Johnson v. Prast

• Citation: 548 F.2d 699
• Decision Date: 04 November 1976
• Docket Number: 76-1582,No. 76-1550,Nos. 76-1550,s. 76-1550,76-1550
• Parties: Elmer L. JOHNSON, Petitioner-Appellant, v. Paul PRAST, Respondent-Appellee. Harold SMITH, Petitioner-Appellant, v. Ramon L. GRAY, Respondent-Appellee. . Argued in
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 699

548 F.2d 699

Elmer L. JOHNSON, Petitioner-Appellant, v. Paul PRAST, Respondent-Appellee.

Harold SMITH, Petitioner-Appellant, v. Ramon L. GRAY, Respondent-Appellee.

Nos. 76-1550, 76-1582.

United States Court of Appeals, Seventh Circuit.

Argued in No. 76-1550 Nov. 4, 1976.

Argued in No. 76-1582 Jan. 7, 1977.

Decided Jan. 26, 1977.

Supplement to Opinion March 9, 1977.

James A. Walrath, Milwaukee, Wis., for petitioner-appellant in No. 76-1550.

Charlene R. Bohl, Post-Conviction Defense Project, Madison, Wis., for petitioner-appellant in No. 76-1582.

Bronson C. La Follette, Atty. Gen., John M. Schmolesky, Asst. Atty. Gen., Madison, Wis., for respondents-appellees.

Before CUMMINGS and TONE, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

TONE, Circuit Judge.

These habeas-corpus actions challenge state sentences as having been imposed without consideration of presentence custody resulting from defendants' financial inability to make bail. In Faye v. Gray, 541 F.2d 665 (7th Cir. 1976), this court held that the equal-protection clause of the Fourteenth Amendment requires a state sentencing judge to consider such presentence custody in sentencing, even though the total time imposed by the sentence and the presentence custody does not exceed the statutory maximum. Left undecided by that case is the question now before us: whether there should be a presumption that the required consideration was given to the presentence custody, as the District Court held in these cases, thereby placing on the petitioner in a federal habeas corpus proceeding the burden of showing that such consideration was not given. We hold that such a presumption may not be erected, and that the burden is on the state to show that the presentence jail time was considered in sentencing.

Johnson, petitioner in No. 76-1550, escaped from the Wisconsin Correction Camp System in December 1974 while serving two concurrent three-year sentences. On March 7, 1975, he was arrested on another charge in Salem, Oregon. Shortly thereafter, a Wisconsin detainer was filed, and on March 27, 1975, petitioner, having waived extradition, was returned to the Dane County Jail in Wisconsin to await trial on an escape charge. On April 14, he pleaded guilty to that charge and was sentenced to the statutory minimum of one year, to run consecutively to his earlier sentence. The maximum sentence that could have been imposed was five years.

The transcript of the hearing on April 14 contains no mention of the 39-day period petitioner spent in custody between his arrest in Oregon and the sentencing on the escape charge in Wisconsin. Subsequently, however, in an order denying petitioner's motion for post-conviction review under Wis.Stat. § 974.06, the sentencing judge found that petitioner had been confined for 39 days because of his inability to post bail, ¹ and that this information had been before In April 1976 petitioner filed this federal habeas-corpus action asserting that his right to equal protection had been violated by the alleged failure of the sentencing judge to credit the presentence jail time. ³ In reviewing the petition, the District Court apparently adopted the view of the Wisconsin Supreme Court in Hall v. State, 66 Wis.2d 630, 633-634, 225 N.W.2d 493, 495 (1975), that consideration of presentence jail time is a matter, not of constitutional right, but of the sentencing court's discretion. Accordingly, the court held that, in light of the circumstances outlined above, petitioner had "failed to meet his burden of showing that there was an abuse of discretion . . . that would present a constitutional question actionable on habeas corpus" and denied the petition. ⁴

                the court on the date of sentencing.  He then noted that the Wisconsin Supreme Court's decision in Byrd v. State, 65 Wis.2d 415, 222 N.W.2d 696 (1974), required consideration of this factor in fixing an appropriate sentence.  2  While he "strongly suspect(ed)" that he had considered the 39-day presentence custody when sentencing, the judge nevertheless took the opportunity to reconsider the sentence in light of that custody and concluded that reducing the sentence would be "inappropriate."
                

Smith, petitioner in No. 76-1582, received indeterminate sentences totaling twelve years upon conviction under a Wisconsin indictment charging offenses for which the total maximum imprisonment was twenty-seven years and six months. When sentenced he had already been in custody 134 days because of financial inability to make bail. The record of the sentencing, which occurred in 1973, prior to the Byrd decision, does not show whether the judge gave consideration to the presentence custody in fixing the sentence.

In ruling on Smith's federal habeas-corpus petition, the District Court noted that the total of presentence custody and sentences imposed did not exceed the statutory maximum, held that there was therefore a presumption of crediting, and dismissed the petition.

In Faye v. Gray, supra, 541 F.2d at 668, this court held that, at least where it is clear that the court did not consider an indigent's presentence custody in fixing his sentence, the prisoner is entitled to credit for that custody. The basis for the Faye decision was the holding in Williams v. Illinois, 399 U.S. 235, 244, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970), that

"the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status."

As the Faye opinion pointed out, this principle has been applied to require crediting whenever the sentence imposed, plus the presentence custody, exceeds the statutory maximum, ⁵ and, by some courts, even when the combined time is within the statutory maximum. ⁶ Courts adopting the latter position have reasoned that in either situation, whether the length of the sentence is attributable to the maximum set by the legislature or to a judicial sentencing order, the result is that an indigent is confined longer than a non-indigent receiving the same sentence. See, e. g., King v. Wyrick, 516 F.2d 321, 323 (8th Cir. 1975); Note, Sentence Crediting for the State Criminal Defendant A Constitutional Requirement, 34 Ohio St.L.J. 588 (1973). This view, implicitly adopted by this court in Faye, is now explicitly adopted.

In reaching this conclusion, we have considered the Supreme Court's decision in McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), holding that a state that gives good-time credit for a prison sentence need not give such credit for presentence incarceration in a county jail. The Court concluded that, because a purpose of the legislative classification, albeit not the "overriding" one, was to foster the prison rehabilitation program, it was rational and justifiable to exclude time spent in jails, which had no rehabilitation programs. Id. at 274-277, 93 S.Ct. 1055. No comparable basis has been suggested for distinguishing between presentence time and prison time in the cases before us.

Accordingly, extrapolating from Williams v. Illinois and Faye v. Gray, the equal-protection clause requires consideration by the sentencing judge of presentence custody resulting from inability to post bond. By this we mean that the judge must view that custody as punishment imposed for the offense and determine how much additional custody is appropriate in light of the time already served.

There remains to be decided the question the Faye court did not need to reach, viz., whether, in the absence of a showing by the prisoner that the presentence custody was not given the consideration the Constitution requires, a federal court in a habeas-corpus action will presume that it was considered. The answer to this question would seem to lie in the nature of the right asserted. Before Williams v. Illinois, supra, the Court of Appeals for the District of Columbia Circuit held that, where a statutory scheme required the crediting of an indigent's presentence jail time, it would conclusively presume that such credit had been given by the sentencing court "(w)herever it is possible, as a matter of mechanical calculation, that (it) could have been given." Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326, 330 (1966). Accord, Holt v. United States, 422 F.2d 822 (7th Cir. 1970). Since Williams the Fifth Circuit has adopted a similar presumption, see Parker v. Estelle, 498 F.2d 625, 627 (5th Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975), in a habeas-corpus action brought by a state prisoner. This is, of course, another way of saying the credit need not be given at all in such a case. The basis for the Fifth Circuit's position is its view that In contrast to the Fifth Circuit, however, this court's view in Faye, which we have reaffirmed, was that the indigent's right to consideration of presentence detention is constitutionally based even if the total detention is below the statutory maximum. ⁷ With that as a premise, the court in Faye questioned the invocation of a presumption to deny a constitutionally based right, but did not reach that issue, because it found that, if a presumption existed, it was "thoroughly rebutted" by the record. The Eighth Circuit's reasoning in King v. Wyrick, supra, 415 F.2d at 322, was the same. Now that the issue is squarely before us, we hold that there is no presumption, either conclusive or rebuttable. Unless the state proves in the habeas-corpus action that the judge, in fixing the sentence, gave consideration in the sense stated above to the time served before sentencing, the prisoner will be entitled to credit. An opposite result would derogate from the importance of the equal-protection right to have presentence jail time considered at the time of sentencing or, in the absence of such consideration, to have that time credited. Were we to presume consideration, and therefore...