                                                                  2014 WI 64

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2011AP2868-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Clayton W. Williams,
                                  Defendant-Appellant.



                          REVIEW OF A DECISION OF    THE COURT OF APPEALS
                                 350 Wis. 2d 311,    833 N.W.2d 846
                                   (Ct. App. 2013    – Published)
                                      PDC No: 2013   WI App 74

OPINION FILED:          July 15, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 5, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Monroe
   JUDGE:               J. David Rice.

JUSTICES:
   CONCURRED:           ABRAHAMSON, C.J., BRADLEY, J., concur. (Opinion
                        filed.)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    petitioner-respondent-petitioner,    the   cause   was
argued by Maura FJ Whelan, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.


       For the defendant-appellant, there was a brief by Steven D.
Grunder, assistant state public defender, and oral argument by
Steven D. Grunder.
                                                                    2014 WI 64
                                                              NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.   2011AP2868-CR
(L.C. No.   2010CF278)

STATE OF WISCONSIN                        :              IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent-Petitioner,
                                                                 FILED
      v.
                                                              JUL 15, 2014
Clayton W. Williams,
                                                               Diane M. Fremgen
            Defendant-Appellant.                            Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.             Reversed.



      ¶1    DAVID    T.   PROSSER,   J.   This      is    a    review      of    a
published decision of the court of appeals, reversing a decision

of the Monroe County Circuit Court, J. David Rice, Judge.

      ¶2    The case requires the court to interpret Wis. Stat.

§ 346.65(2)(am)6. (2009-10)1——the penalty statute for operating a

motor vehicle while intoxicated (OWI) as the seventh, eighth, or

ninth offense.      The meaning of one key sentence in the statute


      1
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
                                                                   No.          2011AP2868-CR



is in dispute, namely: "The confinement portion of a bifurcated

sentence imposed on the person under s. 973.01 shall be not less

than 3 years."           Wis. Stat. § 346.65(2)(am)6.

      ¶3     The parties agree that if a court orders a bifurcated

sentence2        under    § 346.65(2)(am)6.,         the     court       must     impose    a

mandatory minimum period of initial confinement of three years.

Thus,      the    question      before     us   is    whether        § 346.65(2)(am)6.

requires a sentencing court to impose a bifurcated sentence.

      ¶4     The underlying OWI incident occurred in September 2010

in Monroe County in western Wisconsin.                     Responding to a tip that

Clayton W. Williams (Williams) was driving while intoxicated, a

Monroe      County        deputy     sheriff     observed          Williams         driving

erratically and pulled him over.                     Williams was charged with

several offenses, but he pled guilty to his seventh OWI offense

and   to    possessing       open    intoxicants      in    a    motor    vehicle.         At

sentencing, Williams asked the circuit court to place him on

probation.                The      court    responded            that      Wis.       Stat.

§ 346.65(2)(am)6. required imposition of a bifurcated sentence
with at least three years of initial confinement, and this was

the confinement the court imposed.

      ¶5     The     court      of    appeals        reversed,       concluding         that

§ 346.65(2)(am)6.           does     not   require      a       court     to     impose    a

      2
       "A bifurcated sentence is a sentence that consists of a
term of confinement in prison followed by a term of extended
supervision under s. 302.113." Wis. Stat. § 973.01(2). When a
court orders a bifurcated sentence, "The portion of the
bifurcated sentence that imposes a term of confinement in prison
may not be less than one year . . . ." Id., § 973.01(2)(b).

                                            2
                                                                      No.      2011AP2868-CR



bifurcated      sentence       for     a     seventh       offense    OWI.       State    v.

Williams,      2013     WI     App     74,    ¶¶1,     12,     350    Wis. 2d 311,       833

N.W.2d 846.          Consequently, the court of appeals remanded the

case for resentencing.             Id., ¶16.

       ¶6     We conclude that Wis. Stat. § 346.65(2)(am)6. requires

sentencing courts to impose a bifurcated sentence with at least

three years of initial confinement for a seventh, eighth, or

ninth OWI offense.             In reaching this conclusion, we note that

although       the     statutory           history,        context,     structure,       and

contextually manifest purposes of § 346.65(2)(am)6. suggest that

it imposes a mandatory minimum period of initial confinement,

the statute is ambiguous.                  Well-informed people may reasonably

disagree as to whether § 346.65(2)(am)6. requires a court to

impose a bifurcated sentence or whether probation is permitted

and a bifurcated sentence is merely an option.                          The legislative

history      resolves        the     ambiguity       and     contains       several   clear

statements that § 346.65(2)(am)6. requires courts to impose a

bifurcated sentence with a mandatory minimum period of initial
confinement.         Therefore, we reverse the court of appeals.

               I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       ¶7     According to the criminal complaint, on September 10,

2010, in early evening, Deputy Jesse Murphy (Deputy Murphy) of

the Monroe County Sheriff's Department responded to a traffic

tip.        Michelle Deford (Deford) had called dispatch to report

that Williams had been drinking in her yard and that he was
driving while intoxicated.                 After responding to the call, Deputy


                                               3
                                                                   No.        2011AP2868-CR



Murphy saw Williams' truck accelerate rapidly and twice swerve

left of the center line.            He also noticed that one of Williams'

brake lights was out as Williams slowed to make a right turn

onto a dirt road.        Deputy Murphy activated his emergency lights

and siren and observed Williams fishtail, possibly due to rapid

acceleration on the dirt road.

       ¶8   Williams pulled over and struggled to keep his balance

after getting out of his truck.                   When asked if he knew why he

had been stopped, Williams said, "no sir."                         Williams admitted

that   he   had    consumed      four   or       five   beers,    and    Deputy      Murphy

observed    that    Williams'      speech        was    slurred    and       that    he   was

leaning on the truck to keep his balance.                         Williams agreed to

attempt     field    sobriety      tests,         which    he     did    not        complete

successfully.       A preliminary breath test revealed a sufficient

alcohol concentration to warrant an additional test, and the

subsequent blood draw indicated a blood alcohol concentration of

.248 g/100 mL.

       ¶9   On September 13, 2010, the State filed a complaint

charging Williams with his seventh OWI offense contrary to Wis.

Stat. § 346.63(1)(a) (Count 1), operating a motor vehicle after

revocation    contrary      to    Wis.   Stat.          § 343.44(1)(b)        (Count      2),

possessing open intoxicants in a motor vehicle contrary to Wis.

Stat. § 346.935(2) (Count 3), operating left of the center line

contrary to Wis. Stat. § 346.05(1) (Count 4), non-registration

of a vehicle contrary to Wis. Stat. § 341.04(1) (Count 5), and
improper    display    of     license        plates      contrary       to    Wis.    Stat.


                                             4
                                                                        No.        2011AP2868-CR



§ 341.15(3) (Count 6).                On September 28, 2010, the State filed

an    amended   complaint        to    add     a    charge      for    operating        a   motor

vehicle with a prohibited alcohol concentration contrary to Wis.

Stat.      § 346.63(1)(b)        (Count       7)    and    to    include         alcohol      fine

sentence enhancers for Counts 1 and 7.3                               The State filed an

information on October 6, 2010, which contained the same seven

counts as the amended complaint.

       ¶10    On April 7, 2011, Williams pled guilty to Counts 1 and

3.    The plea agreement stated that the district attorney would

request a bifurcated sentence of six years with three years of

initial confinement and three years of extended supervision, but

Williams     was     free   to    argue       for    different         sentencing.4            The

circuit      court    accepted        the     guilty      pleas       and     found     Williams

guilty of Counts 1 and 3.               The court dismissed all other counts,

but    the   parties    agreed         that    Count      2     could       be   read    in   for

sentencing.

       ¶11    At the sentencing hearing on May 17, 2011, the State

contended that Wis. Stat. § 346.65(2)(am)6. requires the court


       3
       Wisconsin Stat. § 346.65(2)(g)2. reads, "If a person
convicted had an alcohol concentration of 0.20 to 0.249, the
applicable minimum and maximum fines under par. (am)3. to 5. are
tripled."
       4
       The plea agreement said, "I understand that the judge must
impose the mandatory minimum penalty if any.       The mandatory
minimum penalty I face upon conviction is: 24 month [driver's
license] revocation."   However, at the plea hearing, the court
asked Williams, "[I] believe that statute requires me to order a
minimum term of confinement in the state prison for three years;
do you understand that?" Williams responded, "Yes, sir."

                                               5
                                                               No.        2011AP2868-CR



to impose a bifurcated sentence with at least three years of

initial confinement for Count 1.                 Williams argued that a plain

reading of the statute does not require that the court impose a

bifurcated    sentence,      and   he    requested      that   the    court    either

withhold sentence and place him on probation or stay any imposed

prison sentence.         To support his request for probation, Williams

suggested that his situation was unique inasmuch as his last OWI

conviction was in 1998——roughly 12 years prior to his seventh

OWI.      The State acknowledged the gap in OWI convictions but

pointed out that Williams had other criminal convictions during

those 12 years.

       ¶12   Ultimately, the circuit court agreed with the State

that   the   statute     requires    the       court   to   impose    a   bifurcated

sentence     with   at    least    three       years   of   initial   confinement.

However, the court recognized Williams' unusual situation when

it said, "I think that there probably aren't very many members

of the general public who would hear about a seventh offense OWI

case and think that [it] was appropriate for probation.                       I think
if there ever was one, you might be the person, Mr. Williams."

The court went on to discuss Wis. Stat. § 346.65(2)(am)6. and

noted, "The language does not say that the court must impose a

bifurcated     sentence,     but    it     says    that . . . the         confinement

portion of a bifurcated sentence shall be not less than three

years."      The court determined that the statute is ambiguous

because "there is a shall in there for the confinement portion,

but there's no shall that says I have to impose a bifurcated


                                           6
                                                                No.    2011AP2868-CR



sentence,    to    me    that   makes      the   statute       ambiguous . . . ."5

(Emphasis added.)

      ¶13   Turning      to     the    legislative        history,     the     court

determined that a memo from the Wisconsin Legislative Council on

the   senate      bill   that    created       Wis.    Stat.    § 346.65(2)(am)6.

evinced the legislature's intent to require courts to impose a

bifurcated     sentence       with    at   least      three    years   of    initial

confinement.       Based on its interpretation of the statute, the

court imposed a bifurcated sentence of three years of initial

confinement and three years of extended supervision for Count 1.

Although the court agreed with the State's interpretation, it

did explain:

      [I]t's hard for me to say what I would otherwise have
      done if I hadn't thought that the law required me to
      do this. As I've said, you're as good a candidate for
      probation probably as I would see; at the same time it
      is your seventh offense and I can't just ignore that,
      either.



      5
       The assistant district attorney also mentioned the
statute's lack of clarity when he said, "I think it was [the
legislature's] intention that minimum prison was necessary and I
think that the statute is poorly written in that regard and it
is my hope that it is modified to be more clear."     During the
writing of this opinion, Governor Walker signed 2013 A.B. 180,
which amends Wis. Stat. § 346.65(2)(am)6.     See 2013 Wis. Act
224, § 4.     The new law reads, "The court shall impose a
bifurcated sentence under s. 973.01 and the confinement portion
of the bifurcated sentence imposed on the person shall be not
less than 3 years."     Id.  Thus, the current version of Wis.
Stat. § 346.65(2)(am)6. unequivocally requires courts to impose
a bifurcated sentence with a minimum period of initial
confinement.   2013 Wis. Act 224 took effect on April 10, 2014.
Id.

                                           7
                                                                    No.        2011AP2868-CR


           But given all the circumstances, I think that the
      legislature has made the decision that that is the
      minimum term of confinement, I think that is an
      appropriate term of confinement for you.
      ¶14    Judgments of conviction were filed on May 18, 2011.

On appeal, Williams argued that the circuit court was mistaken

in    believing     that     Wis.     Stat.       § 346.65(2)(am)6.             imposes     a

mandatory minimum period of initial confinement.                           Williams, 350

Wis. 2d 311, ¶1.       The court of appeals agreed and reversed the

circuit court.      Id.     In contrast to the circuit court, the court

of appeals concluded that Wis. Stat. § 346.65(2)(am)6. is plain

and   unambiguous     and    does     not        require    a   court      to    impose     a

bifurcated    sentence.         Id.,        ¶¶12-14.        Therefore,          the     court

reversed     the    circuit         court        and   remanded       the        case     for

resentencing.       Id., ¶16.        The dissent, however, determined that

§ 346.65(2)(am)6. is ambiguous and that the legislative history

demonstrates that the statute requires the sentencing court to

impose   a   bifurcated      sentence        with      at   least     three      years     of

initial confinement.         Id., ¶19 (Blanchard, J., dissenting).

      ¶15    The State petitioned this court for review, which we

granted on November 21, 2013.

                            II. STANDARD OF REVIEW

      ¶16    This   case    requires        an    interpretation          of    Wis.    Stat.

§ 346.65(2)(am)6.          Statutory interpretation presents a question

of law that we review de novo, although we benefit from the

analyses of the circuit court and the court of appeals.                                 State

v. Henley, 2010 WI 97, ¶29, 328 Wis. 2d 544, 787 N.W.2d 350;




                                             8
                                                                   No.         2011AP2868-CR



State    v.     Quintana,       2008    WI   33,    ¶11,    308     Wis. 2d 615,         748

N.W.2d 447.

                                     III. DISCUSSION

      ¶17     The analytical framework for statutory interpretation

is well-established.            First, we look to the statute's language,

and if the meaning is plain, the inquiry typically ends there.

State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,

¶45, 271 Wis. 2d 633, 681 N.W.2d 110.                       "Statutory language is

given its common, ordinary, and accepted meaning, except that

technical or specially-defined words or phrases are given their

technical       or    special    definitional       meaning."            Id.    (citations

omitted).        In determining a statute's plain meaning, the scope,

context, structure, and purpose are important.                           See id., ¶¶45-

46, 49.       "A statute's purpose . . . may be readily apparent from

its     plain    language       or     its   relationship      to    surrounding          or

closely-related         statutes——that        is,    from    its     context       or    the

structure of the statute as a coherent whole."                       Id., ¶49.          As a

result,     "a       plain-meaning      interpretation       cannot       contravene       a
textually       or    contextually       manifest    statutory       purpose."           Id.

(footnote omitted).             Thus, this court considers "surrounding or

closely-related statutes" to reach a sound interpretation and

"to avoid absurd or unreasonable results."                     Id., ¶46 (citations




                                             9
                                                      No.      2011AP2868-CR



omitted).     A reviewing court may consider the statutory history6

as part of the context analysis.        Richards v. Badger Mut. Ins.

Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581.

      ¶18   Although   reviewing   courts    must     begin     with     the

statutory language, they sometimes consider it appropriate to

turn to extrinsic sources.      For example, even if the statute is

plain, the court may consider legislative history to confirm the

plain-meaning interpretation.       Teschendorf v. State Farm Ins.

Cos., 2006 WI 89, ¶14, 293 Wis. 2d 123, 717 N.W.2d 258.                 There

also may be times when statutory interpretation leads a court to

conclude that the statute's meaning is plain but that plain

meaning would produce an absurd result.       On those few occasions,

the   court   may   consult   legislative   history    to     resolve    the
absurdity.    Id., ¶15.

      ¶19   Finally, and most important, if the interpreting court

concludes that the statute is ambiguous, the court may consider

extrinsic sources such as legislative history to discern the
meaning of the statute.        Kalal, 271 Wis. 2d 633, ¶51.             "[A]

statute is ambiguous if it is capable of being understood by

reasonably well-informed persons in two or more senses."                 Id.,

¶47 (citations omitted).      In other words, ambiguity exists when


      6
       "Statutory history encompasses the previously enacted and
repealed provisions of a statute. By analyzing the changes the
legislature has made over the course of several years, we may be
assisted in arriving at the meaning of a statute." Richards v.
Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749
N.W.2d 581 (citation omitted).

                                   10
                                                                No.        2011AP2868-CR



"well-informed     persons    should      have    become    confused,        that    is,

whether the statutory . . . language               reasonably         gives rise to

different meanings."         Id. (ellipsis in original) (quoting Bruno

v.   Milwaukee    Cnty.,    2003     WI   28,     ¶21,    260   Wis. 2d 633,         660

N.W.2d 656) (internal quotation marks omitted).

      ¶20    As we conduct our analysis, we must keep in mind that

"the purpose of statutory interpretation is to determine what

the statute means so that it may be given its full, proper, and

intended     effect."      Id.,    ¶44.        Having    laid   out    the    familiar

tenets of statutory interpretation, we turn now to apply them to

Wis. Stat. § 346.65(2)(am)6.

                      A. The Language of the Statute

      ¶21    The language in Wis. Stat. § 346.65(2)(am)6. at issue

reads   as    follows:    "The    confinement       portion     of     a   bifurcated

sentence imposed on the person under s. 973.01 shall be not less

than 3 years."        Wis. Stat. § 346.65(2)(am)6.                Looking at this

language in isolation, it is not clear whether it requires a

court to impose a bifurcated sentence or whether it merely gives
the court that option.            A statute that clearly gave the court

the option to impose a bifurcated sentence might say, "If the

court   imposes   a     bifurcated    sentence      on    the    person      under   s.

973.01, the confinement portion shall be not less than three

years."      Conversely, a statute that clearly imposed a mandatory

minimum sentence might say, "The court shall impose a bifurcated

sentence under s. 973.01, and the term of initial confinement

shall be not less than three years."                    Because the language of
the statute is somewhere between these clear alternatives, the
                                          11
                                                                       No.      2011AP2868-CR



language itself does not reveal a plain meaning.                               We consider

the    statutory         history,        context,    structure,        and     contextually

manifest purposes in an attempt to discern the statute's plain

meaning.

                                   B. Statutory History

       ¶22     Wisconsin Stat. ch. 346 was created by § 1, ch. 260,

Laws of 1957.            The first version of Wis. Stat. § 346.65(2) read:

            (2) Any person violating s. 346.63(1) may be
       fined not more than $200 or imprisoned not more than 6
       months or both for the first offense and, upon the
       second or subsequent conviction within 5 years, shall
       be imprisoned not less than 5 days nor more than one
       year and in addition may be fined not more than $200.
Wis.       Stat.    § 346.65(2)      (1957).         The    initial      version    of    the

statute       denoted       only     two    classes        of   OWIs     for    sentencing

purposes:          the   first     OWI    and   then   all      subsequent       OWIs    that

occurred within a five-year period.                    Notably, for the second and

subsequent OWI offenses within five years, the statute imposed

mandatory minimum sentences.

       ¶23     After undergoing a number of revisions and amendments,7

the statute was repealed and replaced by § 15, ch. 193, Laws of

1977, so that it read:

               (2)(a) Any person violating s. 346.63(1):

            l.   Shall forfeit not less than $100 nor more
       than $500, except as provided in subd. 2 or 3.

            2.   Shall be fined not less than $250 nor more
       than $1,000 and imprisoned not less than 5 days nor

       7
           First-offense OWI was decriminalized by ch. 278, Laws of
1971.

                                                12
                                                                 No.        2011AP2868-CR


      more than 6 months if the total of revocations under
      s. 343.305 and convictions for violation of s.
      346.63(1) or local ordinances in conformity therewith
      equals   2  within   a   5-year  period,  except  that
      revocations and convictions arising out of the same
      incident or occurrence shall be counted as one.    The
      5-year period shall be measured from the dates of the
      refusals   or   violations   which  resulted   in  the
      revocations or convictions.

           3.   Shall be fined not less than $500 nor more
      than $2,000 and imprisoned for not less than 30 days
      nor more than one year in the county jail if the total
      of revocations under s. 343.305 and convictions for
      violation of s. 346.63(1) or local ordinances in
      conformity therewith equals 3 or more within a 5-year
      period,   except  that   revocations  and   convictions
      arising out of the same incident or occurrence shall
      be counted as one.       The 5-year period shall be
      measured from the dates of the refusals or violations
      which resulted in the revocations or convictions.
Wis. Stat. § 346.65(2)(a) (1977) (emphasis added).

      ¶24   The   1977    version      of    the    statute    (1)     increased       the

potential    forfeiture     for        first-offense      OWI;        (2)    imposed     a

mandatory   minimum      fine   and     maintained      mandatory       minimum      jail

time of five days for a second-offense OWI; and (3) increased

the   mandatory   minimum       fine    and      potential     fine    and    increased

mandatory    minimum     jail     time      to     30   days    for     a    third     and

subsequent OWI offenses.         § 15, ch. 193, Laws of 1977.

      ¶25   The legislature added new paragraphs to the statute in

1989 Wis. Act 271, after which § 346.65(2) read:

            (2)   Any person violating s. 346.63(1):

           (a) Shall forfeit not less than $150 nor more
      than $300, except as provided in pars. (b) to (e).

           (b) Shall be fined not less than $300 nor more
      than $1,000 and imprisoned for not less than 5 days
      nor more than 6 months if the total of revocations

                                            13
                                                       No.      2011AP2868-CR


      under s. 343.305(10)(b) and convictions under s.
      346.63(1)   or  a   local   ordinance   in  conformity
      therewith, or s. 346.63(1m), 1985 stats., or s.
      346.63(2) or 940.25, or s. 940.09 where the offense
      involved the use of a vehicle, equals 2 in a 5-year
      period, except revocations or convictions arising out
      of the same incident or occurrence shall be counted as
      one.

           (c) Shall be fined not less than $600 nor more
      than $2,000 and imprisoned for not less than 30 days
      nor more than one year in the county jail if the total
      of revocations under s. 343.305(10)(b) and convictions
      under s. 346.63(1) or a local ordinance in conformity
      therewith, or s. 346.63(1m), 1985 stats., or s.
      346.63(2) or 940.25, or s. 940.09 where the offense
      involved the use of a vehicle, equals 3 in a 5-year
      period, except that revocations or convictions arising
      out of the same incident or occurrence shall be
      counted as one.

           (d) Shall be fined not less than $600 nor more
      than $2,000 and imprisoned for not less than 60 days
      nor more than one year in the county jail if the total
      of revocations under s. 343.305(10)(b) and convictions
      under s. 346.63(1) or a local ordinance in conformity
      therewith, or s. 346.63(1m), 1985 stats., or s.
      346.63(2) or 940.25, or s. 940.09 where the offense
      involved the use of a vehicle, equals 4 in a 5-year
      period, except that revocations or convictions arising
      out of the same incident or occurrence shall be
      counted as one.

           (e) Shall be fined not less than $600 nor more
      than $2,000 and imprisoned for not less than 6 months
      nor more than one year in the county jail if the total
      of revocations under s. 343.305(10)(b) and convictions
      under s. 346.63(1) or a local ordinance in conformity
      therewith, or s. 346.63(1m), 1985 stats., or s.
      346.63(2) or 940.25, or s. 940.09 where the offense
      involved the use of a vehicle, equals 5 or more in a
      5-year period, except that revocations or convictions
      arising out of the same incident or occurrence shall
      be counted as one.
Wis. Stat. § 346.65(2)(a)-(e) (1989-90) (emphasis added).                The
new   paragraphs   continued   the    trend   toward   higher     mandatory

                                     14
                                                          No.     2011AP2868-CR



minimums and more stringent penalties as the number of OWIs

increased.       Consistent    with   previous   iterations,     the   1989-90

version of the statute imposed mandatory minimum sentences for

the second and all subsequent OWI offenses.

     ¶26   The      legislature        later      added         Wis.    Stat.

§ 346.65(2)(am)6.-7.8 in 2007 Wis. Act 111:

          Section 3.          346.65(2)(am)6. of the statutes is
     created to read:

          346.65(2)(am)6.   Except as provided in par. (f),
     [any person violating s. 346.63(1)] is guilty of a
     Class G felony if the number of convictions under ss.
     940.09(1) and 940.25 in the person's lifetime, plus
     the total number of suspensions, revocations, and
     other convictions counted under s. 343.307(1), equals
     7, 8, or 9, except that suspensions, revocations, or
     convictions arising out of the same incident or
     occurrence shall be counted as one.

          Section 4.          346.65(2)(am)7. of the statutes is
     created to read:

          346.65(2)(am)7. Except as provided in par. (f),
     [any person violating s. 346.63(1)] is guilty of a
     Class F felony if the number of convictions under ss.
     940.09(1) and 940.25 in the person's lifetime, plus
     the total number of suspensions, revocations, and
     other convictions counted under s. 343.307(1), equals
     10 or more except that suspensions, revocations, or
     convictions arising out of the same incident or
     occurrence shall be counted as one.
2007 Wis. Act 111, §§ 3-4.        In their initial form, subds. 6. and

7. were anomalous in that they were the first subdivisions since




     8
       Wisconsin Stat. § 346.65(2)(a)-(e) was renumbered in 2005
Wis. Act 149 as Wis. Stat. § 346.65(2)(am)1.-5., but most of the
language did not change.

                                      15
                                                               No.       2011AP2868-CR



the statute's creation that did not require mandatory minimum

sentences for multiple OWI offenses.

       ¶27   Then, 2009 Wis. Act 100 (Act 100) added the language

that is particularly relevant to the present case.                           Act 100

added a sentence to Wis. Stat. § 346.65(2)(am)6. that said, "The

confinement    portion    of     a    bifurcated      sentence     imposed    on    the

person under s. 973.01 shall be not less than 3 years."                            2009

Wis. Act 100, § 43.       Similarly, § 346.65(2)(am)7. was amended to

read, "The confinement portion of a bifurcated sentence imposed

on the person under s. 973.01 shall be not less than 4 years."

Id.,   § 44.     Thus,    with        Act    100,    the    legislature      arguably

resolved the anomalous lack of mandatory minimum sentences in

subds. 6. and 7. by adding mandatory minimum language.

       ¶28   The use of the term "bifurcated sentence" introduced

by Act 100 also is significant when read in context with lower

OWI offenses.     Since 1990, the language in § 346.65(2)(am)1.-5.—

—"shall be fined . . . and imprisoned"——has remained the same.

In contrast, the sentencing language in § 346.65(2)(am)6. did
not take effect until 2010.                 2009 Wis. Act 100, §§ 43-44, 97.

The timing is important because Wisconsin enacted its "truth in

sentencing"    law   in   1997       Wis.    Act    283,   which   has   since     been

modified.      Legis.     Reference         Bureau,    Truth-in-Sentencing          and

Criminal Code Revision, LRB-02-WB-7, at 1 (Aug. 2002).                              The

truth in sentencing law eliminates parole and requires that when

a court orders a person to serve a bifurcated sentence, the

person must serve the entire term unless the person qualifies
for a sentence adjustment or successfully completes an earned
                                            16
                                                No.     2011AP2868-CR



release program.9   When the substance of subds. 1., 2., 3., 4.,

and 5. was created, the current bifurcated sentencing structure

for sentences of more than one year did not exist.        Thus, the

difference in language between the lower OWI offenses and the

language in subds. 6. and 7. can be explained by the fact that

subds. 6. and 7. were created at a later time and contemplated

more serious penalties involving mandatory prison time.

     ¶29   After numerous amendments, Wis. Stat. § 346.65(2)(am),

as it applied to Williams, read:

           (2)(am) Any person violating s. 346.63(1):

          1.   Shall forfeit not less than $150 nor more
     than $300, except as provided in subds. 2. to 5. and
     par. (f).

          2.   Except as provided in pars. (bm) and (f),
     shall be fined not less than $350 nor more than $1,100
     and imprisoned for not less than 5 days nor more than
     6 months if the number of convictions under ss.
     940.09(1) and 940.25 in the person’s lifetime, plus
     the total number of suspensions, revocations, and
     other convictions counted under s. 343.307(1) within a
     10−year period, equals 2, except that suspensions,
     revocations, or convictions arising out of the same
     incident or occurrence shall be counted as one.

          3.   Except as provided in pars. (cm), (f), and
     (g), shall be fined not less than $600 nor more than
     $2,000 and imprisoned for not less than 45 days nor
     more than one year in the county jail if the number of
     convictions under ss. 940.09(1) and 940.25 in the
     person’s   lifetime,   plus  the   total   number   of
     suspensions,   revocations,  and   other   convictions
     counted under s. 343.307(1), equals 3, except that

     9
       See Jesse J. Norris, The Earned Release Revolution: Early
Assessments and State-Level Strategies, 95 Marq. L. Rev. 1551,
1564-77 (2012) (discussing recent developments in Wisconsin's
sentencing laws).

                                17
                                         No.    2011AP2868-CR


suspensions, revocations, or convictions arising out
of the same incident or occurrence shall be counted as
one.

     4.   Except as provided in subd. 4m. and pars.
(dm), (f), and (g), shall be fined not less than $600
nor more than $2,000 and imprisoned for not less than
60 days nor more than one year in the county jail if
the number of convictions under ss. 940.09(1) and
940.25 in the person's lifetime, plus the total number
of suspensions, revocations, and other convictions
counted under s. 343.307(1), equals 4, except that
suspensions, revocations, or convictions arising out
of the same incident or occurrence shall be counted as
one.

     4m. Except as provided in pars. (f) and (g), is
guilty of a Class H felony and shall be fined not less
than $600 and imprisoned for not less than 6 months if
the number of convictions under ss. 940.09(1) and
940.25 in the person's lifetime, plus the total number
of suspensions, revocations, and other convictions
counted under s. 343.307(1), equals 4 and the person
committed an offense that resulted in a suspension,
revocation, or other conviction counted under s.
343.307(1) within 5 years prior to the day of current
offense, except that suspensions, revocations, or
convictions arising out of the same incident or
occurrence shall be counted as one.

     5.   Except as provided in pars. (f) and (g), is
guilty of a Class H felony and shall be fined not less
than $600 and imprisoned for not less than 6 months if
the number of convictions under ss. 940.09(1) and
940.25 in the person’s lifetime, plus the total number
of suspensions, revocations and other convictions
counted under s. 343.307(1), equals 5 or 6, except
that suspensions, revocations or convictions arising
out of the same incident or occurrence shall be
counted as one.

     6.   Except as provided in par. (f), is guilty of
a Class G felony if the number of convictions under
ss. 940.09(1) and 940.25 in the person’s lifetime,
plus the total number of suspensions, revocations, and
other convictions counted under s. 343.307(1), equals
7, 8, or 9, except that suspensions, revocations, or
convictions arising out of the same incident or

                          18
                                                                        No.         2011AP2868-CR


       occurrence shall be counted as one.     The confinement
       portion of a bifurcated sentence imposed on the person
       under s. 973.01 shall be not less than 3 years.

            7.   Except as provided in par. (f), is guilty of
       a Class F felony if the number of convictions under
       ss. 940.09(1) and 940.25 in the person’s lifetime,
       plus the total number of suspensions, revocations, and
       other convictions counted under s. 343.307(1), equals
       10 or more except that suspensions, revocations, or
       convictions arising out of the same incident or
       occurrence shall be counted as one.     The confinement
       portion of a bifurcated sentence imposed on the person
       under s. 973.01 shall be not less than 4 years.
Wis. Stat. § 346.65(2)(am) (emphasis added).

       ¶30    The      statutory    history       of     Wis.       Stat.        § 346.65(2)

reveals       a   general       trend   toward        harsher       mandatory           minimum

sentences as the number of OWIs increases.                        The first version of

§ 346.65(2)         distinguished       between        the        first       OWI     and     all

subsequent        OWIs.      See    Wis.     Stat.     § 346.65(2)             (1957).         In

contrast, the current statute makes eight different OWI-offense

distinctions and provides increasing penalties depending on the

number       of   OWIs    the     offender      has     committed             and,     in    some

instances,        on   the   temporal      proximity         of    an     offense       to    the
offender's previous OWI.

       ¶31    Perhaps     the    most   important       aspect          of    the     statute's

history is that every version of the statute since its inception

imposed mandatory minimum sentences for second and subsequent

OWIs until subds. 6. and 7. were introduced by 2007 Wis. Act

111.     But shortly after 2007 Wis. Act 111 went into effect, the

legislature added minimum sentencing language in 2009 Wis. Act

100.     The question, then, is whether subds. 6. and 7. remain
anomalies in an otherwise consistent statutory scheme——that is,

                                           19
                                                               No.      2011AP2868-CR



no    mandatory      minimum   sentence    of    confinement      is   required——or

whether the legislature imposed mandatory minimum sentences for

seventh and subsequent OWIs so that they now conform with the

sentencing structure for OWIs less than seven.                       To help answer

that question, we turn to the statute's structure, context, and

contextually manifest purposes.

                      C. Statutory Structure and Context

       ¶32    In addition to statutory history, the structure and

context of a statute provide insight into its plain meaning.

Kalal,    271      Wis. 2d 633,   ¶46.      Even    a   cursory      glance   at   the

structure of Wis. Stat. § 346.65(2)(am) reveals a pattern: the

mandatory minimum sentences generally increase with the number

of OWIs.           In addition, the probation statute and provisions

within § 346.65(2)(am) implicitly permit probation                     for a second

through a sixth OWI but do not appear to consider probation for

seventh      and    subsequent    OWIs.        Moreover,     § 346.65(2)(bm)-(dm)

explicitly allow probation for OWIs two through four.                     Thus, the

statutory structure and context suggest that § 346.65(2)(am)6.
imposes a mandatory minimum period of confinement so that the

statute maintains its graduated penalty structure.

       ¶33    Several provisions in Wis. Stat. § 346.65(2) and in

the    probation       statute     specifically         or    implicitly      permit

probation for OWI offenses less than seven but are silent as to

seventh       and      subsequent         offenses.            Wisconsin       Stat.

§ 346.65(2)(bm)-(dm) plainly allow probation for OWI offenses

two through four.         See Wis. Stat. § 346.65(2)(bm)-(dm) (allowing
a reduction of the confinement period if the offender completes
                                          20
                                                                   No.      2011AP2868-CR



"a    probation     period       that    includes      alcohol       and    other     drug

treatment" in certain counties).                    In addition, the probation

statute,     Wis.    Stat.       § 973.09,        specifically       refers     to     the

misdemeanor OWI offenses and allows probation for offenses with

mandatory minimums of one year or less as long as the court

requires the offender to serve the mandatory minimum sentence as

a condition.        See Wis. Stat. §§ 973.09(1)(d), 973.09(2)(a)1.d.,

973.09(2)(am).       However, the probation statute does not mention

the    OWI   felonies10      or    permit         probation    for       offenses     with

mandatory    terms    of     imprisonment         longer    than     one   year.       The

probation    statute       and    Wis.    Stat.     § 346.65(2)(am)         contain     no

language     to   suggest        that    a    court    could     place      someone     on

probation for a seventh OWI offense.11                     Without some indication


      10
       Although the probation statute does not mention the OWI
felonies, Wis. Stat. § 973.09(1)(d) would still allow probation
for up to six OWIs because even though a sixth OWI is a Class H
felony, it carries a mandatory minimum sentence of less than one
year.     See   Wis.   Stat.  §§ 346.65(2)(am)5.,  973.09(1)(d).
Wisconsin Stat. § 973.09(1)(d) states:

           If a person is convicted of an offense that
      provides a mandatory or presumptive minimum period of
      one year or less of imprisonment, a court may place
      the person on probation under par. (a) if the court
      requires, as a condition of probation, that the person
      be confined under sub. (4) for at least that mandatory
      or presumptive minimum period.

Wis. Stat. § 973.09(1)(d).               Thus, because a sixth OWI carries a
mandatory minimum of six                months, a court could still order
probation.
      11
       Although a statute need not expressly permit probation
for a court to order probation, the context of Wis. Stat.
§ 346.65(2)(am)6. suggests that probation is not allowed.

                                             21
                                                         No.      2011AP2868-CR



that probation is permitted, the mandatory minimum bifurcated

sentence    language    in   § 346.65(2)(am)6.   makes    probation     for    a

seventh OWI suspect.

      ¶34     Williams suggests that because § 346.65(2)(am)6. does

not explicitly prohibit probation, the sentencing court retains

the   option    to   order   it.    However,     this    is    true   only    if

§ 346.65(2)(am)6. does not impose a mandatory minimum sentence

of    three     years   initial    confinement.          See     Wis.    Stat.

§ 973.09(1)(d); State v. Lalicata, 2012 WI App 138, ¶11, 345

Wis. 2d 342, 824 N.W.2d 921 (stating that a mandatory minimum

bifurcated sentence is inconsistent with permitting probation).

Thus, Williams' argument assumes his conclusion.               If the statute

imposes a mandatory minimum in prison, there would be no reason

to prohibit probation.         The fact that other unrelated statutes




     Under one view, Wis. Stat. § 973.09(1)(d) would prevent
probation for a seventh OWI because it authorizes probation if
the offense "provides" a mandatory minimum of one year or less.
Relevant definitions of "provide" include: "to make a proviso or
stipulation" or "to supply for use."    Webster's New Collegiate
Dictionary 928 (1977).   Arguably, Wis. Stat. § 346.65(2)(am)6.
"provides" a mandatory minimum period of imprisonment of three
years, thereby falling outside the purview of the probation
statute.

                                     22
                                                                  No.       2011AP2868-CR



do explicitly prohibit probation in an abundance of caution12 is

irrelevant.

      ¶35       The structure of the statute also demonstrates that

the   place      of   imprisonment   moves    from    jail       to     prison    as   the

number of OWIs increases.            Under Wis. Stat. § 346.65(2)(am)3.-

4.,   offenders       must   serve   a   sentence         in     county     jail.       In

contrast,        § 346.65(2)(am)4m.——the       first           felony      in    the   OWI

sentencing scheme——does not specify where an offender must be

confined.        The lack of specificity gives sentencing courts the

option     to    sentence    offenders   either      to    jail       or   prison13    for

      12
       For example, Wis. Stat. § 939.618 (mandatory minimum
sentence statute for repeat serious sex crimes) and § 939.619
(mandatory minimum sentence statute for repeat serious violent
crimes) both clearly require mandatory minimum sentences of
three and a half years in addition to saying, "The court may not
place the defendant on probation." Wis. Stat. §§ 939.618(2)(a),
939.619(2). It is possible that the legislature recognized the
serious nature of the offenses covered in § 939.618 and
§ 939.619   and  decided   to  explicitly   prohibit  probation.
However, by requiring a mandatory minimum sentence longer than
one year, the legislature did not need to specify that the court
could not order probation.
      13
       By not expressing whether a person must be confined in
jail or prison, Wis. Stat. § 346.65(2)(am)4m. gives courts
discretion to impose a sentence in either, so long as any jail
term is a year or less and any prison term imposed is a year or
more.

           Except as provided in s. 973.032, if a statute
      authorizes imprisonment for its violation but does not
      prescribe the place of imprisonment, a sentence of
      less than one year shall be to the county jail, a
      sentence of more than one year shall be to the
      Wisconsin state prisons and the minimum under the
      indeterminate sentence law shall be one year, and a
      sentence of one year may be to either the Wisconsin
      state prisons or the county jail.

                                         23
                                                            No.      2011AP2868-CR



violating subd. 4m., depending on the length of the sentence.

Like the progression of increasing mandatory minimum sentences,

the statute's confinement options increase in severity, moving

from jail to an option of either prison or jail for more serious

offenses.      The next step in that progression would be to require

confinement in a state prison, and § 346.65(2)(am)6.-7. are the

only subdivisions to mention bifurcated sentences specifically,

which necessarily involve time in prison.                   They are also the

only subdivisions to mention a mandatory minimum sentence of

more   than    one   year.     Thus,     an   interpretation      that   subd.   6.

requires a sentencing court to impose a bifurcated sentence with

at least three years of initial confinement would follow the

statute's graduated penalty structure as well as the shift from

jail sentences to prison sentences.

                     D. Contextually Manifest Purposes

       ¶36    In addition to the statutory history and structure,

the contextually manifest purposes of Wis. Stat. § 346.65(2)(am)

are relevant to our plain meaning analysis.                    See Kalal, 271
Wis. 2d 633, ¶¶48-49.          Wisconsin Stat. § 346.65(2)'s provisions

for    probation     and     treatment    and    the   escalating        mandatory

minimums      provide      contextual     evidence     of   several       possible

purposes: punishment, treatment, and protecting the public from

repeat OWI offenders.          All three purposes would be served by a

graduated penalty structure with increasing mandatory minimums.

The graduated structure would impose greater punishment for more


Wis. Stat. § 973.02.

                                         24
                                                                       No.       2011AP2868-CR



serious       offenses.           It    would        allow       for   treatment      during

confinement          in    either       a    probation           treatment    program      as

contemplated by Wis. Stat. § 346.65(2)(bm)-(dm)14 or a program

like    the     Alcohol      or     Other     Drug       Abuse    (AODA)     program15    for

offenders sentenced to prison.                      Finally, the graduated penalty

structure would protect the public by keeping repeat offenders

confined for longer periods of time.

       ¶37     Williams      argues         that    reading       § 346.65(2)(am)6.        to

allow       courts   to    place     the     defendant       on    probation      would   not

contradict       the      purpose      of    the    statute       to   provide     graduated

penalties.           He   suggests      that       the    court     could    maintain     the

graduated penalty structure by ordering any of the following

penalties for a seventh OWI offense:

            1.   impose a prison sentence, including between
       three and five years of confinement (assuming no
       repeater or other sentence enhancer);

            2.   impose and stay a prison sentence with
       between three and five years of confinement, and place
       the defendant on probation with up to one year of jail
       confinement as a condition;

       14
       As discussed in paragraph 33, Wis. Stat. § 346.65(2)(bm)-
(dm) allow a reduction of the confinement period if the offender
completes "a probation period that includes alcohol and other
drug treatment" in certain counties.
       15
       The Wisconsin Department of Corrections website describes
the AODA program as "[a] cognitive-behavioral based treatment
program provided to offenders with serious, chronic issues with
both substance abuse/dependence and criminal behavior.    Lessons
are presented by social services staff and DOC contracted
providers to groups of 10 to 18 offenders."     Alcohol or Other
Drug Abuse Programs, doc.wi.gov, http://doc.wi.gov/about/doc-
overview/division-of-adult-institutions/ops/primary-treatment-
programs/aoda (last visited July 3, 2014).

                                               25
                                                                No.      2011AP2868-CR


         3.   withhold sentence, and place the person on
    probation with up to one year of jail confinement as a
    condition; or

         4.    sentence the person up to one year in jail,
    which is, in practice, nine months of confinement with
    good time.
It is true that these four options make it possible for a court

to impose a sentence with more confinement than required for a

sixth OWI and retain the graduated penalty structure.                        However,

under   Williams'    view,      a   court     is    awkwardly    confined      in      its

sentencing——free     to     order      probation       with     jail    time      as    a

condition     for   up    to    a     year    but    precluded        from   ordering

confinement terms between one and three years.

    ¶38     Williams'      interpretation           would     not      advance         the

contextually manifest purpose to punish repeat offenders because

a court could decline to order any period of confinement for

someone who committed a seventh, eighth, ninth, or higher OWI

offense.      Moreover, Williams' interpretation                 less effectively

protects the public because it allows courts to release someone

who just committed a seventh or higher OWI offense.                            On the

other hand, interpreting the statute to require a bifurcated

sentence with at least three years of confinement advances the

statute's purposes.            The mandatory minimum period of initial

confinement     maintains       the    graduated       penalty        structure        and

punishes more serious crimes with increased confinement.                               It

protects the public by confining repeat offenders for longer

periods.    It also leaves room for treatment; for example, the

judgment of conviction states that Williams is "to participate
in AA and treatment and evaluation of alcohol condition while in

                                         26
                                                          No.   2011AP2868-CR



prison."16      Thus, the State's interpretation more effectively

accomplishes the statute's purposes.17

                                 E. Ambiguity

      ¶39    Although     the   statutory   history,   structure,    context,

and contextually manifest purposes all militate in favor of an

interpretation that Wis. Stat. § 346.65(2)(am)6. requires courts

to impose a bifurcated sentence with a minimum period of initial

confinement, it is not unreasonable for well-informed people to

disagree.     Standing in the way of plain meaning is the fact that

Act 100 introduced a clear mandatory minimum in subd. 4m. but

not   in    subds.   6.   and   7.;   § 346.65(2)(am)6.    clearly   did   not

require a mandatory minimum sentence before Act 100 was passed;

and Act 100 increased probation options by allowing probation

for second and third OWI offenses.              On balance, the statute's

history, structure, context, and contextually manifest purposes

point to a reading that subds. 6. and 7. require imposition of

mandatory minimum bifurcated sentences, but the statute is not

      16
       The judgment of conviction also stated that Williams
would "undergo AODA assessment and follow through with any
treatment and/or counseling recommended."
      17
       As is often stated in the context of a rational basis
review of a statute, the legislature need not choose the most
efficient or effective mechanism to achieve its purpose.    See
Ferdon v. Wis. Patients Comp. Fund, 2005 WI 125, ¶76, 284
Wis. 2d 573, 701 N.W.2d 440.       However, in interpreting a
statute, we strive to give a statute "its full, proper, and
intended effect." State ex rel. Kalal v. Circuit Court for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Thus,
the fact that under the State's interpretation the statute more
effectively accomplishes its contextually manifest purposes is
helpful in our analysis but not dispositive.

                                       27
                                                               No.      2011AP2868-CR



so    clear   that    well-informed        people     should   not     have       become

confused.      Therefore, we conclude that the statute is ambiguous18

and   turn    to    the    legislative    history     to    glean    the    statute's

meaning.

                              F. Legislative History

       ¶40    While the statutory history, structure, context, and

purposes      provide      indicia     that    Wis.   Stat.    § 346.65(2)(am)6.

requires      the    court     to     impose   a    bifurcated       sentence,       the

legislative         history     affirmatively         demonstrates         that     the

legislature so intended.               2009 Senate Bill 66, introduced by

Senator Jim Sullivan, was signed into law as Act 100, which

added the "bifurcated sentence" language to § 346.65(2)(am)6.-7.

The   Legislative         Reference    Bureau's     (LRB)   analysis       of   Senate

Substitute Amendment 1 to 2009 S.B. 6619 stated:

       The substitute amendment requires a person who commits
       a seventh, eighth, or ninth OWI-related offense to




       18
       Williams contends that the legislature has required the
court to impose mandatory minimum bifurcated sentences in other
statutes and that if it wanted to do so in Wis. Stat.
§ 346.65(2)(am)6. it could have.      Cf. Wis. Stat. § 939.616.
However, comparisons to unrelated statutes are unhelpful.    The
mere fact that the legislature could have been clearer does not
resolve the ambiguity.    It is a basic principle of statutory
construction that a reviewing court may consider "surrounding or
closely-related statutes" to arrive at the statute's plain
meaning.    Kalal, 271 Wis. 2d 633, ¶46 (citations omitted).
Thus, citations to unrelated statutes are not persuasive.
       19
       Substitute Amendment 1 to 2009 S.B. 66 contained the same
language as Wis. Stat. § 346.65(2)(am)6.

                                          28
                                                     No.    2011AP2868-CR


    serve a minimum period of confinement or [sic20] three
    years in prison under a bifurcated sentence and
    requires a person who commits a tenth or subsequent
    OWI-related offense to serve a minimum period of
    confinement of four years in prison under a bifurcated
    sentence.
Drafting File, 2009 Wis. Act 100, Analysis by the Legislative

Reference Bureau of Substitute Amendment 1 for 2009 S.B. 66,

Legislative Reference Bureau, Madison, Wis.          The LRB's analysis

demonstrates    that   2009   S.B.    66   created   mandatory   minimum

bifurcated sentences for OWI offenses numbering seven or higher.
    ¶41   In addition to the LRB analysis, the Committee Report

from the Joint Review Committee on Criminal Penalties for 2009

S.B. 66 supports a reading that the statute requires courts to

impose a bifurcated sentence with a mandatory minimum period of

initial confinement.    Under a section titled, "Minimum period of

confinement for OWI offenders with multiple prior offenses," the

Legislative Fiscal Bureau (LFB) stated that the bill:

    would specify that the confinement portion of a
    bifurcated sentence must be not less than three years
    for a person convicted of a seventh, eighth, or ninth
    OWI offense, and not less than four years for a person
    convicted of a tenth or subsequent OWI offense. . . .
    There is currently no mandatory minimum period of
    confinement specified for these offenses.
Drafting File, 2009 Wis. Act 100, Legislative Reference Bureau,

Madison, Wis.

    20
       Although the LRB analysis says "or," the context makes it
apparent that it should say "of." As the dissent in the court
of appeals noted, the typo should be considered in light of the
sentence that follows it, which contains similar language
without the error.   See State v. Williams, 2013 WI App 74, ¶32
n.4,   350   Wis. 2d 311,   833   N.W.2d 846   (Blanchard,   J.,
dissenting).

                                     29
                                                                    No.         2011AP2868-CR



    ¶42     Although the language in the LFB memorandum mirrors

the statutory language, it is helpful because it contrasts that

language    with    the   assertion        that    there     was     not    a     mandatory

minimum before 2009 S.B. 66, suggesting that S.B. 66 imposed a

mandatory minimum.        The LFB also included a table that had a row

titled, "Minimum confinement period for multiple OWI offenders;

applicability of house arrest" and indicated, "For 7th, 8th, and

9th offense: 3 years."            Id.     That same table indicated in a row

titled     "Probation     for      OWI     offenders"        that    "Probation          [is]

allowed for 2nd and 3rd offense, in addition to 4th offense

OWI."     Id.    The table did not suggest that probation was allowed

for seventh and subsequent offenses.

    ¶43     After     2009        S.B.    66    was     enacted,          the     Wisconsin

Legislative Council released an Act Memo for Act 100.                             Wisconsin

Legislative Council Act Memo for 2009 Wis. Act 100 (Jan. 8,

2010),                                    available                                        at

http://legis.wisconsin.gov/lc/publications/act/2009/act100-

sb066.pdf.       The Act Memo states that one of Act 100's major
changes     is     that      it     "[e]stablish[es]           minimum           terms    of

imprisonment for 4th offense felony and 5th and subsequent OWI-

related offenses."          Id. (emphasis added).               Thus, the Act Memo

equates the "shall be fined . . . and imprisoned" language for

the fourth offense felony through sixth offense OWIs with the

bifurcated       sentence       language        for     seventh       and       subsequent

offenses.        There    is      no     dispute      that    the    statute        imposes

mandatory minimum sentences for fourth offense felony through
sixth offense OWIs.
                                           30
                                                                   No.      2011AP2868-CR



       ¶44    The Act Memo also includes a table based on the LFB's

table and states that seventh, eighth, and ninth offense OWIs

have a mandatory minimum confinement period of three years and

that    probation        is   allowed    for       second    through     fourth    offense

OWIs.       Id.   In addition, the LRB published a "Legislative Brief"

for    Act    100   that      said,    "The    law    also    increases     the    minimum

period of confinement for serial offenders from the current 48

consecutive hours for all criminal OWI offenders, to a minimum

of three years for seventh, eighth, and ninth offenses and a

minimum of four years for a 10th or subsequent offense."                                Wis.

Legis.       Reference        Bureau,    Increased          Penalties     and     Ignition

Interlock Requirements for Drunk Driving Offenses, LRB-10-2, at

2 (Apr. 2010).

       ¶45    Although some of the legislative history mirrors the

language in the statute, as a whole, it clarifies the statute's

ambiguity:        Wis.     Stat.      § 346.65(2)(am)6.         requires        sentencing

courts to impose a bifurcated sentence with at least three years

of initial confinement.21
       ¶46    Applying        the     correct      law   to    Williams'        case,    the

circuit court stated, "given all the circumstances, I think that

the legislature has made the decision that that is the minimum

       21
       Because the legislative history clarifies the ambiguity,
the rule of lenity does not apply. The "rule of lenity provides
generally that ambiguous penal statutes should be interpreted in
favor of the defendant."    State v. Cole, 2003 WI 59, ¶67, 262
Wis. 2d 167, 663 N.W.2d 700 (footnote omitted).     The rule of
lenity applies only when "(1) the penal statute is ambiguous;
and (2) we are unable to clarify the intent of the legislature
by resort to legislative history." Id. (footnote omitted).

                                              31
                                                                No.        2011AP2868-CR



term of confinement, I think that is an appropriate term of

confinement for you."          Because the circuit court applied the

correct law, we reject Williams' argument that the circuit court

violated his due process right to be sentenced based on accurate

information.            Therefore,      Williams        is     not     entitled      to

resentencing.

                                   IV. CONCLUSION

    ¶47     We conclude that Wis. Stat. § 346.65(2)(am)6. requires

sentencing courts to impose a bifurcated sentence with at least

three years of initial confinement for a seventh, eighth, or

ninth OWI offense.          In reaching this conclusion, we note that

although    the        statutory     history,      context,          structure,      and

contextually manifest purposes of § 346.65(2)(am)6. suggest that

it imposes a mandatory minimum period of initial confinement,

the statute is ambiguous.            The legislative history resolves the

ambiguity        and    contains       several      clear        statements        that

§ 346.65(2)(am)6.         requires     courts      to    impose        a   bifurcated

sentence with a mandatory minimum period of initial confinement.
Therefore, we reverse the court of appeals.

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

reversed.




                                         32
                                                               No.         2011AP2868-CR




    ¶48    SHIRLEY      S.     ABRAHAMSON,       C.J.     (concurring).             The

majority opinion strays far from the text of the statute to

interpret Wis. Stat. § 346.65(2)(am)6. as requiring a mandatory

bifurcated sentence.1          The text does not refer to a mandatory

minimum sentence.

    ¶49    The    majority      opinion     ditches     the     plain        text   and

interprets    the     statute,    which     it    views    as        ambiguous,2     by

examining the statutory history, the statutory structure, the

legislative history,3 and the statute's "contextually manifest

purpose," a phrase not defined in the statutes or case law.                          An

examination of a "contextually manifest purpose" is too easily

manipulated      to    provide     a      workable      tool         for     statutory

interpretation.

    ¶50    The      majority     opinion     concludes      that       a     mandatory

minimum penalty conforms to the graduated penalty structure for

serial, multiple offenders that is designed to accomplish the

"contextually manifest purposes" of punishment, treatment, and
protection of the public.         Majority op., ¶36.




    1
        Majority op., ¶47.
    2
       Majority op., ¶¶6, 39. The defendant argued at the court
of appeals and in this court that the statute was unambiguous
and that its plain meaning did not create a mandatory bifurcated
sentence.   The State argued that the statute was ambiguous and
that it was subject to more than one reasonable interpretation.
    3
       Nothing in the legislative history expressly states the
legislative intent about requiring a bifurcated sentence with a
mandatory minimum confinement period of three years.

                                       1
                                                                    No.        2011AP2868-CR


     ¶51    A mandatory minimum penalty is not, however, the only

possible interpretation of the statute that would meet those

contextually     mandated      purposes.             The     legislature         may        have

intended    to   grant    a   circuit      court      discretion          in   imposing        a

sentence on a serial offender for whom incarceration has not

effectively deterred repeat offenses.                      The legislature may have

had in mind the beneficial effects of granting a sentencing

court    discretion      to   enable      it   to    choose       the     most    effective

sentencing strategy for each individual to reduce recidivism and

protect public safety.

     ¶52    The legislature is well aware that the court system

has developed effective justice strategies, including problem-

solving treatment courts, to treat and prevent behaviors such as

substance    abuse    that     may     underlie        an    individual's         criminal

behavior.    The legislature has supported these efforts.

     ¶53    For example, Waukesha County has an Alcohol Treatment

Court (WATC).4     Milwaukee County runs a similar program.                        Many of

the county programs are funded by the legislature through a
grant program (popularly known as TAD, Treatment and Diversion)

administered by the Department of Justice.5                        The goal of these

treatment    court    programs       is    not      only    to    address        underlying

issues    such   as   substance        abuse        that    may    contribute          to    an



     4
       Waukesha Alcohol Treatment Court, Wisconsin Community
Services,
http://www.wiscs.org/programs/court_community_services/waukesha_
drug_treatment/ (last visited June 25, 2014).
     5
         Wis. Stat. Ann. § 165.95 (West Supp. 2013).

                                           2
                                                                No.      2011AP2868-CR


individual's criminal behavior but also to enhance public safety

and reduce recidivism.

      ¶54    In   contrast    to    the    majority     opinion,      the    court    of

appeals concluded that the statute did not establish a mandatory

minimum     sentence.       The    court   of    appeals,      like    the   majority

opinion, examined the statutory history and surrounding statutes

that contain the mandatory minimum language (that is missing in

Wis. Stat. § 346.65(2)(am)6.), the complex sentencing scheme,

and   the    public     policy     concerns      that    could        have   led     the

legislature not to create a mandatory minimum statute.

      ¶55    After reading the majority opinion and rereading the

decision of the court of appeals, I find the court of appeals'

reasoning more convincing.

      ¶56    Nevertheless I concur, rather than dissent, because

the   legislature     has    recently      clarified     the    language      of     the

statute to now require a mandatory minimum sentence.

      ¶57    On April 11, 2013, the court of appeals filed its

opinion in the instant case, holding that a bifurcated sentence
for a seventh OWI offense was not mandatory under Wis. Stat.

§ 346.65 (2009-10).         Later in the same month, 2013 Assembly Bill

180 was introduced in the Wisconsin Assembly, requiring a court

to impose a bifurcated sentence for a seventh, eight, ninth,

tenth, or subsequent OWI offense.               The bill was enacted on April

8, 2014, published on April 9, 2014, and took effect April 10,

2014.6



      6
          Majority op., ¶12, n.5.

                                           3
                                                                            No.     2011AP2868-CR


      ¶58    The        Wisconsin       Legislative             Council       Act    Memorandum

regarding the new statute states that the legislature modified

the     statute     to        require       the         mandatory      bifurcated      sentence

language as a response to the court of appeals' interpretation

in the instant case.7

      ¶59    Although          the    new       legislation          does    not    govern    the

present     case,       the    provisions           of    the    new    legislation     may   be

accorded weight to aid us in determining what the legislature

intended in the statute at issue in the instant case.                                        See,

e.g.,     State    v.    Cole,       2003      WI       59,   ¶40,   262    Wis. 2d 167,      663

N.W.2d 700        (interpreting            a     statute        based       on    later-in-time

"supplemental legislation");                    McGarrity v. Welch Plumbing Co.,

104   Wis. 2d 414,         427,      312       N.W.2d 37        (1981)      (interpreting     the

purpose of child labor laws and administrative rules based on

later enactments by the legislature).8

      ¶60    In the instant case, I read the legislative response

to the court of appeals to signal the legislature's purpose.

      ¶61    For the foregoing reasons, I write separately.



      7
       Wisconsin Legislative Council Act Memo, 2013 Wis. Act 224
[2013 A.B. 180], OWI Penalties and Testing at 1, available at
https://docs.legis.wisconsin.gov/2013/related/lcactmemo/act224.p
df (last visited June 25, 2014).
      8
       See generally 2B Norman J. Singer & J.D. Shambie Singer,
Sutherland Statutes and Statutory Construction § 49:10 at 129
(7th ed. 2012) ("Where a legislature amends a former statute, or
clarifies a doubtful meaning by subsequent legislation, such
amendment or subsequent legislation is strong evidence of the
legislative intent behind the first statute," citing, inter
alia, McGarrity v. Welch Plumbing Co., 104 Wis. 2d 414, 312
N.W.2d 37 (1981)).

                                                    4
                                                         No.      2011AP2868-CR


    ¶62   I   am   authorized   to       state   that   Justice   ANN   WALSH

BRADLEY joins this concurrence.




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