so well
known that their citation may be dispensed with, that
any statute which punishes as a crime an act
previously committed, which was innocent when done;
which makes more burdensome the punishment for a
crime, after its commission, or which deprives one
charged with crime of any defense available according
to law at the time when the act was committed, is
prohibited as ex post facto.
Collins, 497 U.S. at 42 (quoting Beazell, 269 U.S. at 169-70).

¶111 After the Supreme Court decided Collins, this court

reviewed Wisconsin's ex post facto jurisprudence in State v.

Thiel, 188 Wis. 2d 695, 524 N.W.2d 641 (1994). In that case,

this court acknowledged that "Collins underscored that the

proper definition of an ex post facto law is the definition

originally stated in Calder and later summarized in Beazell."

Thiel, 188 Wis. 2d at 702.

¶112 Two of my colleagues have written at length regarding

Singh's first eligible offense, which he committed during the

retroactivity window and for which he was sentenced during the

PAT window. They argue that, when determining whether a

subsequent act of the legislature is unconstitutional, ex post

facto analysis should look solely to the law as it was at the

time of the commission of the offense. Chief Justice

Roggensack's dissent, ¶217 ("Because the August 3, 2011 repeal

of PAT caused the law to be as it was in 2008 when Singh

committed the first of his crimes, the 2011 legislation did not

impose punishment that was greater than it was at the time Singh

committed the first of his crimes."); Justice Rebecca G.

Bradley's dissent, ¶234 ("The 2011 law does not increase Singh's
sentence attached to the 2008 crime because it makes no change

12
 No. 2013AP1724.dtp

to the punishment that existed at the time Singh committed the

2008 crime.").5

¶113 I am not persuaded that ex post facto analysis is

always limited to mere comparison of the law as it existed at

two discrete times. To say that the 2011 legislation repealing

PAT is not an unconstitutional ex post facto law because the

punishment in 2011 is the same as the punishment in 2008 fails

5
The exclusive use of the date on which a person committed
an eligible offense carries with it a concerning implication:
the legislature could have entirely eliminated PAT earned by
certain inmates during the PAT window. As Justice Rebecca
Bradley sets forth the argument,

At the time Singh committed the 2008 crime, the PAT
opportunity did not exist; therefore, 2011 Wis. Act
38's repeal of it does not implicate any ex post facto
concerns regarding the 2008 crime. The 2011 law does
not increase Singh's sentence attached to the 2008
crime because it makes no change to the punishment
that existed at the time Singh committed the 2008
crime.

Justice Rebecca G. Bradley's dissent, ¶234 (footnote omitted).

Consider a person who committed and was sentenced for an
eligible offense before October 1, 2009, served the confinement
portion of a prison sentence during the entire PAT window, and
continued that confinement after August 3, 2011. If ex post
facto analysis is limited to a strict focus on the date of
commission of the offense, then the legislature could have
eliminated all PAT earned by that person during the PAT window
without implicating ex post facto concerns because eliminating
the earned PAT would "make[] no change to the punishment that
existed" when the crime was committed before October 1, 2009.
Under such an analysis, the 2011 repeal of PAT would seem to
survive constitutional scrutiny for ex post fact purposes even
without the reasonable preservation of earned PAT set forth in
Wis. Stat. § 973.198 (2013-14).

13
 No. 2013AP1724.dtp

to acknowledge the objective evolution of the law in the interim

period.

¶114 In Wisconsin, "No law repealed by a subsequent act of

the legislature is revived or affected by the repeal of such

repealing act." Wis. Stat. § 990.03(1) (2013-14); see also

Goodno v. City of Oshkosh, 31 Wis. 127, 130 (1872) ("The

original section, as an independent and distinct statutory

enactment, ceased to have any existence the very moment the

amendatory act was passed and went into effect . . . . The

original section, as a separate statute, was as effectually

repealed and obliterated from the statute book, as if the repeal

had been made by direct and express words . . . .").

¶115 The 2011 legislation repealing PAT did not "reinstate"

the statutory scheme for punishment as it existed before October

1, 2009. Rather, in 2011 the legislature amended the punishment

scheme for the second time in as many legislative sessions. An

appropriate analysis requires review of the ex post facto

consequences of the change in the law in 2009, followed by
review of the further changes to the law in 2011. Comparing the

punishment for eligible crimes in 2011 to the punishment for the

same crimes in 2008 is not sufficient where 2009 Wis. Act 28

retroactively altered the law as it existed in 2008.

¶116 Clearly, the retroactive creation of PAT in 2009 was

not unconstitutional. "Although the Latin phrase 'ex post

facto' literally encompasses any law passed 'after the fact,' it

has long been recognized . . . that the constitutional
prohibition on ex post facto laws applies only to penal statutes

14
 No. 2013AP1724.dtp

which disadvantage the offender affected by them." Collins, 497

U.S. at 41; see also Dobbert v. Florida, 432 U.S. 282, 294

(1977) ("It is axiomatic that for a law to be ex post facto it

must be more onerous than the prior law."). Consequently, 2009

Wis. Act 28 did not violate the prohibitions on ex post facto

laws by retroactively reducing the confinement period of some

sentences imposed during the retroactivity window.

¶117 Resolving whether the 2011 legislation repealing PAT

constituted an unconstitutional ex post facto law, however,

requires a more careful review. Before proceeding to an

analysis of whether eliminating the opportunity to earn PAT

after it had been granted actually makes the punishment for

eligible offenses more burdensome, it is necessary to determine

who may claim an ex post facto violation in this case.

¶118 As stated already, see supra Part IV, the repeal of

PAT had an identical effect on persons sentenced during the

retroactivity window and persons sentenced during the PAT window

by depriving both groups of the opportunity to earn PAT after
August 3, 2011. In effect, the legislature created a statutory

entitlement to PAT mitigating confinement for any person

sentenced for an eligible offense during the retroactivity

window or the PAT window. See Garner v. Jones, 529 U.S. 244,

258 (2000) (Scalia, J., concurring) ("A statutory parole system

that reduces a prisoner's sentence by fixed amounts of time for

good behavior during incarceration can realistically be viewed

as an entitlement——a reduction of the prescribed penalty——rather
than a discretionary grant of leniency.").

15
 No. 2013AP1724.dtp

¶119 Because the legislature in 2009 created that

entitlement to a sentence with confinement mitigated by PAT for

persons sentenced during either the retroactivity window or the

PAT window, the 2011 legislation withdrew a continued

opportunity to earn PAT from both groups. A change in the law

that "makes more onerous the punishment for crimes committed

before its enactment . . . runs afoul of the prohibition against

ex post facto laws." Weaver v. Graham, 450 U.S. 24, 35-36

(1981). Eliminating access to PAT after August 3, 2011, for

persons sentenced during the retroactivity window and the PAT

window risked making the punishment more burdensome: where they

previously had an opportunity to mitigate their term of

confinement, the 2011 legislation guaranteed that many of those

inmates would be required to serve a longer period of

confinement than they would have had the law not been changed.

¶120 Though people sentenced during the retroactivity

window and PAT window did not necessarily contemplate PAT at the

time they committed eligible crimes, the legislature in 2009 saw
fit to mitigate——retroactively or prospectively——all of their

sentences when it created PAT. To say that ex post facto

analysis is inappropriate because the law changed only after

people were sentenced is to deny the plain fact that the 2011

legislative action risked making more severe the term of

16
 No. 2013AP1724.dtp

confinement for persons already in prison.6 Accordingly, it is

appropriate to consider persons sentenced during the

retroactivity window and the PAT window alongside persons who

committed eligible offenses during the PAT window when deciding

whether the repeal of PAT was an unconstitutional ex post facto

law.

¶121 Under the Beazell formulation of the definition of ex

post facto laws——embraced by the Supreme Court in Collins and

adopted by this court in Thiel——the repeal of PAT in 2011

allegedly "makes more burdensome the punishment for a crime,

after its commission." Thiel, 188 Wis. 2d at 700 (quoting

Collins, 497 U.S. at 42). In cases where a change in the law is

alleged to make the punishment for a crime more burdensome after

commission of the offense, "[t]he touchstone of [a court's]

inquiry is whether a given change in law presents a '"sufficient

risk of increasing the measure of punishment attached to the

covered crimes."'" Peugh v. United States, 133 S. Ct. 2072,

6
Chief Justice Roggensack argues that the lead opinion
"employs a new definition of ex post facto law when it changes
the act from which ex post facto effect is measured to include a
temporary change in a law that was repealed subsequent to
conviction and sentencing." Chief Justice Roggensack's dissent,
¶214. She contends that "[n]o United States Supreme Court
opinion supports the lead opinion's definition of ex post facto
law, nor does any opinion from this court." Id., ¶215. But it
bears noting that changes in the law after sentencing also occur
after commission of the crime. The Ex Post Facto Clauses
prohibit legislative action that "makes more burdensome the
punishment for a crime, after its commission." State v. Thiel,
188 Wis. 2d 695, 700, 524 N.W.2d 641 (1994) (quoting Collins v.
Youngblood, 497 U.S. 37, 42 (1990)). It undermines the
prohibition's purpose if the legislature may increase the term
of confinement for prisoners after their confinement has begun.

17
 No. 2013AP1724.dtp

2082 (2013) (quoting Garner, 529 U.S. at 250, which had quoted

Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509 (1995)).

"[M]ere speculation or conjecture that a change in law will

retrospectively increase the punishment for a crime will not

suffice to establish a violation of the Ex Post Facto Clause,"

but neither must "a law increase the maximum sentence for which

a defendant is eligible in order to violate the Ex Post Facto

Clause." Id. at 2081-82.

¶122 Here, the repeal of PAT ensured that many persons

convicted of eligible offenses would actually serve a longer

term of confinement than the mitigated term available by law

when they committed the offense or were sentenced for it.

Admittedly, a person confined to prison for an eligible offense

may engage in behavior that precludes accrual of much, or any,

PAT. But that possibility in some cases does not change the

fact that the 2011 legislation eliminated PAT's mitigating

effect for all eligible persons with eligible sentences who

served all or part of their prison sentence after August 3,
2011.

¶123 The Supreme Court has identified as unconstitutionally

ex post facto various laws that "had the purpose and effect of

enhancing the range of available prison terms." Morales, 514

U.S. at 507 (first citing Lindsey v. Washington, 301 U.S. 397

(1937); then citing Weaver, 450 U.S. 24; and then citing Miller

v. Florida, 482 U.S. at 433-34). The cases discussed in Morales

involved unconstitutional laws that amended state sentencing
guidelines that were "intended to, and did, increase the

18
 No. 2013AP1724.dtp

'quantum of punishment'" for crimes in the category at issue,

Miller, 482 U.S. at 433-34; reduced "gain-time accumulation" so

as to "lengthen[] the period that someone . . . must spend in

prison," Weaver, 450 U.S. at 33 (overturning Florida statute

reducing the number of gain-time days an inmate could earn each

month); and "ma[de] mandatory what was before only the maximum

sentence," Lindsey, 301 U.S. at 400. See also Peugh, 133 S. Ct.

at 2084 ("A retrospective increase in the Guidelines range

applicable to a defendant creates a sufficient risk of a higher

sentence to constitute an ex post facto violation."); Lynce v.

Mathis, 519 U.S. 433, 443 (1997) (explaining that in "post-

Weaver cases, [the Court has] . . . considered whether the

legislature's action lengthened the sentence without examining

the purposes behind the original sentencing scheme," and noting

that in Miller, the Court's conclusion that the sentencing

guidelines made the punishment more burdensome "rested entirely

on an objective appraisal of the impact of the change on the

length of the offender's presumptive sentence").
¶124 Cases involving an objective increase in sentence

length stand in contrast to those in which the Court concluded

that laws permitting discretionary decisions did not have an

unconstitutional ex post facto effect. See Garner, 529 U.S. at

256 (declining to conclude that "change in Georgia law

lengthened [an inmate's] time of actual imprisonment" where

state parole board exercised its discretion to increase time

period between parole hearings); Morales, 514 U.S. at 505-07
(concluding that law permitting parole board to schedule

19
 No. 2013AP1724.dtp

subsequent parole hearings two years in the future rather than

annually after initial hearing did not unconstitutionally change

"the substantive formula for securing any reductions to

[the] . . . sentencing range").

¶125 The repeal of PAT by 2011 Wis. Act 38 hews much closer

to the cases involving lengthening of prison terms than to those

involving discretionary parole decisions. Even though PAT is

contingent on inmate conduct during the term of confinement——

meaning that an eligible inmate does not receive PAT as a matter

of right without appropriate conduct——the 2011 legislation had

the effect of preventing accrual of PAT for perfect behavior

after August 3, 2011.

¶126 As a result, eligible persons who were sentenced for

eligible offenses during the retroactivity window, eligible

persons who were sentenced for eligible offenses during the PAT

window, and eligible persons who committed eligible offenses

during the PAT window had their imposed or expected sentences

transformed. Where they could once expect a term of confinement
as mitigated by PAT earned during the entirety of confinement,

they could now expect a term of confinement as mitigated by PAT

(if any) earned only during the PAT window. For an eligible

person who began confinement close in time to August 3, 2011,

such a change in the law could mean years added to the length of

time he or she could expect to spend in prison, assuming

behavior conforming to the standards necessary to earn PAT.

¶127 In 2011 the legislature repealed PAT prospectively not
just for persons who committed offenses after August 3, 2011,

20
 No. 2013AP1724.dtp

but also for persons already eligible to earn PAT based on the

dates they committed or were sentenced for eligible offenses.

For persons sentenced during the retroactivity window, persons

sentenced during the PAT window, and persons who committed

offenses during the PAT window, a prohibition on earning PAT

after August 3, 2011, creates an obvious and "sufficient" risk

that they will serve longer sentences than they would have had

PAT not been repealed. Therefore, I would hold that 2009 Wis.

Act 38 was an unconstitutional ex post facto law to the extent

that it denied those persons the opportunity to earn PAT during

confinement after August 3, 2011.7

VI

¶128 I agree with the lead opinion's conclusion that the

amended release procedure in Wis. Stat. § 973.198 created by

2011 Wis. Act 38 is an unconstitutional ex post facto law

because it may lengthen the term of confinement for inmates who

have earned PAT by as many as 90 days. Lead op., ¶68. I write

separately to emphasize that the amendment to the release
procedure for earned PAT clearly results in an ex post facto

violation.

¶129 It is important to observe that the amended release

procedure necessarily requires more time in confinement for a

person who has earned PAT than did the previous procedure. The

procedure created in 2009 required the Department of Corrections

to notify the sentencing court "within 90 days of release to

7
By the reasoning stated in this opinion, I thus reach the
same conclusion as the lead opinion. Lead op., ¶47-48.

21
 No. 2013AP1724.dtp

extended supervision" of an intent to modify a sentence and

release a person early because of earned PAT. Wis. Stat.

§ 302.113(2)(c)1. (2009-10). Thus, a person could complete the

review process before the date of eligibility for release and

conceivably begin extended supervision on that date.

¶130 The revised procedure created by 2011 Wis. Act 38

makes it impossible for an inmate who has earned PAT to begin

extended supervision on the date that PAT makes that person

eligible for release from confinement. Under the new procedure,

"[w]hen an inmate . . . who has earned positive adjustment

time . . . has served the confinement portion of his or her

sentence less positive adjustment time . . . , he or she may

petition the sentencing court to adjust the sentence." Wis.

Stat. § 973.198(1) (2013-14). The sentencing court must hold a

hearing on the petition within 60 days of receiving it, and the

sentencing court then "may reduce the term of confinement in

prison by the amount of time remaining in the term of

confinement in prison portion of the sentence, less up to 30
days." Wis. Stat. § 973.198(3)-(5).

¶131 In effect, the result of this change is to reduce by

as many as 90 days the amount of PAT that an inmate has earned.

An inmate under the new system may not petition for release

until the date that the old system would have permitted release.

As revised, the release procedure essentially eliminates at

least 1 and as many as 90 days of earned PAT.

¶132 Characterizing this change to the release process as
"procedural" rather than "substantive" does not save it for

22
 No. 2013AP1724.dtp

constitutional purposes. Although the Supreme Court stated in

Dobbert v. Florida, 432 U.S. 282 (1977), that "[e]ven though it

may work to the disadvantage of a defendant, a procedural change

is not ex post facto," the Court went on to explain that the law

at issue in the case was "procedural" because "[t]he new statute

simply altered the methods employed in determining whether the

death penalty was to be imposed; there was no change in the

quantum of punishment attached to the crime." Dobbert, 432 U.S.

at 293-94. The legislature has the prerogative to alter the

procedure for exercising earned PAT, but we must evaluate

whether any changes have a substantive impact on the length of

punishment.

¶133 It has already been established that an ex post facto

violation occurs when a law retroactively extends the amount of

time that a person must spend in prison. "By

definition, . . . reduction in gain-time accumulation lengthens

the period that someone . . . must spend in prison." Weaver,

450 U.S. at 33. Because the new release procedure eliminates
anywhere from 1 to 90 days of earned PAT, the procedure

undoubtedly lengthens the term of confinement and therefore also

has an unconstitutional effect.

VII

¶134 To conclude, I return to Singh and review the

consequences for him of the law discussed thus far.

¶135 At the outset, I conclude that Singh is not eligible

to earn PAT on the offense committed on August 10, 2011.
Because that offense was committed after the repeal of PAT on

23
 No. 2013AP1724.dtp

August 3, 2011, Singh has no basis to claim (and does not

assert) that he is eligible for PAT on this offense.

¶136 Next, I conclude that Singh is eligible for PAT on the

offense committed on July 25, 2011. Because he committed that

offense during the PAT window, denying him PAT would

unconstitutionally lengthen the term of his confinement. He is

eligible to earn PAT during any time confined in prison under

sentence for that offense——including any time confined after

August 3, 2011.

¶137 Finally, I conclude that Singh is eligible for PAT on

the 2008 Waukesha County offense. Because he was sentenced

during the PAT window, denying him PAT would unconstitutionally

lengthen the term of his confinement. He is eligible to earn

PAT during any time confined in prison under that sentence——

including any time confined after August 3, 2011.

¶138 To be clear, Singh has not asked this court to

precisely determine how much PAT, if any, he earned while

confined under these sentences. As Singh explains in his brief
in response to Warden Kemper's cross-petition, "It would be

trivial for this Court to assess the specific positive-

adjustment-time calculations to which Mr. Singh was entitled.

That is particularly so given Mr. Singh's circumstances——his

other sentence, and his current status of having been released

from prison." Indeed, given the complex factual circumstances

relating to these sentences and Singh's time in and out of

confinement during the time periods at issue, there is a

24
 No. 2013AP1724.dtp

distinct possibility that any PAT he earned would not have

resulted in his earlier release.

¶139 For the foregoing reasons, I respectfully concur. I

agree with many of the conclusions and much of the reasoning in

the lead opinion. I would affirm the decision of the court of

appeals regarding Singh's eligibility for PAT and reverse the

decision of the court of appeals regarding the procedure for

securing release pursuant to earned PAT.

25
 No. 2013AP1724.dtp

APPENDIX

Cat. # Committed Sentenced Confinement Begun Confinement Ended
1 Before 12/31/99 Before 12/31/99 Before 12/31/99 Before 12/31/99
2 Before 12/31/99 Before 12/31/99 Before 12/31/99 On/After 12/31/99 &
Before 10/1/09
3 Before 12/31/99 Before 12/31/99 Before 12/31/99 After 10/1/09 &
Before 8/3/11
4 Before 12/31/99 Before 12/31/99 Before 12/31/99 After 8/3/11
5 Before 12/31/99 Before 12/31/99 On/After 12/31/99 & On/After 12/31/99 &
Before 10/1/09 Before 10/1/09
6 Before 12/31/99 Before 12/31/99 On/After 12/31/99 & After 10/1/09 &
Before 10/1/09 Before 8/3/11
7 Before 12/31/99 Before 12/31/99 On/After 12/31/99 & After 8/3/11
Before 10/1/09
8 Before 12/31/99 Before 12/31/99 After 10/1/09 & After 10/1/09 &
Before 8/3/11 Before 8/3/11
9 Before 12/31/99 Before 12/31/99 After 10/1/09 & After 8/3/11
Before 8/3/11
10 Before 12/31/99 Before 12/31/99 After 8/3/11 After 8/3/11
11 Before 12/31/99 On/After 12/31/99 & On/After 12/31/99 & On/After 12/31/99 &
Before 10/1/09 Before 10/1/09 Before 10/1/09
12 Before 12/31/99 On/After 12/31/99 & On/After 12/31/99 & After 10/1/09 &
Before 10/1/09 Before 10/1/09 Before 8/3/11
13 Before 12/31/99 On/After 12/31/99 & On/After 12/31/99 & After 8/3/11
Before 10/1/09 Before 10/1/09
14 Before 12/31/99 On/After 12/31/99 & After 10/1/09 & After 10/1/09 &
Before 10/1/09 Before 8/3/11 Before 8/3/11
15 Before 12/31/99 On/After 12/31/99 & After 10/1/09 & After 8/3/11
Before 10/1/09 Before 8/3/11
16 Before 12/31/99 On/After 12/31/99 & After 8/3/11 After 8/3/11
Before 10/1/09
17 Before 12/31/99 After 10/1/09 & After 10/1/09 & After 10/1/09 &
Before 8/3/11 Before 8/3/11 Before 8/3/11
18 Before 12/31/99 After 10/1/09 & After 10/1/09 & After 8/3/11
Before 8/3/11 Before 8/3/11
19 Before 12/31/99 After 10/1/09 & After 8/3/11 After 8/3/11
Before 8/3/11
20 Before 12/31/99 After 8/3/11 After 8/3/11 After 8/3/11
21 On/After 12/31/99 & On/After 12/31/99 & On/After 12/31/99 & On/After 12/31/99 &
Before 10/1/09 Before 10/1/09 Before 10/1/09 Before 10/1/09
22 On/After 12/31/99 & On/After 12/31/99 & On/After 12/31/99 & After 10/1/09 &
Before 10/1/09 Before 10/1/09 Before 10/1/09 Before 8/3/11
23 On/After 12/31/99 & On/After 12/31/99 & On/After 12/31/99 & After 8/3/11
Before 10/1/09 Before 10/1/09 Before 10/1/09
24 On/After 12/31/99 & On/After 12/31/99 & After 10/1/09 & After 10/1/09 &
Before 10/1/09 Before 10/1/09 Before 8/3/11 Before 8/3/11
25 On/After 12/31/99 & On/After 12/31/99 & After 10/1/09 & After 8/3/11
Before 10/1/09 Before 10/1/09 Before 8/3/11
26 On/After 12/31/99 & On/After 12/31/99 & After 8/3/11 After 8/3/11
Before 10/1/09 Before 10/1/09
27 On/After 12/31/99 & After 10/1/09 & After 10/1/09 & After 10/1/09 &
Before 10/1/09 Before 8/3/11 Before 8/3/11 Before 8/3/11
28 On/After 12/31/99 & After 10/1/09 & After 10/1/09 & After 8/3/11
Before 10/1/09 Before 8/3/11 Before 8/3/11
29 On/After 12/31/99 & After 10/1/09 & After 8/3/11 After 8/3/11
Before 10/1/09 Before 8/3/11
30 On/After 12/31/99 & After 8/3/11 After 8/3/11 After 8/3/11
Before 10/1/09
31 After 10/1/09 & After 10/1/09 & After 10/1/09 & After 10/1/09 &
Before 8/3/11 Before 8/3/11 Before 8/3/11 Before 8/3/11
32 After 10/1/09 & After 10/1/09 & After 10/1/09 & After 8/3/11
Before 8/3/11 Before 8/3/11 Before 8/3/11
33 After 10/1/09 & After 10/1/09 & After 8/3/11 After 8/3/11
Before 8/3/11 Before 8/3/11
34 After 10/1/09 & After 8/3/11 After 8/3/11 After 8/3/11
Before 8/3/11
35 After 8/3/11 After 8/3/11 After 8/3/11 After 8/3/11

26
 No. 2013AP1724.dtp

27
 No. 2013AP1724.akz

¶140 ANNETTE KINGSLAND ZIEGLER, J. (concurring in part,

dissenting in part). I agree only with the lead opinion's

conclusion to affirm in part and reverse in part the court of

appeals. The opinion of Justice Ann Walsh Bradley is joined

only by Justice Shirley S. Abrahamson. Justice David T. Prosser

concurs, but does not join Justice Ann Walsh Bradley's opinion.1

While Justice Prosser engages in a thorough, reasonable, and

persuasive analysis concerning Singh's ex post facto challenge,

the facts of this case are so unique that regardless of the ex

post facto analysis, the conclusion is the same. As will be

discussed in this writing, the peculiar facts of this case leave

Singh with no habeas relief.

¶141 As the old adage warns, "bad facts make bad law."

This case is a prime example of bad facts, and I am concerned

that by undertaking an unnecessary review of the scope of the ex

post facto clause we risk creating bad law. Fortunately, we do

not need to do so here. I write to explain that under either

interpretation of the proper scope of the ex post facto clause
proffered by the other members of the court, the result in this

unusual case remains the same. Put simply, Singh is due no

relief on his writ of habeas corpus. Judicial restraint

requires that we resolve cases on the narrowest possible

grounds. See, e.g., DOJ v. DWD, 2015 WI 114, ¶29, 365

Wis. 2d 694, 875 N.W.2d 545 ("[W]e are generally obliged to

decide our cases on the 'narrowest possible grounds'" (quoting

1
Chief Justice Roggensack and Justice Rebecca G. Bradley
have authored separate but dissenting opinions.

1
 No. 2013AP1724.akz

State v. Subdiaz-Osorio, 2014 WI 87, ¶143, 357 Wis. 2d 41, 849

N.W.2d 748 (Ziegler, J., concurring).)). Accordingly, a

decision on the precise scope of the ex post facto clause is

unnecessary because Singh is entitled to no habeas corpus

relief. Consequently, remand is also inappropriate in this

case.

I. BACKGROUND

¶142 Singh committed an array of offenses between 2008 and

2011, a period of time during which a series of legislative

changes to the sentencing statutes was enacted. For example, as

of June 30, 2009, the legislature put into effect several early

release opportunities for offenders who received sentences for

certain eligible offenses after December 1, 1999. See 2009

Wis. Act 28.2 The program at issue here provided that inmates

2
Creating Wis. Stat. 302.113 (2009-10), which provided in
relevant part:

(1) An inmate is subject to this section if he or
she is serving a bifurcated sentence imposed under s.
973.01. An inmate convicted of a misdemeanor or of a
Class F to Class I felony that is not a violent
offense, . . . and who is eligible for positive
adjustment time under sub. (2)(b) . . . may be
released to extended supervision under sub. (2)(b) or
(9h). . . .

(2) . . .

(b) An inmate sentenced under s. 973.01 for a
misdemeanor or a Class F to Class I felony that is not
a violent offense, as defined in s. 301.048(2)(bm)1.,
may earn one day of positive adjustment time for every
2 days served that he or she does not violate any
regulation of the prison or does not refuse or neglect
to perform required or assigned duties. An inmate
convicted of a misdemeanor or a Class F to Class I
(continued)
2
 No. 2013AP1724.akz

serving prison sentences for misdemeanors or nonviolent Class F

to Class I felonies could earn one day of "Positive Adjustment

Time" (PAT) for every two days served "that he or she does not

violate any regulation of the prison or does not refuse or

neglect to perform required or assigned duties." Wis. Stat.

§ 302.113(2)(b) (2009-10).3 PAT did not decrease the total

length of the sentence, but rather allowed inmates to convert

one-third of their confinement time into extended supervision

time.4 Wis. Stat. § 302.113(3)(e) ("If an inmate is released to

extended supervision under sub. (2)(b) after he or she has

served less than his or her entire confinement in prison portion

of the sentence imposed under s. 973.01, the term of extended

supervision is increased so that the total length of the

bifurcated sentence does not change."); § 302.113(2)(a) ("[A]n

inmate subject to this section is entitled to release to

extended supervision after he or she has served the term of

confinement in prison portion of the sentence [as modified by

felony that is not a violent offense, . . . shall be
released to extended supervision when he or she has
served the term of confinement in prison portion of
his or her bifurcated sentence, . . . less positive
adjustment time he or she has earned.
3
All subsequent references to the Wisconsin Statutes will
be to the 2009-10 version of the Wisconsin Statutes unless
otherwise indicated.
4
For instance, if an inmate received a bifurcated sentence
consisting of three years confinement and three years extended
supervision, PAT would allow the sentence to be modified to two
years confinement and four years extended supervision. The
inmate would be released to extended supervision after serving
two years confinement in prison.

3
 No. 2013AP1724.akz

the appropriate reviewing entity under the PAT statutes]"

(emphasis added).).

¶143 An inmate's eligibility for PAT was not discretionary

on the part of the Department of Corrections ("DOC"), but

instead was dependent on the classification of the inmate's

offense. See Wis. Stat. § 302.113(2)(b) ("An inmate sentenced

under s. 973.01 for a misdemeanor or for a Class F to Class I

felony that is not a violent offense, . . . may earn one day of

positive adjustment time for every 2 days served that he or she

does not violate any regulation of the prison or does not refuse

or neglect to perform required or assigned duties.") The

statutes required the DOC to keep a record of the conduct of

each inmate subject to § 302.113. See § 302.113(3)(a).

Qualifying inmates were entitled to early release to extended

supervision when they had served the confinement portion of

their sentences less PAT earned. See § 302.113(2)(b) ("An

inmate convicted of a misdemeanor or a Class F to Class I felony

that is not a violent offense, . . . shall be released to
extended supervision when he or she has served the term of

confinement in prison portion of his or her bifurcated

sentence, . . . less positive adjustment time he or she has

earned."). When an inmate was within 90 days of release to

extended supervision based upon PAT earned, the DOC notified the

sentencing court that it intended to modify the inmate's

sentence. § 302.113(2)(c)1. The sentencing court could, but

was not required to, hold a review hearing. Id. ("[T]he [DOC]
shall notify the sentencing court . . . and the court may hold a

4
 No. 2013AP1724.akz

review hearing.") If the sentencing court did not schedule a

hearing, the DOC proceeded with release. Id. ("If the court

does not schedule a review hearing within 30 days after

notification under this subsection, the [DOC] may proceed under

par. (b).")

¶144 In 2008, prior to the enactment of the PAT statutes,

Singh forged prescriptions for narcotics and was charged in

Waukesha County with violating Wis. Stat. § 961.43(a), Obtain

Controlled Substance by Fraud, a class H felony. Singh was

convicted and sentenced for the 2008 Waukesha County offense in

2010, while PAT was in effect. He received three years

probation with six months of conditional jail time and an

imposed-and-stayed bifurcated prison sentence consisting of 18

months confinement and 18 months extended supervision, to be

served upon revocation. Because he was sentenced for a

qualifying offense after December 1, 1999, at the time of

sentencing PAT at least arguably applied to the bifurcated

prison portion of this sentence.5
¶145 While on probation for the 2008 Waukesha offense,

Singh committed two offenses in Milwaukee County. The first was

committed on July 25, 2011, while PAT was in effect. The PAT

statutes were repealed August 3, 2011. Singh committed his

5
Singh did not earn any PAT on this sentence at this time,
however, because he was placed on probation and his bifurcated
prison sentence was imposed and stayed. Thus, until his
probation was revoked, Singh was not "serving a bifurcated
sentence imposed under s. 973.01" as required by Wis. Stat.
§ 302.113. See Wis. Stat. § 302.113(1).

5
 No. 2013AP1724.akz

second Milwaukee County offense on August 10, 2011, seven days

after PAT's repeal. Singh pled guilty to one count of Obtain

Controlled Substance by Fraud6 for the July 25 offense, and to

one count of Obtain Controlled Substance by Fraud for the

August 10 offense.

¶146 On December 13, 2011, Singh's probation for the

Waukesha offense was revoked and his stayed sentence of

imprisonment (consisting of 18 months confinement plus 18 months

extended supervision) was imposed. He was returned to jail to

await sentencing on the Milwaukee County offenses.

¶147 On December 29, 2011, Singh was sentenced for the

Milwaukee County offenses. For the July 2011 Milwaukee offense,

he was sentenced to 24 months initial confinement and 36 months

extended supervision, to be served consecutively to the Waukesha

sentence.7 For the August 2011 Milwaukee offense, he was

sentenced to 24 months initial confinement and 36 months

extended supervision, to run concurrently to all other

sentences. In other words, the August 2011 Milwaukee sentence
was concurrent to both the Waukesha sentence (18 months

6
Singh also pled guilty to one count of Obtain Prescription
Drug with Fraud in this case. This is an unclassified
misdemeanor. See Wis. Stat. § 450.11(7)(a) (2011-12). For this
count, he was sentenced to six months in a house of correction,
to run concurrently with all sentences. Because this sentence
is irrelevant to the issue at hand, I will not discuss it
further.
7
When consecutive sentences are imposed, they are computed
as one continuous sentence. Wis. Stat. § 302.113(4). A person
serves all terms of confinement before serving any terms of
extended supervision. Id.

6
 No. 2013AP1724.akz

confinement and 18 months extended supervision) as well as the

July 2011 Milwaukee sentence (24 months confinement and 36

months extended supervision). Singh's first day in prison was

January 4, 2012.8

¶148 Singh filed a petition for positive adjustment time on

the Waukesha case with the Racine Correctional Institution.9

When the DOC refused to process his request, Singh filed a

petition for a writ of habeas corpus in the Racine County

circuit court on June 28, 2013, alleging he was also due PAT on

the July 2011 Milwaukee sentence.10 The DOC filed a motion to

quash the writ, which the circuit court granted. The court of

appeals reversed in part and affirmed in part, finding that the

ex post facto clause required the DOC to allow Singh to earn PAT

credit toward his sentences for both his Waukesha and July 2011

Milwaukee offenses. This appeal followed.

8
He received 159 days of credit for the conditional jail
time served on the Waukesha sentence, as well as 234 days of
confinement time credit for days he spent in jail awaiting
hearings and awaiting transfer to the prison. This amounted to
a total of 13 months confinement credit toward the Waukesha and
July 2011 Milwaukee sentences, which he in fact received.
9
Singh has filed numerous motions with various entities
related to his convictions. I will only discuss those necessary
to the disposition of this case.
10
After his arrival in prison, Singh filed a petition for
positive adjustment time on the Waukesha sentence. It is
unclear from the record exactly what date this petition was
filed. On May 2, 2012, the DOC sent a letter to the circuit
court explaining that it refused to verify Singh's eligibility
for PAT. Singh's June 2013 petition for a writ of habeas corpus
was based upon the DOC's refusal to process his PAT eligibility
petition upon his arrival in prison.

7
 No. 2013AP1724.akz

¶149 While the appeal was pending before this court, Singh

was released to extended supervision.11 On July 14, 2015, the

Waukesha County circuit court modified Singh's sentence to one

year in jail with credit for time served and vacated the

extended supervision portion of the sentence.12

¶150 Consequently, we find the case before us in the

following posture: Singh's sentence in the Waukesha case is now

one year in jail and has been served. The initial Waukesha

bifurcated sentence of imprisonment——18 months confinement and

18 months extended supervision——no longer exists. As for the

two Milwaukee concurrent sentences, Singh has served 29 months

of confinement and is currently on extended supervision for both

the July 2011 and August 2011 Milwaukee offenses. According to

the information the DOC is representing to the world at large,

Singh's maximum discharge date is now November 28, 2016.13

¶151 Nonetheless, I proceed to discuss this case in terms

of the sentences that existed when Singh filed his writ of

11
Because Singh's jail credit amounted to 13.1 months and
he received no PAT on either sentence, his release-to-extended-
supervision date for the consecutive 18-month Waukesha and 24-
month July 2011 Milwaukee confinement terms was June 2, 2014 (18
months minus 13 months, plus 24 months, for a total of 29 months
from January 4, 2012: June 4, 2014).
12
The amendment to the Waukesha sentence was not revealed
to this court until oral argument. The details of the amended
sentence in Waukesha County Case No. 2008CF1368 are available on
CCAP (the Consolidated Court Automation Program case management
system). Available at https://wcca/wicourts.gov/index.xsl.
13
This date was obtained using the DOC's Offender Locator
search, available at http://offender.doc.state.wi.us/
lop/home.do

8
 No. 2013AP1724.akz

habeas corpus and at a time when the Waukesha sentence had not

been modified so as to moot its consideration of PAT credit. I

then will discuss the fact that habeas relief is unavailable to

Singh considering the facts as they now exist.

II. DISCUSSION

A. The Ex Post Facto Clauses

¶152 As a general proposition, the ex post facto clause

requires fundamental fairness and that individuals have fair

notice of the consequences of their crimes. Both the United

States Constitution and the Wisconsin Constitution have ex post

facto clauses.14 We follow United States Supreme Court precedent

that interprets the federal constitution's prohibition of ex

post facto laws when interpreting the Wisconsin Constitution's

ex post facto clause. State v. Thiel, 188 Wis. 2d 695, 699, 524

N.W.2d 641 (1994).

¶153 The Supreme Court of the United States has stated that

the purpose of the ex post facto clause is to ensure "that

legislative Acts give fair warning of their effect and permit
individuals to rely on their meaning until explicitly changed."

Weaver v. Graham, 450 U.S. 24, 28-29 (1981). It is also meant

to protect fundamental fairness by making the government "abide

by the rules of law it establishes," Carmell v. Texas, 529 U.S.

513, 532 (2000), and to "restrict governmental power by

restraining arbitrary and potentially vindictive legislation."

Weaver, 450 U.S. at 29.

14
See U.S. Const. art. I, §§ 9 and 10; Wis. Const. art. I,
§ 12.

9
 No. 2013AP1724.akz

¶154 Though the Supreme Court has "declined to articulate a

single 'formula' for identifying those legislative changes that

have a sufficient effect on substantive crimes or punishments to

fall within the constitutional prohibition," California Dep't of

Corr. v. Morales, 514 U.S. 499, 509 (1995), the formulation

"faithful to our best knowledge of the original understanding of

the Ex Post Facto Clause" is that stated in Beazell v. Ohio, 269

U.S. 167, 169-70 (1925):

It is settled, by decisions of this Court so well
known that their citation may be dispensed with, that
any statute which punishes as a crime an act
previously committed, which was innocent when done;
which makes more burdensome the punishment for a
crime, after its commission, or which deprives one
charged with crime of any defense available according
to law at the time when the act was committed, is
prohibited as ex post facto.
Collins v. Youngblood, 497 U.S. 37, 42-43 (1990). Following the

lead of the Supreme Court of the United States, this court in

Thiel adopted verbatim the Beazell formulation of ex post facto

laws. Thiel, 188 Wis. 2d at 703.

¶155 Consequently, the ex post facto clause prohibits only

those laws that fall into one of the Beazell categories. The

fact that the legislature changes a sentencing statute does not

automatically entitle a defendant to relief pursuant to the ex

post facto clause. Rather, the ex post facto clause provides

that "[l]egislatures may not retroactively alter the definition

of crimes or increase the punishment for criminal acts."

Collins, 497 U.S. at 43.
¶156 It is the question of whether the repeal of PAT

"increased the punishment" for Singh's 2008 Waukesha crime that
10
 No. 2013AP1724.akz

has divided this court. Some members of this court conclude

that the ex post facto clause prohibits the legislature from

making the punishment for an offense more burdensome than it was

at the time of commission, conviction, or sentencing for an

offense. They conclude that because Singh was sentenced in 2010

to bifurcated sentences that included the opportunity to earn

PAT, repeal of PAT retroactively increases the punishment Singh

received for that offense and is thus an ex post facto law.

Other members of this court contend that the ex post facto

clause requires only that the punishment for an offense not be

made more burdensome than it was on the day the offense was

committed. They conclude that because PAT was not the law in

2008 when Singh committed his Waukesha crime, the retroactive

repeal of PAT does not increase Singh's punishment for that

offense.

¶157 I write to explain that under either articulation of

the proper scope of the ex post facto clause, in this case,

Singh spent five more months in confinement than he should have
due to PAT's retroactive repeal. Thus, as will be demonstrated

below, regardless of whether the ex post facto inquiry compares

a new law to the law in effect (1) at the time of commission,

conviction, or sentencing, or (2) to the law in effect on only

the date of the commission of the offense, retroactive repeal of

11
 No. 2013AP1724.akz

PAT increased Singh's punishment for an offense already

committed in doing so and violated the ex post facto clause.15

1. PAT for both the 2008 Waukesha and July 2011
Milwaukee Sentences
¶158 If the ex post facto clause requires Singh to earn PAT

on both the original Waukesha bifurcated prison sentence and the

July 2011 Milwaukee prison sentence, Singh should have been

released to extended supervision on January 4, 2014.16 He was

released from confinement five months later. I will explain why

this is so.

¶159 Singh's original sentence for the Waukesha offense

consisted of 18 months confinement and 18 months extended

supervision. A full grant of PAT on that sentence (one-third of

18 months, so 6 months) would change that sentence to 12 months

(18 – 6 = 12) confinement and 24 months extended supervision

(18 + 6 = 24). The 6 months of PAT credit against confinement

prolongs the extended supervision by that same amount so not to

15
While I recognize that the Waukesha sentence would no
longer qualify for PAT because it is a jail sentence, I analyze
these sentences in terms of how they existed at the time he
filed his request for PAT.
16
I recognize that the DOC uses certain procedures for
calculating release dates and that consequently, an inmate's
actual release date does not always correspond exactly to the
date upon which the average person would consider that a "month"
has passed on the calendar. See, e.g., Wis. Stat. § 302.113(8)
("Releases to extended supervision from prison shall be on the
Tuesday or Wednesday preceding the date on which he or she
completes the term of imprisonment."). Though small
discrepancies in the exact day Singh would have been released in
the scenarios given here may exist, they do not impact my
analysis.

12
 No. 2013AP1724.akz

change the overall length of the sentence. See Wis. Stat.

§ 302.113(3)(e).

¶160 The consecutive July 2011 Milwaukee sentence consisted

of 24 months confinement and 36 months extended supervision. A

full grant of PAT on that sentence (one-third of 24 months, so 8

months) would change that sentence to 16 months confinement

(24 – 8 = 16) and 44 months extended supervision (36 + 8 = 44).

¶161 Singh was otherwise also due approximately 13 months

(393 days) of jail credit to the confinement portion of his

sentence for time otherwise spent in custody for the Waukesha

and July 2011 Milwaukee offenses. This would further affect the

sentences so to then require essentially 15 total months of

confinement because the Waukesha sentence of 12 months is less

than the 13 months credit due, and the remaining July sentence

of 16 months would receive the remaining one month of credit in

order to give him full credit for the time spent in custody.17

As was demonstrated above, he would still have 44 months

extended supervision, but that part of the sentence would begin
only after all confinement was served.

¶162 So, assuming he was due PAT for the Waukesha and July

2011 Milwaukee sentences, Singh should have served 15 months

confinement (the Waukesha sentence usurped by the credit due

plus 15 months (16 – 1 = 15) for the July 2011 Milwaukee

17
When two consecutive sentences are imposed, jail credit
for custody that is connected to both sentences reduces the term
of confinement of the "first" sentence to be served. See State
v. Boettcher, 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988).

13
 No. 2013AP1724.akz

sentence). Singh's first day in prison on this sentence was

January 4, 2012. If Singh was entitled to a full grant of PAT

on both sentences, the confinement term of this sentence should

have ended March 4, 2013——15 months from January 4, 2012.

¶163 However, Singh would not have been released March 4,

2013, because Singh was also serving the concurrent August 2011

Milwaukee sentence of 24 months confinement and 36 months

extended supervision at this time (concurrent to both the above

Waukesha sentence and July 2011 Milwaukee sentence). It is

undisputed that for the August 2011 Milwaukee offense, Singh was

due neither PAT nor jail credit under the statute. The August

2011 Milwaukee sentence also began on January 4, 2012, because

it was concurrent to all other sentences (including the Waukesha

sentence which came first and began on January 4, 2012). The

confinement term on this August 2011 Milwaukee sentence would

have thus ended January 4, 2014——24 months from January 4, 2012.

As a result, while this concurrent sentence would be the reason

for keeping Singh in confinement until January 4, 2014, it could
not be the reason for keeping Singh in confinement another five

months, as he was, until June 2, 2014.

¶164 Consequently, if the ex post facto clause looks to the

law at the time of commission, conviction, or sentencing (as

some of my colleagues would conclude), and Singh was due PAT on

both the Waukesha sentence and the July 2011 Milwaukee sentence,

he should have been released to extended supervision on

January 4, 2014, not June 2, 2014. Because the DOC refused to
process Singh's PAT request and no court hearing was held, he

14
 No. 2013AP1724.akz

thus served a full 29 months of confinement

(18 – 13 + 24 = 29). He was released June 2, 2014——29 months

from the day his sentences began on January 4, 2012.

¶165 The only way to conclude that Singh should have spent

29 months in confinement would be to surmise that he was due no

PAT credit on either sentence. Only one of my colleagues would

so decide that is the case. Indeed, it is difficult to conclude

that he would not be due PAT on at least the July 2011 Milwaukee

sentence given the fact that PAT was the law in place on the

date of commission of that offense.18

¶166 However, as I have otherwise discussed in this

section, if the ex post facto inquiry compares a new law to the

law in effect at the time of commission, conviction, or

sentencing for an offense, PAT's repeal unconstitutionally

increased the punishment for Singh's Waukesha and July 2011

Milwaukee offenses and caused him to serve an extra five months

confinement. He was released June 2, 2014, and PAT combined

with the concurrent August 2011 Milwaukee sentence would have
allowed him to be released five months earlier on January 4,

2014, even with consideration of the concurrent August 2011

Milwaukee case.

18
The law in effect on July 25, 2011, when Singh committed
the offense, required Singh to serve 16 months confinement in
prison on the sentence he received for that offense. The law in
effect after PAT's repeal on August 3, 2011, required Singh to
serve 24 months confinement in prison on the sentence he
received for the same offense. This is an increase in
punishment for the July 25, 2011 Milwaukee offense that took
effect after July 25, 2011. Under any reading of Beazell and
Thiel, the ex post facto clause prohibits this.

15
 No. 2013AP1724.akz

2. PAT For Only the July 2011 Milwaukee Sentence

¶167 It seems that all but one of my colleagues could agree

that Singh is at least due PAT for the July 2011 Milwaukee

sentence which ran consecutive to the earlier Waukesha sentence.

Even under this narrower interpretation of the ex post facto

clause——comparing a new law only to the law that existed on the

date of commission of the offense——PAT's repeal still caused

Singh to spend an additional five months in prison. Even

according to the narrowest view of the ex post facto inquiry

being put forth by members of this court, Singh should have

earned PAT on the July 2011 Milwaukee sentence. I will now

demonstrate how even under this narrower interpretation, PAT's

repeal unconstitutionally required Singh to serve five extra

months confinement in prison.

¶168 Singh's original sentence for the Waukesha offense

consisted of 18 months confinement and 18 months extended

supervision. If no PAT was due on this sentence, it remains as-

is.
¶169 The July 2011 Milwaukee sentence consisted of 24

months confinement and 36 months extended supervision and was

consecutive to the Waukesha case. A full grant of PAT on that

sentence alone (one-third of 24 months, so 8 months) would

change that sentence to 16 months confinement (24 – 8 = 16) and

44 months (36 + 8 = 44) extended supervision.

¶170 As has been discussed, Singh was also otherwise due

approximately 13 months jail credit on the confinement portion
of his sentence. After all confinement is served, he would then

16
 No. 2013AP1724.akz

begin his 44 months of extended supervision (the concurrent

August 2011 sentence of 36 months extended supervision would

conclude within this 44 months).

¶171 So, if Singh was due PAT for only the July 2011

Milwaukee sentence, Singh should have served 21 months

confinement (18 months for the Waukesha sentence, minus 13

months for sentence credit due, plus 16 months for the July 2011

Milwaukee sentence) (18 – 13 + 16 = 21). Singh's first day in

prison on the consecutive sentences was January 4, 2012. If

Singh was entitled to PAT on only the July 2011 Milwaukee

sentence, the confinement term of his consecutive sentences

should have ended October 4, 2013——21 months from January 4,

2012. Below, I will explain why it did not.

¶172 Recall, Singh was also serving the concurrent August

2011 Milwaukee sentence of 24 months confinement and 36 months

extended supervision at this time. Singh was due no PAT or jail

credit for the August 2011 Milwaukee offense. The August 2011

Milwaukee sentence also began on January 4, 2012. The
confinement term on this August 2011 Milwaukee sentence (24

months concurrent, for which all agree no PAT is due) would have

nonetheless kept Singh incarcerated until January 4,

2014——24 months from January 4, 2012.

¶173 Consequently, even if the ex post facto clause looks

only to the law on the date of commission of the offense and

Singh was due PAT only on the July 2011 Milwaukee sentence,

Singh still should have been released to extended supervision on
January 4, 2014. On that date, he would have completely served

17
 No. 2013AP1724.akz

his terms of confinement on all three sentences. Because the

DOC refused to process Singh's PAT request, he served a full 29

months confinement (18 months for the Waukesha sentence, minus

13 months for sentence credit, plus 24 months for the July 2011

Milwaukee sentence, equals 29 months confinement).

¶174 He was released June 2, 2014——29 months from the day

his sentences began on January 4, 2012. Only one of my

colleagues asserts that he could never be due PAT for any of the

sentences, and thus release on June 2, 2014 (29 months

confinement) according to her, is the appropriate term of

confinement. The other six members of this court could

conclude, however, that Singh is at least due PAT for the

July 2011 Milwaukee sentence. Thus, under the facts of this

case, all but one justice should agree that Singh should have

been required to be released January 4, 2014, as there is no

sentence that would have required him to be confined longer.

¶175 Even though it seems apparent that Singh should have

been released five months earlier, regardless of whether the ex
post facto clause analysis is as stated in section II.A.1., or

it is as stated in section II.A.2, the bottom line is that under

either analysis, PAT's repeal unconstitutionally increased

Singh's punishment by five months confinement in prison. Under

the particular facts of this case, Singh however finds himself

in the unique position of being entitled to no relief under his

petition for habeas corpus. As I will explain below, even if

habeas relief may have been appropriate in the past, the writ is
not now available to Singh.

18
 No. 2013AP1724.akz

B. Habeas Corpus

¶176 Habeas corpus is a civil proceeding with origins in

the common law, and its availability is guaranteed by the

Wisconsin and United States constitutions.19 State ex rel. Haas

v. McReynolds, 2002 WI 43, ¶11, 252 Wis. 2d 133, 643 N.W.2d 771.

It is an equitable remedy that is available to a prisoner "when

there is a pressing need for relief or where the process or

judgment by which a petitioner is held is void." Id. (citation

omitted). "The writ of habeas corpus is a procedural device for

subjecting executive, judicial, or private restraints on liberty

to judicial scrutiny. Where it is available, it assures among

other things that a prisoner may require his jailer to justify

the detention under the law." Peyton v. Rowe, 391 U.S. 54, 58

(1968). The purpose of the writ "is to protect and vindicate

the petitioner's right of personal liberty by releasing the

petitioner from illegal restraint." State ex rel. Hager v.

Marten, 226 Wis. 2d 687, 692, 594 N.W.2d 791 (1999).

¶177 "Because it is an extraordinary writ, habeas corpus
relief is available only where the petitioner demonstrates: (1)

a restraint of his or her liberty, (2) which restraint was

imposed contrary to constitutional protections or by a body

lacking jurisdiction and (3) no other adequate remedy available

at law." State v. Pozo, 2002 WI App 279, ¶8, 258 Wis. 2d 796,

654 N.W.2d 12 (citation omitted). Importantly, "a writ will not

be issued where the 'petitioner has an otherwise adequate remedy

19
U.S. Const. art. I, § 9, cl. 2; Wis. Const. art. I, § 8,
cl. 2.

19
 No. 2013AP1724.akz

that he or she may exercise to obtain the same relief.'" Id.

(citation omitted).

¶178 With these principles in mind and regardless of

whether the principle of fair notice allows either the ex post

facto inquiry to (1) compare a new law to the law at the time of

commission, conviction, or sentencing for an offense, or (2)

compare a new law to the law in effect only at the time of

commission of the offense, I conclude that Singh is not entitled

to any relief in his petition for habeas corpus.

¶179 In Singh's petition for a writ of habeas corpus, he

stated that he was serving a consecutive sentence composed of 18

months initial confinement and 18 months extended supervision

for the Waukesha case, and 24 months initial confinement and 36

months extended supervision for the July 2011 Milwaukee case.20

He contended that denying PAT to inmates who had committed

offenses prior to PAT's August 3, 2011 repeal was an ex post

facto violation pursuant to the decisions of the Supreme Court

of the United States in Weaver v. Graham, 450 U.S. 24 (1981),
and Miller v. Florida, 482 U.S. 423 (1987). Consequently, he

alleged, he was eligible to earn PAT and had earned sufficient

PAT on these two sentences so to entitle him to release, thus

his continuing detention was illegal. See State ex rel.

Goodchild v. Burke, 27 Wis. 2d 244, 251, 133 N.W.2d 753 (1965)

(holding that Goodchild's claims of constitutional error that

would invalidate his murder conviction could be reviewed by

20
Singh's petition made no mention of the August 2011
Milwaukee concurrent sentence.

20
 No. 2013AP1724.akz

habeas corpus even though he could not be discharged from

custody due to a concurrent burglary sentence). As will be

demonstrated next, even though there was a violation of the ex

post facto clause, Singh is not entitled to relief by way of his

habeas petition.

¶180 First, Singh's Waukesha sentence has since been

reduced to one year in jail. Contrary to the suggestion of the

lead opinion in footnote 7, the plain language of the statutes

is very clear that PAT is earned only on a prison

sentence——it cannot be earned on a jail sentence. See Wis.

Stat. § 302.113(1) (2009-10) ("An inmate is subject to this

section if he or she is serving a bifurcated sentence imposed

under s. 973.01."). Wisconsin Stat. § 973.01 is the sentencing

statute for prison sentences.21 While it once was, Singh's

Waukesha sentence is no longer a prison sentence. He is

entitled to no habeas relief on this sentence because he could

not be entitled to PAT for a jail sentence.22 He cannot be due

habeas relief for being denied something for which he does not
qualify. See State ex rel. Wohlfahrt v. Bodette, 95

21
"[W]henever a court sentences a person to imprisonment in
the Wisconsin state prisons for a felony committed on or after
December 31, 1999, or a misdemeanor committed on or after
February 1, 2003, the court shall impose a bifurcated sentence
under this section." Wis. Stat. § 973.01(1).
22
The record is not clear as to why the Waukesha sentence
was amended, but it is clear that Singh is in a better position
now because he no longer has any extended supervision in that
case, he could not be returned to prison on that sentence, and
he received a result better than could have been given had he
received the requested relief in his habeas petition.

21
 No. 2013AP1724.akz

Wis. 2d 130, 132, 289 N.W.2d 366 (Ct. App. 1980) ("[T]he extent

of an equitable remedy is limited only by the effect of the

constitutional violation" (citation omitted).)

¶181 Second, even if Singh were granted all of the relief

requested in his petition for habeas corpus, he would have a

longer, not shorter, term of extended supervision to serve.23

Nonetheless, the record reflects that his extended supervision

terms have now been reduced by six months, as a publicly-

available website reflects that Singh's maximum release date is

now November 28, 2016.24 Once again, he finds himself in a

better, and not worse, position with an earlier release date

than had he received PAT and his confinement time was converted

to extended supervision.

¶182 Third, his current status as an offender on extended

supervision is indeed a legally-imposed status such that he

could not be entitled to habeas relief. It is the sentence

imposed by the sentencing judge that authorizes——legally——the

custody of the defendant.25 See Earley v. Murray, 451 F.3d 71,
74 (2d Cir. 2006). Consequently, the current restraint on

Singh's liberty is not "imposed contrary to constitutional

23
Recall from sections II.A.1. and II.A.2., had he received
all of the relief requested in his habeas petition, he would
have at least 44 months extended supervision to serve.
24
Presumably, his release date has been backdated to
reflect the change in the Waukesha sentence.
25
Assuming, of course, that the sentencing court considers
the appropriate factors and imposes a sentence within the
statutorily authorized range. See, e.g., State v. Gallion, 2004
WI 42, ¶43, 270 Wis. 2d 535, 678 N.W.2d 197.

22
 No. 2013AP1724.akz

protections" as would be required for Singh to be entitled to a

writ of habeas corpus. In other words, he is currently on

extended supervision and should be.

¶183 Fourth, if somehow further relief is due Singh,

because he would have other remedies at law, he is not due any

relief by a writ of habeas corpus.26 Habeas relief is not due to

one who has other adequate remedies at law. To the extent that

further relief is warranted, Singh indeed has other adequate

remedies at his disposal. For example, Singh can petition the

DOC for application of any extra time he may have spent in

confinement toward any confinement he will serve if his extended

supervision is revoked; he can seek sentence credit under Wis.

Stat. § 973.155; or he can bring a civil suit for monetary

damages, if due. Because this is so, Singh's relief does not

come by way of a writ of habeas corpus. See Haas, 252

Wis. 2d 133, ¶14 ("We have long and consistently held that the

extraordinary writ of habeas corpus is not available to a

petitioner when the petitioner has other adequate remedies
available" (citations omitted).).

¶184 For the above stated reasons, I agree only with the

lead opinion's conclusion to affirm in part and reverse in part

the court of appeals. The opinion of Justice Ann Walsh Bradley

is joined only by Justice Shirley S. Abrahamson. Justice

David T. Prosser concurs, but does not join Justice Ann Walsh

26
I am not opining as to whether Singh may have other civil
remedies to pursue.

23
 No. 2013AP1724.akz

Bradley's opinion.27 While Justice Prosser engages in a

thorough, reasonable, and persuasive analysis concerning Singh's

ex post facto challenge, the facts of this case are so unique

that regardless of the ex post facto analysis, the conclusion is

the same. As discussed in this writing, the peculiar facts of

this case leave Singh with no habeas relief.

¶185 As the old adage warns, "bad facts make bad law."

This case is a prime example of bad facts, and I am concerned

that by undertaking an unnecessary review of the scope of the ex

post facto clause we risk creating bad law. Fortunately, we do

not need to do so here. As explained, under either

interpretation of the proper scope of the ex post facto clause

proffered by the members of the court, the result in this

unusual case remains the same. Put simply, Singh is due no

relief on his writ of habeas corpus. Judicial restraint

requires that we resolve cases on the narrowest possible

grounds. See, e.g., DOJ v. DWD, 365 Wis. 2d 694, ¶29 ("[W]e are

generally obliged to decide our cases on the 'narrowest possible
grounds'" (quoting Subdiaz-Osorio, 357 Wis. 2d 41, ¶143

(Ziegler, J., concurring).)). Accordingly, a decision on the

precise scope of the ex post facto clause is unnecessary because

Singh is entitled to no habeas corpus relief. Consequently

remand is inappropriate in this case.

¶186 For the foregoing reasons, I respectfully concur in

part and dissent in part.

27
Chief Justice Roggensack and Justice Rebecca G. Bradley
have authored separate but dissenting opinions.

24
 No. 2013AP1724.akz

¶187 I am authorized to state that Justice MICHAEL J.

GABLEMAN joins this opinion.

25
 No. 2013AP1724.pdr

¶188 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The

United States Supreme Court and this court have concluded that

the ex post facto clauses of both Constitutions forbid enactment

of laws that impose punishment for an act that was not

punishable at the time the act was committed or that impose

punishment that is greater than it was at the time the act was

committed. Peugh v. United States, __ U.S. __, 133 S. Ct. 2072,

2078 (2013); Weaver v. Graham, 450 U.S. 24, 28 (1981); State v.

Kurzawa, 180 Wis. 2d 502, 511, 509 N.W.2d 712 (1994). The lead

opinion attempts to expand the definition by which we evaluate

whether a statute violates the ex post facto clauses of the

federal and state constitutions because it concludes that when a

law changes after conviction or sentencing, an ex post facto

violation occurs.1

¶189 Therefore, although I conclude that one of Aman

Singh's three crimes under review herein has potential for an ex

post facto violation under the correct ex post facto analysis, I

do not join the lead opinion because I conclude the lead
opinion's definition of ex post facto law is incorrect.

Furthermore, I agree with the court of appeals' conclusion that

the procedural change in the duties of circuit courts did not

contravene ex post facto prohibitions.2 The lead opinion's

1
Lead op., ¶¶36, 44, 47.
2
Because Justice Rebecca G. Bradley ably discusses and
decides this issue, I join her opinion in that regard rather
than writing about this issue myself. See Justice Rebecca G.
Bradley's dissent, ¶¶248-49.

1
 No. 2013AP1724.pdr

expansion of the definition of an ex post facto law misstates

United States Supreme Court precedent and the precedent of this

court. Accordingly, I would reverse the court of appeals'

decision in part; affirm it in part; and I respectfully dissent

from the lead opinion herein.

I. BACKGROUND

¶190 The lead opinion and the concurrence/dissent of

Justice Annette Ziegler ably set out the factual foundation that

bears on Singh's claim. Therefore, I repeat only those facts

necessary to enable the reader to understand the discussion that

follows.

¶191 The issues in this appeal arise from Singh's

confinement in prison as a result of prescription forgeries for

narcotics in Waukesha and Milwaukee counties and from a

statutory enactment, effective October 1, 2009 and repealed

August 3, 2011, that provided an opportunity for a confined

inmate to earn positive adjustment time (PAT) that was applied

to reduce the inmate's period of confinement. The legislative
repeal of PAT permitted credit for PAT earned between October 1,

2009 and August 3, 2011. Wis. Stat. § 973.198.

A. Dates of Criminal Conduct

¶192 Singh committed the crimes that we review herein on

three different dates. He committed the first offense

October 16, 2008 in Waukesha County, before the October 1, 2009

effective date of the PAT statutes, Wis. Stat. § 302.113 (2009-

10) and Wis. Stat. § 304.06 (2009-10).

2
 No. 2013AP1724.pdr

¶193 Singh committed his second offense July 25, 2011 in

Milwaukee County, while PAT was possible. He committed his

third offense on August 10, 2011 in Milwaukee County, after PAT

was repealed on August 3, 2011.

B. Singh's Convictions

¶194 On March 29, 2010, Singh pled guilty in Waukesha

County Circuit Court to the crime committed October 16, 2008.

Four other alleged violations of Wis. Stat. § 961.43(1)(a) were

dismissed but read-in.

¶195 On November 9, 2011, at a joint plea hearing, Singh

pled guilty to the Milwaukee County July 25, 2011 offense, and

to the Milwaukee County August 10, 2011 offense. A joint

sentencing hearing was scheduled for December 29, 2011.

C. Singh's Sentences

¶196 On April 29, 2010, the Waukesha County Circuit Court

sentenced Singh to a bifurcated prison sentence of 18 months'

confinement and 18 months' extended supervision for the 2008

crime. The court stayed imprisonment and imposed three years'
probation conditioned on six months' jail time with Huber

privileges.

¶197 On December 13, 2011, the Waukesha County Circuit

Court revoked Singh's probation due to Milwaukee County offenses

and vacated the stay of the initial sentence of 18 months'

confinement and 18 months' extended supervision. Any

opportunity for PAT based on confinement in prison for the

Waukesha County crime could occur only if Singh's confinement

3
 No. 2013AP1724.pdr

occurred before August 3, 2011 when PAT was repealed.3 Wis.

Stat. § 973.198. However, Singh's first day of confinement for

any crime was January 4, 2012.

¶198 On August 6, 2010, the Waukesha County Circuit Court

entered an order, which related that, before Singh's confinement

began, the court had granted Singh 159 days of sentence credit

for conditional jail time. On December 13, 2011, pursuant to

the order of the Division of Hearing and Appeals, Singh received

an additional 234 days of sentence credit for custody subsequent

to revocation and prior to Singh's receipt at prison.

Therefore, as of Singh's first day of confinement, he received

393 days of sentence credit, approximately 13 months, that was

applied against his sentence for the Waukesha County crime.

¶199 On July 14, 2015, the Waukesha County Circuit Court

entered an amended judgment that documented the credit given and

also converted the Waukesha County sentence to one year in jail,

with credit for time served. The court also vacated the 18

months of extended supervision initially imposed.

3
When an inmate who is serving a sentence imposed
under s. 973.01 and who has earned positive adjustment
time under s. 302.113, 2009 stats., or under s.
304.06, 2009 stats., has served the confinement
portion of his or her sentence less positive
adjustment time earned between October 1, 2009, and
August 3, 2011, he or she may petition the sentencing
court to adjust the sentence under this section, based
on the number of days of positive adjustment time the
inmate claims that he or she has earned.

Wis. Stat. § 973.198(1) (2011-12) (emphasis added).

4
 No. 2013AP1724.pdr

¶200 On December 29, 2011, Singh was sentenced for both

Milwaukee County offenses. For the July 25, 2011 offense, he

was sentenced to 24 months' initial confinement and 36 months'

extended supervision, to be served consecutively to the Waukesha

County sentence, but concurrently with the other Milwaukee

County sentence. His first day of confinement for the July 25,

2011 crime is uncertain due to the modification of the Waukesha

County judgment.4

¶201 For the August 10, 2011 offense, Singh was sentenced

to 24 months' initial confinement and 36 months' extended

supervision, to run concurrently with all other sentences.5 On

the sentence for the August 10, 2011 Milwaukee County crime,

Singh had no opportunity to earn PAT because the PAT statutes

were repealed August 3, 2011.

4
The amended judgment removed confinement and extended from
Singh's sentence for the Waukesha County crime, converting his
sentence to jail time. This may have resulted in the
confinement for both Milwaukee County crimes to actually have
been served concurrent with each other from the first day.
5
The sentencing provisions for the two Milwaukee County
crimes also could have resulted in the confinement for the
August 10, 2011 crime beginning before the confinement for the
July 25, 2011 crime. This was possible because the sentence for
the July 25 crime was consecutive to the sentence for the
Waukesha County crime, while the sentence for the August 10
crime was concurrent with the sentence for the Waukesha County
crime. The first day of confinement for any crime was
January 4, 2012.

5
 No. 2013AP1724.pdr

II. DISCUSSION

A. Standard of Review

¶202 Singh brings an as-applied constitutional challenge to

Wis. Stat. § 973.198, claiming that it is an unconstitutional ex

post facto law when applied to him. In such a challenge, we

assume that the statute is constitutional, just as we do when a

facial challenge to a statute is made on constitutional grounds.

Tammy W-G. v. Jacob T., 2011 WI 30, ¶47, 333 Wis. 2d 273, 797

N.W.2d 854. However, we do not presume that the State has

applied the statute in a constitutional manner. Id., ¶48.

Rather, our test of the statute's application is driven by the

analysis for the right that the proponent asserts has been

burdened by the statute. Id., ¶¶49-51.

¶203 Here, Singh asserts in his petition for writ of habeas

corpus that application of Wis. Stat. § 973.198 to the crimes he

committed and for which he was convicted and sentenced would

burden his personal liberty in contravention of the ex post

facto provisions of the federal and state constitutions.
¶204 Whether a petition for writ of habeas corpus has been

properly denied presents a mixed question of fact and law.

State v. Pozo, 2002 WI App 279, ¶6, 258 Wis. 2d 796, 654 N.W.2d

12. We will not overturn findings of historic fact unless they

are clearly erroneous. Id. However, under the facts presented,

we independently review as a question of law whether habeas

should have been granted. State ex rel. Woods v. Morgan, 224

Wis. 2d 534, 537, 591 N.W.2d 922 (Ct. App. 1999). Here, the
historic facts are not in dispute. Therefore, we decide whether

6
 No. 2013AP1724.pdr

a writ of habeas corpus should have issued as a matter of law.

Id.

B. Ex Post Facto Prohibitions

1. General principles

¶205 Both the United States Constitution and the Wisconsin

Constitution have clauses that prohibit ex post facto laws.6 Ex

post facto is a Latin phrase that means "after the fact."

Black's Law Dictionary 661 (9th ed. 2009). The question this

case presents is: which fact is the determining "fact" when

evaluating a contention that a particular law violates ex post

facto clauses. Stated otherwise: whether the correct ex post

facto analysis turns on the fact of crime commission, the fact

of conviction for the crime, the fact of sentencing for the

crime, or some combination thereof is the question presented in

this review.

¶206 The United States Supreme Court interprets the federal

constitution's ex post facto clause as prohibiting laws that

change the punishment for a crime after commission because crime
commission is the act for which notice of punishment is

required. Collins v. Youngblood, 497 U.S. 37, 42 (1990). We

follow United States Supreme Court precedent that interprets the

federal constitution's prohibition of ex post facto laws when

interpreting the Wisconsin Constitution's ex post facto clause.

State v. Thiel, 188 Wis. 2d 695, 699, 524 N.W.2d 641 (1994).

6
See U.S. Const. Art. I, §§ 9 and 10; Wis. Const. art. I,
§ 12.

7
 No. 2013AP1724.pdr

¶207 Thiel is an important case because in it we reviewed

United States Supreme Court decisions that had broadened the

definition of ex post facto laws in ways that the Supreme Court

later concluded were erroneous. Id. at 699-703. In following

Supreme Court precedent, initially, we had adopted that more

expansive definition of ex post facto laws. Id. at 701.

However, we later concluded our expansion was erroneous because

we had done so in reliance on subsequently overruled Supreme

Court decisions. Id. at 703.

¶208 To explain further, we noted in Thiel that the United

States Supreme Court in Collins withdrew language from Kring v.

Missouri, 107 U.S. 221 (1883), which included within the

definition of ex post facto "laws that altered a defendant's

situation to his or her disadvantage." Thiel, 188 Wis. 2d at

700.

¶209 We had earlier adopted this broad definition of ex

post facto laws to include laws that altered a defendant's

situation to his or her disadvantage in State ex rel. Mueller v.
Powers, 64 Wis. 2d 643, 646, 221 N.W.2d 692 (1974). In Mueller,

we relied on Medley, Petitioner, 134 U.S. 160, 171 (1890).

Mueller, 64 Wis. 2d at 645-46. Medley had followed the

expansive definition in Kring that, in Collins, the Supreme

Court concluded was erroneous.7 See Medley, 134 U.S. at 171.

7
The lead opinion relies on State ex rel. Mueller v.
Powers, 64 Wis. 2d 643, 221 N.W.2d 692 (1974), as did the court
of appeals. Lead op., ¶¶63-66. That reliance is in direct
contravention of State v. Thiel, 188 Wis. 2d 695, 703, 524
N.W.2d 641 (1994) and of Collins v. Youngblood, 497 U.S. 37, 42
(1990), which we followed in Thiel. Similarly, the lead opinion
(continued)
8
 No. 2013AP1724.pdr

¶210 Before us, Thiel had relied on the Mueller recitation

that expanded the definition of ex post facto laws to include

laws that "alter the situation of an accused to his or her

disadvantage." Thiel, 188 Wis. 2d at 702. Because we follow

United States Supreme Court precedent when interpreting both the

United States Constitution's and the Wisconsin Constitution's ex

post facto clauses, we concluded that Mueller set forth an

incorrect definition and we withdrew that overly broad

definition from our interpretations of ex post facto clauses.

Id. at 703.

¶211 Collins was clear in overruling prior United States

Supreme Court decisions that had held that any change in the law

that alters the situation of a party to his disadvantage

violated the ex post facto prohibition and explicitly reaffirmed

the definition set out in Calder v. Bull, 3 U.S. 386, 390-92

(1798):

1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law
that aggravates a crime, or makes it greater than it
was, when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence, and

relies on State ex rel. Eder v. Matthews, 115 Wis. 2d 129, 133,
340 N.W.2d 66 (Ct. App. 1983), for the proposition that "[a] law
which increases or alters the punishment of an offender to his
detriment, after he has been convicted and sentenced,
constitutes an ex post facto law . . . ." (emphasis omitted)
(internal quotation marks omitted). Lead op., ¶45. However,
Matthews solely relies on Mueller; therefore, Matthews also is
in contravention of our subsequent holding in Thiel. See
Matthews, 115 Wis. 2d at 133.

9
 No. 2013AP1724.pdr

receives less, or different, testimony, than the law
required at the time of the commission of the offence,
in order to convict the offender.
Collins, 497 U.S. at 42 (emphases removed).

¶212 Subsequent to Collins and in order to avoid future

errors about the definition of ex post facto laws under the

Wisconsin Constitution, we held:

[A]n ex post facto law, prohibited by the Wisconsin
Constitution, is any law: "which punishes as a crime
an act previously committed, which was innocent when
done; which makes more burdensome the punishment for a
crime, after its commission, or which deprives one
charged with crime of any defense available according
to law at the time when the act was committed."
Thiel, 188 Wis. 2d at 703 (quoting Collins, 497 U.S. at 42).

¶213 United States Supreme Court decisions issued after

Collins, consistently employ crime commission as the act for

which notice of punishment is required under the ex post facto

clause. Peugh, 133 S. Ct. at 2078; see also Weaver, 450 U.S. at

28-29 (citing 12 cases).8 As the Supreme Court explained in

Peugh:

The Framers considered ex post facto laws to be
"contrary to the first principles of the social
compact and to every principle of sound legislation."
The Federalist No. 44, p. 282 (C. Rossiter ed. 1961)
(J. Madison). The Clause ensures that individuals
have fair warning of applicable laws and guards
against vindictive legislative action.

8
The lead opinion cites Weaver v. Graham, 450 U.S. 24
(1981), as though it supports the broad definition of ex post
facto laws that the lead opinion creates. Lead op., ¶¶39, 41,
47, 67. However, Weaver does not do so. Weaver employs the
date the crime was committed as the act from which it measures
whether a law is ex post facto. Weaver, 450 U.S. at 28.

10
 No. 2013AP1724.pdr

Peugh, 133 S. Ct. at 2084-85. Stated otherwise, crime

commission is the act for which notice of consequences is

required. "[T]he principle on which the Clause is based——the

notion that persons have a right to fair warning of that conduct

which will give rise to criminal penalties——is fundamental to

our concept of constitutional liberty." Marks v. United States,

430 U.S. 188, 191 (1977); Kurzawa, 180 Wis. 2d at 511.

¶214 The lead opinion employs a new definition of ex post

facto law when it changes the act from which ex post facto

effect is measured to include a temporary change in a law that

was repealed subsequent to conviction and sentencing.9 The lead

opinion states, "the early release provisions of 2009 Wis. Act

28 were retroactively in effect when Singh was convicted and

sentenced for the first offense, [the Waukesha County crime] as

well as at the time he committed the second offense."10

¶215 The definition created by the lead opinion affects

defendants who could not earn PAT when they committed the

criminal act, but due to a statutory enactment, could earn it at
the time of sentencing even though the opportunity was repealed

before the start of confinement.11 No United States Supreme

Court opinion supports the lead opinion's definition of ex post

facto law, nor does any opinion from this court.

9
Lead op., ¶¶36, 44, 47.
10
Id., ¶8.
11
Id., ¶33.

11
 No. 2013AP1724.pdr

¶216 In regard to Singh's first crime, which was committed

in Waukesha County October 16, 2008, there was no opportunity

for PAT in 2008. In 2009, PAT was enacted. Singh was convicted

and sentenced for the 2008 crime in 2010. The 2009 legislation

permitted him to benefit until PAT was repealed August 3, 2011,

if he were confined between October 1, 2009 and August 3, 2011.

¶217 Because the August 3, 2011 repeal of PAT caused the

law to be as it was in 2008 when Singh committed the first of

his crimes, the 2011 legislation did not impose punishment that

was greater than it was at the time Singh committed the first of

his crimes. In addition, Singh was not confined for any of his

crimes until January 4, 2012, after PAT was repealed.

Therefore, no ex post facto violation occurred with the repeal

of PAT for the 2008 Waukesha County crime, nor was he denied PAT

he earned before the repeal.

¶218 In regard to Singh's second crime, which was committed

in Milwaukee County on July 25, 2011, there was the opportunity

for PAT and accordingly, the potential for an ex post facto
violation if the PAT he earned had an effect on the duration of

his confinement. However, from the record before us, it is not

possible to make that factual determination, and even if it

were, habeas will not provide relief under the facts of this

case.

¶219 The potential for an ex post facto violation on the

second crime due to repeal of PAT is not possible to determine

due to the following circumstances presented by this case: (1)
Singh's third crime was committed on August 10, 2011, after PAT

12
 No. 2013AP1724.pdr

was repealed, and therefore, had no potential for PAT; (2)

initially, Singh received the same Wis. Stat. § 973.01 sentence

for the third crime as he received for his second crime, 24

months' confinement and 36 months' extended supervision and the

sentences were to be served concurrently; (3) however, the

sentence for Singh's second crime also was consecutive to the

sentence for Singh's first crime; (4) the sentence for Singh's

first crime, for which he initially was sentenced pursuant to

§ 973.01, was converted to a one-year jail sentence, with

extended supervision vacated, for which he received 13 months'

credit and from which he was released on "time served."

¶220 If the modification of the Waukesha County sentence

caused it to be only a one-year jail sentence for which he was

given 13 months' credit, then the sentences for his second and

third crimes both began January 4, 2012. Because the third

crime had no opportunity to earn PAT, it would not matter

whether Singh earned PAT on the sentence for his second crime

because he would not have been released from confinement any
earlier due to the concurrent sentence for his third crime.

¶221 In addition, Singh is no longer confined. He was

released to extended supervision on June 2, 2014; therefore, the

remedy of habeas——release from custody——provides nothing to

Singh at this point. It may be that Singh can prove, as a

factual matter, that he was confined on the second sentence

longer than should have occurred and that some type of relief

13
 No. 2013AP1724.pdr

may be accorded, but it is not due under a writ of habeas

corpus.12

¶222 In summary, by relying on the acts of conviction and

sentencing, the lead opinion creates an ex post facto violation

for Singh that is contrary to the constitutional precedent of

the United States Supreme Court and of this court.13

III. CONCLUSION

¶223 We continue to follow United States Supreme Court

precedent in regard to defining ex post facto laws. Because the

lead opinion does not do so and instead attempts to create an

expanded definition of ex post facto law, I do not join the lead

opinion in any respect. Furthermore, I agree with the court of

appeals' conclusion that the procedural change in the duties of

circuit courts did not contravene ex post facto prohibitions.

Accordingly, I would reverse the court of appeals' decision in

part; affirm it in part; and I respectfully dissent from the

lead opinion herein.14

12
See Justice Ziegler's concurrence/dissent, ¶¶167-75.
13
Lead op., ¶¶36, 44, 47.
14
As the lead opinion acknowledges, remand is not
appropriate as a majority of justices so conclude. Id., ¶1 n.1.

14
 No. 2013AP1724-CR.rgb

¶224 REBECCA G. BRADLEY, J. (dissenting). I dissent from

the lead opinion because Singh has not proven any ex post facto

violation in this case. As the lead opinion explains, Singh

contends that 2011 Act 38, which repealed Wis. Stat.

§ 302.113(2)(b)(2009-10) and § 304.06(1)(bg)1.(2009-10) and

created Wis. Stat. § 973.198 (2011-12), was an ex post facto

law.1 Singh argues the repealed statutes eliminated the

opportunity that previously existed to earn early release

through positive adjustment time (PAT), which Singh argues

increased his punishment. He also contends the process

established in § 973.198 delays up to 90 days the release of

inmates who earned PAT under the 2009 law and the standards for

early release changed under the 2011 law.

¶225 In challenging the 2011 law, Singh must overcome the

presumption that legislative enactments are constitutional. See

State v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665 N.W.2d

328. This court will indulge "every presumption to sustain the

law if at all possible," and will resolve any doubts in favor of

upholding the constitutionality of the challenged statute. Id.

(citation omitted). Singh bears the heavy burden of proving

that the statute is unconstitutional beyond a reasonable doubt.

Id.

1
All subsequent references to Wis. Stat. § 302.113 and
§ 304.06 will be to the 2009-10 version of the Wisconsin
Statutes, and all subsequent references to Wis. Stat. § 973.198
will be to the 2011-12 version of the Wisconsin Statutes.

1
 No. 2013AP1724-CR.rgb

¶226 Because Singh has failed to meet this heavy burden, I

would reverse the court of appeals' conclusion that the repeal

of the PAT statutes constituted a violation of the ex post facto

clause and I would affirm the court of appeals' holding that

Wis. Stat. § 973.198 is a procedural change, which does not

implicate ex post facto concerns.

I. BACKGROUND

¶227 This case presents an unusual factual scenario because

Singh committed his first crime before the PAT statutes were

enacted, committed his second crime when the PAT statutes were

in effect, and committed his third crime after the PAT statutes

had been repealed. He was convicted and sentenced on the first

crime when the PAT statutes were in effect, but this sentence

was stayed and not revoked until after the PAT statutes were

repealed. Singh's second and third crimes were joined for the

purposes of accepting his plea and sentencing. The plea and

sentence on the joined second and third crimes occurred after

the PAT statutes were repealed.

¶228 Thus, it is critical to decide what date is used in

analyzing whether Singh established an ex post facto violation:

is it the date Singh committed the crime, the date he was found

guilty of the crime, the date he was sentenced, or some

combination of the three? The timeline of Singh's crimes,

convictions, and sentences against the backdrop of truth-in-

sentencing law and the enactment and repeal of the PAT statutes

is as follows:

2
 No. 2013AP1724-CR.rgb

 October 16, 2008: Singh commits the first crime, a class

H felony in Waukesha.

 2008: A class H felony had a maximum total sentence of

six years, with a maximum initial confinement of three

years, plus up to a $10,000 fine. Truth-in-sentencing

law is in effect.

 October 1, 2009: 2009 Wis. Act 28 becomes effective.

Act 43 created Wis. Stat. § 302.113(2)(b) and Wis. Stat.

§ 304.06(1)(bg)1, giving inmates the opportunity to earn

PAT days which, if approved by the circuit court, allowed

release to extended supervision earlier than originally

imposed. This did not ever change the overall length of

the sentence; instead, any approved PAT days would be

added on to the extended supervision portion of a

sentence.

 2009: A class H felony had a maximum total sentence of

six years, with a maximum initial confinement of three

years, plus up to a $10,000 fine, which is the same

penalty as in 2008.

 March 29, 2010: Singh pleads guilty to the Waukesha

crime.

 April 29, 2010: Waukesha County Circuit Court sentences

Singh to three years, consisting of 18 months initial

confinement, followed by 18 months extended supervision.

The sentence is stayed and Singh is given probation with

six months of conditional jail time.

3
 No. 2013AP1724-CR.rgb

 2010: A class H felony had a maximum total sentence of

six years, with a maximum initial confinement of three

years, plus up to a $10,000 fine, which is the same

penalty as in 2008 and 2009.

 July 25, 2011: Singh commits the second crime, a class H

felony in Milwaukee County.

 August 3, 2011: 2011 Wis. Act 38 goes into effect. The

Act repeals inmates' opportunity to earn PAT days, except

that current inmates are allowed to keep the PAT days

earned between October 1, 2009 (the effective date of

this part of 2009 Wis. Act 43) and August 3, 2011. 2011

Wis. Act 38 also created Wis. Stat. § 973.198, which

provides:

(1) When an inmate who is serving a sentence
imposed under s. 973.01 and who has earned
positive adjustment time under s. 302.113, 2009
stats., or under s. 304.06, 2009 stats., has
served the confinement portion of his or her
sentence less positive adjustment time earned
between October 1, 2009, and August 3, 2011, he
or she may petition the sentencing court to
adjust the sentence under this section, based on
the number of days of positive adjustment time
the inmate claims that he or she has earned.

(3) Within 60 days of receipt of a petition
filed under sub. (1), the sentencing court shall
either deny the petition or hold a hearing and
issue an order relating to the inmate's sentence
adjustment and release to extended supervision.

(5) If the court determines that the inmate
has earned positive adjustment time, the court
may reduce the term of confinement in prison by
the amount of time remaining in the term of
confinement in prison portion of the sentence,
less up to 30 days, and shall lengthen the term

4
 No. 2013AP1724-CR.rgb

of extended supervision so that the total length
of the bifurcated sentence originally imposed
does not change.

(6) An inmate who submits a petition under
this section may not apply for adjustment of the
same sentence under s. 973.195 for a period of
one year from the date of the petition.
 August 10, 2011: Singh commits another class H felony in

Milwaukee County, the third crime.

 November 9, 2011: Singh is convicted in Milwaukee County

Circuit Court on both the July 25 and August 10 crimes.

 December 13, 2011: Singh's probation on his Waukesha

conviction is revoked.

 December 29, 2011: Milwaukee County Circuit Court

sentences Singh to five years each on the two Milwaukee

crimes, consisting of two years' initial confinement,

followed by three years' extended supervision. The

sentence on the July 25, 2011 crime was consecutive to

his 2008 Waukesha sentence, but concurrent with the

August 10, 2011 sentence. The August 10, 2011 sentence

was imposed concurrent to any other sentence.

 2011: A class H felony had a maximum total sentence of

six years, with a maximum initial confinement of three

years, plus up to a $10,000 fine, which is the same

penalty as in 2008, 2009, and 2010.

 January 4, 2012: Singh starts his prison sentence.

 June 28, 2013: Singh files his habeas petition in

circuit court after the Department of Corrections

5
 No. 2013AP1724-CR.rgb

rejected Singh's request for PAT early release under Wis.

Stat. § 302.113(2)(b).

II. ANALYSIS

A

¶229 Given this timeline, it is essential to determine what

date to use in the ex post facto analysis. The lead opinion

followed the court of appeals' direction and lumped together

Singh's dates of commission, conviction, and sentencing: "Like

the court of appeals, we conclude that because the early release

provisions of 2009 Wis. Act 28 were retroactively in effect when

Singh was convicted and sentenced for the first offense, as well

as at the time he committed the second offense that the

retroactive repeal of positive adjustment time in 2011 Wis. Act

28 violates the ex post facto clauses of the Wisconsin and

United States Constitutions." Lead op., ¶8. The law does not

support this conclusion.

¶230 In analyzing whether a law is unconstitutionally ex

post facto, the date a crime was committed is the correct date

to use. Weaver v. Graham, 450 U.S. 24, 28 (1981)("The ex post

facto prohibition forbids the Congress and the States to enact

any law which imposes a punishment for an act which was not

punishable at the time it was committed." (emphasis added; one

set of quotation marks and quoted source omitted)). The United

States Supreme Court consistently uses the date of commission in

conducting an ex post facto analysis. See Garner v. Jones, 529

U.S. 244 (2000); Peugh v. United States, 133 S. Ct. 2072 (2013).
This court agreed in State v. Kurzawa, 180 Wis. 2d 502, 509

6
 No. 2013AP1724-CR.rgb

N.W.2d 712 (1994), that "ex post facto analysis is concerned

with changes in the law relative to the time the defendant

engaged in his allegedly illegal behavior." Id. at 513.

¶231 Courts use the date of commission because the purpose

of the ex post facto clause is to provide fair warning as to

what conduct will give rise to criminal penalties and what those

penalties will be. See Kurzawa, 180 Wis. 2d at 511 (citing

Marks v. United States, 430 U.S. 188, 191-92 (1977)). Our

Founders included a prohibition against ex post facto laws in

the Constitution to ensure against "manifestly unjust and

oppressive" laws that punish a person after the fact for conduct

that was not punishable before the law existed. See Calder v.

Bull, 3 U.S. (3 Dall.) 386, 390 (1798)(opinion of Chase, J.).

Calder explained:

The prohibition against their making any ex post facto
laws was introduced for greater caution, and very
probably arose from the knowledge, that the Parliament
of Great Britain claimed and exercised a power to pass
such laws, under the denomination of bills of
attainder, or bills of pains and penalties; the first
inflicting capital, and the other less, punishment.
These acts were legislative judgments; and an exercise
of judicial power. Sometimes they respected the
crime, by declaring acts to be treason, which were not
treason, when committed, at other times, they violated
the rules of evidence (to supply a deficiency of legal
proof) by admitting one witness, when the existing law
required two; by receiving evidence without oath; or
the oath of the wife against the husband; or other
testimony, which the courts of justice would not
admit; at other times they inflicted punishments,
where the party was not, by law, liable to any
punishment; and in other cases, they inflicted greater
punishment, than the law annexed to the
offence. . . . With very few exceptions, the
advocates of such laws were stimulated by ambition, or

7
 No. 2013AP1724-CR.rgb

personal resentment, and vindictive malice. To
prevent such, and similar, acts of violence and
injustice, I believe, the Federal and State
Legislatures, were prohibited from passing any bill of
attainder; or any ex post facto law.

Id. at 389 (footnotes omitted).
¶232 The ex post facto clause prohibits:

1st. Every law that makes an action, done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2nd. Every law
that aggravates a crime, or makes it greater than it
was, when committed. 3rd. Every law that changes the
punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence, and
receives less, or different, testimony, than the law
required at the time of the commission of the offence,
in order to convict the offender.
Id. at 390 (emphasis added). The ex post facto clause's

historical meaning is based on fundamental fairness. See id. at

389-90. Singh's case is concerned with the third prohibition:

did the 2011 law change his punishment by "inflict[ing] a

greater punishment, than the law annexed to the crime, when

committed."
¶233 What is clear from the ex post facto case law and the

reason for the clause's inclusion in our Constitution is that a

proper ex post facto analysis focuses on the laws in effect at

the time Singh committed the crimes. As seen from the timeline,

the PAT laws were not in effect when Singh committed his

Waukesha crime in 2008 or when he committed his August 10, 2011

Milwaukee crime. Singh cannot (and does not) argue that his

August 10, 2011 crime falls within his ex post facto challenge
because this crime occurred after 2011 Wis. Act 38 went into

8
 No. 2013AP1724-CR.rgb

effect. The August 10, 2011 crime is referenced because it is

tied to the July 25, 2011 crime via the joint sentencing

hearing.

¶234 Because a proper ex post facto analysis focuses on the

laws in effect at the time Singh committed his crimes, Singh

cannot establish any ex post facto violation relating to his

2008 Waukesha crime. At the time Singh committed the 2008

crime, the PAT opportunity did not exist; therefore, 2011 Wis.

Act 38's repeal of it does not implicate any ex post facto

concerns regarding the 2008 crime.2 The 2011 law does not

increase Singh's sentence attached to the 2008 crime because it

makes no change to the punishment that existed at the time Singh

committed the 2008 crime.3

B

¶235 The only crime in this case that was committed when

the PAT statutes were in effect was Singh's July 25, 2011

Milwaukee crime. Thus, the dispositive issue is whether Singh

2
Although the 2009 law allowed inmates sentenced after
December 31, 1999 to earn PAT days (and Singh was sentenced on
the 2008 crime after December 31, 1999), Singh was never an
inmate during the effective dates of the 2009 law. By the time
Singh became an inmate, the 2011 law was in effect. In
comparing the 2011 law to the laws in effect when Singh
committed his 2008 crime, no ex post facto concerns arise.
3
As noted in the lead opinion at footnote 7, Singh's 2008
Waukesha sentence was amended to one-year jail time. Because
PAT only applied to inmates in prison, this sentencing amendment
further supports my conclusion that PAT does not apply to
Singh's 2008 Waukesha crime. See Singh v. Kemper, 2014 WI App
43, ¶¶26-29, 353 Wis. 2d 520, 846 N.W.2d 820 (PAT only applied
to time in prison, not time spent in jail).

9
 No. 2013AP1724-CR.rgb

proved beyond a reasonable doubt that the enactment of 2011 Wis.

Act 38 violated the ex post facto clause by taking away Singh's

opportunity to earn PAT days on the sentence imposed for the

July 25, 2011 crime. Singh has failed to prove the repeal of

the PAT statutes resulted in an ex post facto violation.

¶236 At the time Singh committed the July 25th Milwaukee

crime, Wis. Stat. § 302.113(2)(b) allowed inmates to earn PAT

days while in prison. 2011 Wis. Act 38 repealed the PAT

statutes, but allowed inmates to keep any PAT days earned from

the date the PAT statutes were enacted until the date the PAT

statutes were repealed. See Wis. Stat. § 973.198(1). Singh

contends 2011 Wis. Act 38 is an unconstitutional ex post facto

law because it eliminated his opportunity to earn PAT days,

thereby increasing the time he was in prison. The lead opinion

holds the 2011 law is an ex post facto law because it makes "the

punishment for an offense more burdensome after it was

committed." Lead op., ¶4.

¶237 In order for Singh to succeed on his claim, he must

prove beyond a reasonable doubt that the 2011 law changed his

punishment, and inflicted a greater punishment than the law

annexed to the crime when committed. See Calder, 3 U.S. at 390.

Although the United States Supreme Court strayed from this

historical meaning of the ex post facto clause over the years,

by expanding it to include any change in punishment that

disadvantaged a defendant, see Kring v. Missouri, 107 U.S. 221

(1883), Lindsey v. Washington, 301 U.S. 397, 401 (1937), Weaver,

10
 No. 2013AP1724-CR.rgb

450 U.S. at 32, and Miller v. Florida, 482 U.S. 423, 433-34

(1987), the Court later rejected the "disadvantaged" test.

¶238 In Collins v. Youngblood, 497 U.S. 37, 50, (1990), the

Supreme Court overruled Kring v. Missouri:

The holding in Kring can only be justified if the Ex
Post Facto Clause is thought to include not merely the
Calder categories, but any change which "alters the
situation of a party to his disadvantage." We think
such a reading of the Clause departs from the meaning
of the Clause as it was understood at the time of the
adoption of the Constitution, and is not supported by
later cases. We accordingly overrule Kring.
Collins, 497 U.S. at 50. Further, in California Department of

Corrections v. Morales, 514 U.S. 499 (1995), the Court said the

"disadvantage the defendant" language used in Lindsey, Weaver,

and Miller "was unnecessary to the results in those cases and is

inconsistent with the [ex post facto] framework developed in

Collins v. Youngblood, 497 U.S. 37, 41 (1990)." Morales, 415

U.S. at 506 n.3. The Court explained:

After Collins, the focus of the ex post facto inquiry
is not on whether a legislative change produces some
ambiguous sort of "disadvantage," nor, as the dissent
seems to suggest, on whether an amendment affects a
prisoner's "opportunity to take advantage of
provisions for early release," . . . but on whether
any such change alters the definition of criminal
conduct or increases the penalty by which a crime is
punishable.
Morales, 415 U.S. at 506 n.3 (emphasis added).

¶239 In that case, Morales was convicted for a murder

committed in 1971 and a second murder in 1980. At the time he

committed the murders, California law required annual
suitability hearings after the initial parole hearing. Id. at

11
 No. 2013AP1724-CR.rgb

503. In 1981, the California legislature authorized the Board

of Prison Terms (Board) to defer subsequent suitability hearings

for up to three years in certain circumstances. Id. In 1989,

Morales was denied parole after his initial parole hearing. Id.

at 502-03. The Board scheduled his next parole hearing for

three years later pursuant to the 1981 law. Id. at 504.

Morales claimed he was entitled to an annual parole hearing

because that was the law when he committed his crimes, and, as a

result, the 1981 law violated the ex post facto clause. Id.

The Court refused to interpret the ex post facto clause in a

manner to require the judiciary to micromanage an "endless array

of legislative adjustments to parole and sentencing procedures,"

that "might create some speculative, attenuated risk of

affecting a prisoner's actual term of confinement by making it

more difficult for him to make a persuasive case for early

release." Id. at 508-09. Instead, the Court examined whether

the new legislation produced "a sufficient risk of increasing

the measure of punishment attached to the covered crimes." Id.

at 509. The Court went on to conclude the legislation at issue

in Morales did not violate the ex post facto clause. Id. at

510-14.

¶240 In Peugh, 133 S. Ct. 2072, the Supreme Court again

analyzed the ex post facto clause. It held that a defendant who

committed crimes in 1999 and 2000, but was not sentenced until

2010, should be sentenced using the sentencing guidelines that

were in effect at the time he committed the crimes, rather than
at the time he was sentenced. Id. at 2078-79, 2081. In Peugh,

12
 No. 2013AP1724-CR.rgb

the Court emphasized that the "basic principles of fairness that

animate the Ex Post Facto Clause" are ensuring that individuals

have fair warning of applicable laws and are not saddled with

vindictive legislative action. Id. at 2084-85. The Court

described the ex post facto inquiry as "whether a given change

in law presents a sufficient risk of increasing the measure of

punishment attached to the covered crimes" and emphasized that

"mere speculation or conjecture that a change in law will

retrospectively increase the punishment for a crime will not

suffice to establish a violation of the Ex Post Facto Clause."

Id. at 2081-82 (two sets of quotation marks and quoted sources

omitted). Because the retrospective increase in the sentencing

guidelines changed Peugh's sentencing range from 30-37 months to

70-87 months, id. at 2078-79, the Court held the new guidelines

constituted an ex post facto violation. Id. at 2084.

¶241 The Supreme Court's latest pronouncement on ex post

facto law focuses on whether the retrospective law causes an

increase in the measure of punishment that was attached to the

crime when it was committed. There is no doubt that 2011 Wis.

Act 38 eliminated the opportunity for inmates then serving

sentences to earn PAT days after August 3, 2011. The 2011 law,

however, like the change in parole policy in Morales, did not

change the sentence Singh received for his July 25, 2011 crime.

Rather, it eliminated the opportunity to earn PAT days, which

13
 No. 2013AP1724-CR.rgb

possibly could have led to converting some confinement days to

extended supervision time.4

¶242 Under the original meaning of the ex post facto

clause, courts should "draw a distinction between the penalty

that a person can anticipate for the commission of a particular

crime, and opportunities for mercy or clemency that may go to

the reduction of the penalty." Garner, 529 U.S. at 258 (Scalia,

J., concurring).

¶243 The PAT statutes at issue here were very different

from the mandatory parole cases where courts held the new law

produced ex post facto violations. For example, in Weaver, the

ex post facto law involved reducing mandatory gain time credits.

4
In Lynce v. Mathis, 519 U.S. 433 (1997), the Supreme Court
declared unconstitutional a Florida law that cancelled already
earned provisional early release credits. Lynce had been
released from prison because he completed his sentence based on
time served plus provisional early release credits. Id. at 435-
36. Lynce was rearrested and reincarcerated as a result of the
new law cancelling the provisional early release credits. Id.
at 436. The Court held the Florida statute violated the ex post
facto clause because Lynce had already earned and used the early
release credits——the law did not merely remove "an opportunity
for early release." Id. at 447. The new law put Lynce, who had
been released because he completed his sentence, back in prison.
Id. As Justice Clarence Thomas, joined by Justice Antonin
Scalia explained in a concurring opinion: "The present case
[Lynce] involves not merely an effect on the availability of
future release credits, but the retroactive elimination of
credits already earned and used." Id. at 451. The facts in
Singh's case are quite different than Lynce. The 2011 law did
not take away PAT days Singh had already earned and used, and
the 2011 law did not lengthen the overall sentence imposed. The
2011 law Singh challenges removed an opportunity to possibly
convert confinement days to supervision days. It affected the
availability of future PAT days, but did not eliminate credits
already earned or used.

14
 No. 2013AP1724-CR.rgb

The gain-time credits were automatic under both the old and new

legislation. Id., 450 U.S. at 36. Under the old law, an inmate

was automatically entitled to receive 5, 10 or 15 days off the

sentence according to the good conduct formula whereas the new

law substantially reduced the gain-time formula to 3, 6 or 9

days off the sentence. Id. at 26, 36. In Mueller, the new law

changed parole eligibility from two years to five years. Id.,

64 Wis. 2d at 645. Under the old law, inmates were "as a matter

of right" considered for parole after serving two years in

prison. Id. at 647. The new law changed that "right" to five

years. Id. at 645. These facts distinguish between an

automatic right, which was known to be a part of the sentence,

and the situation presented here where an inmate had an

opportunity to possibly earn PAT early release, which does not

change the overall length of the sentence imposed.5 Neither

Weaver nor Mueller involved the opportunity to possibly have PAT

days shorten confinement days but lengthen supervision time. It

5
Mueller v. Powers applies the ex post facto doctrine both
relative to the date of commission of the crime and laws that
change after conviction and sentencing. 64 Wis. 2d 643, 646,
221 N.W.2d 692 (1974). This does not change my conclusion that
the critical time is what law is in effect on the date of
commission of the crime. New legislation will often come after
conviction and sentencing as these events naturally occur after
the commission of the crime. See also State ex rel. Eder v.
Matthews, 115 Wis. 2d 129, 132-133, 340 N.W.2d 66 (Ct. App.
1983)(citing Mueller for the "convicted and sentenced" language
in a case where the issue was "when a mandatory release parole
violator is returned to prison to serve forfeited good time
credit, can the Department order that the forfeited time be
treated as a 'new sentence' for the purpose of calculating good
time.")(footnote omitted).

15
 No. 2013AP1724-CR.rgb

is also significant that both Weaver and Mueller relied on the

"disadvantage to a defendant" language to conclude that the laws

in those cases violated the ex post facto clause. As noted,

that language has been withdrawn, and is not the proper test to

use in this ex post facto analysis. See Collins, 497 U.S. at

50; State v. Thiel, 188 Wis. 2d 695, 702-03, 524 N.W.2d 641

(1994)(withdrawing Mueller's language that ex post facto test

reviews whether new law "disadvantages" a defendant).

¶244 It is also worth noting that the punishment for

Singh's crime——a class H felony——has not changed. It was six

years with up to a maximum of three years' confinement plus up

to a $10,000 fine in 2008, 2009, 2010 and 2011. 2011 Wis. Act

38 did not change the punishment annexed to the crime Singh

committed at the time he committed it. See State ex rel. Britt

v. Gamble, 2002 WI App 238, ¶24, 257 Wis. 2d 689, 653 N.W.2d 143

(holding that subsequently repealing the law in existence at the

time the crime was committed that gave defendant the opportunity

to ask for early release was not ex post facto because the

sentence imposed was not extended). The 2011 law did not change

the punishment "attached" to the crime Singh committed on July

25, 2011. It removed Singh's hope or opportunity to earn

conversion of confinement days into extended supervision days,

but it did not increase the sentence attached to the crime he

committed.

¶245 It is further significant that the 2011 legislation

does not offend a faithful application of the ex post facto
clause's historical meaning. The 2011 law did not inflict a

16
 No. 2013AP1724-CR.rgb

greater punishment than what already existed for Singh's crime

when he committed it. The 2009 PAT statutes gave inmates an

opportunity to earn PAT days with the possibility of converting

confinement days into extended supervision days. The 2009 PAT

statutes were not mandatory and release under the statutes was

not guaranteed. The 2009 PAT statutes did not change the

overall length of the sentence imposed and there is nothing to

suggest the legislature repealed the PAT statutes to be

oppressive or vindictive. To the contrary, Wis. Stat.

§ 973.198(1) included language to ensure inmates could keep the

PAT time already earned, which demonstrates fairness and mercy.

¶246 Furthermore, Singh cannot benefit from PAT even though

it existed at the time he committed his July 25, 2011 crime

because he was not an inmate when the opportunity to earn PAT

days existed. Singh's claim that the 2011 legislation increased

the measure of his punishment is speculative. Even if Singh had

been an inmate and able to earn PAT days, there is no evidence

that his request for early PAT release would have been granted.

Thus, his claim is pure speculation, which cannot support an ex

post facto violation.

¶247 Accordingly, I conclude Singh failed to establish any

ex post facto violation. I would reverse that part of the court

of appeals' opinion holding that the 2011 legislation violated

the ex post facto clause.

C

¶248 Singh also argues Wis. Stat. § 973.198 violates the ex
post facto clause because it delays the time, up to 90 days, to

17
 No. 2013AP1724-CR.rgb

release inmates who have successfully petitioned for early

release and because it changes the standard associated with

making PAT-based early release decisions. Section 973.198 does

change the procedure with respect to PAT petitions. Under the

2009 law, inmates petitioned the "earned release review

commission" and the commission notified the sentencing court,

which then decided whether to grant or deny the inmate's

request. Under the 2011 law, the commission's participation in

the process is eliminated and the inmate petitions the

sentencing court directly. In addition, Singh argues the 2011

law altered the timing of the PAT petitions: in 2009, the

process started before the eligibility date and in 2011, the

process starts on the eligibility date.

¶249 The court of appeals held that the changes in Wis.

Stat. § 973.198 are procedural and therefore do not implicate ex

post facto. I agree with the court of appeals on this issue for

the reasons it explained in its opinion:

A procedural change in the law is one that
"simply alter[s] the methods employed in determining"
whether the punishment is to be imposed rather than
"chang[ing] . . . the quantum of punishment attached
to the crime." And while a procedural change, in some
cases, may have a substantive impact that violates the
ex post facto clauses, "speculative and attenuated
possibilit[ies]" of increasing a prisoner's actual
term of confinement do not violate the clauses.
Because a significant risk of prolonged confinement is
not inherent in the framework of the Wis. Stat.
§ 974.198 procedural change, such risk must be
demonstrated on the record or an ex post facto
violation will not be found. Singh has not met his
burden of proving this change in the method for
securing early release based upon PAT violates the ex
post facto clauses.
18
 No. 2013AP1724-CR.rgb

Singh v. Kemper, 2014 WI App 43, ¶22, 353 Wis. 2d 520, 846

N.W.2d 820 (citations omitted). Although the parties disagree

as to whether the language of the statutes under the 2009 law

and the 2011 law differ with respect to when the request to

start the potential early release process starts, this

disagreement need not be resolved. The change in the law

removing the commission as the intermediary and altering the

timing of petitions are both procedural changes, which do not

implicate ex post facto concerns. See Dobbert v. Florida, 432

U.S. 282, 293-94 (1977)("Even though it may work to the

disadvantage of a defendant, a procedural change is not ex post

facto."). I would affirm that part of the court of appeals

opinion holding § 973.198 did not violate the ex post facto

clause because the new statute addresses procedure rather than

"the quantum of punishment attached to the crime." See id. at

294.

¶250 For these reasons, I respectfully dissent.

¶251 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK joins part C of this opinion.

19
 No. 2013AP1724-CR.rgb

1