785 N.W.2d 516 (Wis. 2010), 2006AP1811-CR, State v. Carter

Docket Nº:2006AP1811-CR.
Citation:785 N.W.2d 516, 2010 WI 77
Opinion Judge:SHIRLEY S. ABRAHAMSON, Chief Justice.
Party Name:STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Patrick C. CARTER, Defendant-Appellant.
Attorney:For the plaintiff-respondent-petitioner the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general. For the defendant-appellant there was a brief and oral argument by Ellen Henak, assistant state public defender.
Case Date:July 14, 2010
Court:Supreme Court of Wisconsin
 
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Page 516

785 N.W.2d 516 (Wis. 2010)

2010 WI 77

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.

Patrick C. CARTER, Defendant-Appellant.

No. 2006AP1811-CR.

Supreme Court of Wisconsin.

July 14, 2010

Argued Sept. 12, 2008, Oct. 21, 2009.

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For the plaintiff-respondent-petitioner the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant there was a brief and oral argument by Ellen Henak, assistant state public defender.

SHIRLEY S. ABRAHAMSON, Chief Justice.

¶ 1 This case addresses the award of sentence credit for the time a criminal defendant spends in jail while awaiting trial and sentencing. The statutory provision at issue here is mandatory and the language at issue in this case amounts to one simple sentence: " A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed." Wis. Stat. § 973.155(1)(a).

¶ 2 When adopted, this provision was meant to provide " a simpler, more equitable system ...." 1 Today's decision brings to a close the tortured saga of this case. Perhaps it will enable circuit courts to calculate and award sentence credit in a simpler and more equitable manner. We

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first heard oral argument in this case on September 12, 2008, in tandem with State v. Johnson (Elandis Johnson), 2009 WI 57, 318 Wis.2d 21, 767 N.W.2d 207. In that case, we reached a unanimous result, holding that the defendant in that case was not entitled to the sentence credit he sought. It appeared that the goal of simplicity might be served.

¶ 3 Today, we take another step forward to help clarify sentence credit in a case involving concurrent sentences.

¶ 4 This case, in which the bottom line is whether or not a criminal defendant should be awarded 302 or 305 days of sentence credit, has now been before this court in some form for over 800 days. In the lifespan of this appeal, the State has three times abandoned and reformulated its legal position. The defendant has offered more than one proposal for sentence credit.

¶ 5 In the most recent foray in this court, the parties filed a joint brief, in which the State joined the defendant, agreeing that he was entitled to 305 days of sentence credit. Neither party requested a second oral argument, and apparently neither desired it. This court nevertheless compelled the lawyers to appear, which they did. That was on September 22, 2009. Another eight months have passed. The court now issues a decision in which five opinions (totaling more than 100 typed pages) are offered with four justices joining this opinion (Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, Justice N. Patrick Crooks, and Justice Michael J. Gableman) agreeing on the interpretation of the statutes and case law and the bottom line, that is, just how many days of sentence credit should be awarded to the defendant in this case.

¶ 6 Circuit courts deal with sentence credit every day. The statute proposes a simple test. The four justices who join this opinion hope we have provided greater clarity in awarding sentence credit in a case involving concurrent sentences.

I

¶ 7 This is a review of a published decision of the court of appeals 2 reversing the order of the Circuit Court for Milwaukee County, Mel Flanagan, Judge, denying sentence credit to defendant Patrick Carter on his sentence in Wisconsin for time spent in pre-sentencing custody in Illinois.

¶ 8 The court of appeals disagreed with the circuit court and gave the defendant credit on his Wisconsin sentence for time spent in Illinois custody. The court of appeals remanded the matter to the circuit court to grant the defendant 324 days of sentence credit.

¶ 9 On review, we modify the decision of the court of appeals and grant the defendant a total of 305 days of credit, and as modified, affirm the decision of the court of appeals.

¶ 10 The instant case presents a question of interpreting and applying the sentence credit statute, Wis. Stat. § 973.155(1) (2007-08) 3 to a particular factual circumstance. The defendant entered a plea of guilty to a felony in Wisconsin, first degree recklessly endangering safety, in violation of Wis. Stat. § 941.30(1). The sentence for this crime was imposed to run concurrently with a sentence previously imposed in Illinois for an unrelated armed robbery. Prior to his guilty plea, conviction, and sentencing on the Wisconsin

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crime, the defendant was in presentence custody in Illinois from the time of his arrest in Illinois (December 13, 2003) until his sentencing on the Illinois charge (October 19, 2004).4

¶ 11 The defendant seeks credit for this presentence time, claiming this custody was in connection with the course of conduct for which sentence was imposed in Wisconsin as well as being in connection with the robbery charge in Illinois. A defendant seeking sentence credit in Wisconsin has the burden of demonstrating both " custody" and its connection with the course of conduct for which the Wisconsin sentence was imposed.5

¶ 12 Interpretation of a statute and application of a statute, here Wis. Stat. § 973.155(1), to undisputed facts present questions of law which this court determines independently of the circuit court and court of appeals but benefiting from the analyses of both courts.6

¶ 13 Because the defendant had not been surrendered to Wisconsin during the presentence custody in Illinois, the circuit court denied the defendant's motion requesting 324 days of sentence credit for his presentence custody. The circuit court awarded the defendant credit for 97 days, calculated from May 26, 2005, when he was arrested for extradition to Wisconsin, to August 30, 2005, when he was sentenced on the Wisconsin charge.7

¶ 14 In contrast, the court of appeals held that the defendant was entitled to 324 days of sentence credit for his presentence confinement in Illinois from the date he was arrested in Illinois until the date he was sentenced on the Illinois charge; this time spent in Illinois custody was in connection with the course of conduct for which sentence was imposed in Wisconsin.

¶ 15 This court granted the State's petition for review. After hearing oral argument on September 12, 2008, we determined that the record in this case was " insufficiently developed to demonstrate whether all or some of the defendant's jail time in Illinois was ‘ in connection with the course of conduct for which sentence was imposed’ in Wisconsin." Order of September 17, 2008. The cause was remanded to the Circuit Court for Milwaukee County " to receive the documents relating to the Illinois presentence proceedings and for a hearing to determine the ground or grounds on which the defendant was held in an Illinois jail from December 14, 2003, to November 2, 2004."

¶ 16 The circuit court for Milwaukee County, Patricia D. McMahon, Judge, received 15 exhibits into the record, an affidavit of an Investigator with the Office of the Public Defender, and the parties' proposed

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findings of fact. The circuit court issued findings of fact on June 17, 2009. We heard oral argument for a second time on October 21, 2009.

¶ 17 For the reasons set forth, we grant the defendant 305 days of sentence credit on the Wisconsin sentence. We conclude, as do the parties, that under Wis. Stat. § 973.155(1) the defendant's presentence custody in Illinois was in connection with the course of conduct for which he was sentenced in Wisconsin for 305 days. He was in custody in connection with the Wisconsin charge for which he was sentenced from the date of his arrest in Illinois on December 13, 2003, until he was sentenced on an Illinois conviction on October 19, 2004, excluding six days between December 15 and December 21. During those six days the defendant was serving a sentence on an Illinois charge and was not held in custody in connection with the course of conduct for which he was sentenced in Wisconsin.

¶ 18 The decision of the court of appeals is therefore modified and as modified affirmed. The cause is remanded to the circuit court for entry of judgment consistent with this opinion.

II

¶ 19 The facts are not disputed by the parties, although the facts on which we now decide this case differ somewhat from the facts that were presented prior to our remand of the case to the circuit court.8

¶ 20 We adopt the findings of fact made by the Circuit Court for Milwaukee County, Patricia D. McMahon, Judge, in compliance with our remand of this case to the circuit court. The parties do not dispute these findings. Findings of fact shall not be set aside unless clearly erroneous. Wis. Stat. § 805.17(2). The circuit court's findings of fact in the present case are not clearly erroneous; they are supported by the 15 exhibits in the record. 9

¶ 21 The circuit court's final finding of fact states as follows: " From December 13, 2003, until November 2, 2004, defendant

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was in custody in Illinois. From December 15, 2003, to December 21, 2003, defendant was serving his sentence in Cook County Case No. TZ241194. The balance of the time from December 13, 2003, until October 19, 2004, defendant was held in custody resulting in part from the Wisconsin warrant issued in this case."

¶ 22 Following the Circuit Court's proceedings on remand, the State and the defendant filed a joint response in lieu of submitting letter briefs to this court. They stated that they have no objections to the Milwaukee County circuit court's findings of fact. The parties agreed: (1) that the defendant was arrested in Illinois...

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