Monsour v. Gray, 72-C-446.
| Decision Date | 17 April 1973 |
| Docket Number | No. 72-C-446.,72-C-446. |
| Citation | 375 F. Supp. 786 |
| Parties | Robert J. MONSOUR, Petitioner, v. Ramon L. GRAY, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Anthony J. Theodore, Atty., Corrections Legal Services Program, Madison, Wis. (Attorney for Petitioner on the Robert J. Monsour case), for petitioner.
William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent.
This petition for issuance of the writ of habeas corpus is before the court on the pleadings and briefs and oral argument of counsel.
Petitioner challenges the validity of the sentences he is serving on the ground that the sentencing judge did not credit him with 128 days of preconviction custody in a county jail exclusively attributable to his inability to post bail. He requests this court to order respondent to credit him with the amount of preconviction custodial time and with the amount of good time he would have earned had said time counted as part of the sentences imposed on him, and, further, to declare invalid on its face and as applied to him former § 959.07, now § 973.15(1), Wis.Stats., which provides for exclusion from the computation of time to be served under a term of imprisonment of any presentence time spent on bail or in custody at a county jail.
The record shows that on June 10, 1969, petitioner was convicted on his pleas of guilty of four counts of uttering false prescriptions to obtain dangerous drugs in violation of § 151.07(9); four counts, worthless checks, under § 943.24(1); one count, fraud on a motel keeper, under § 943.21; one count of uttering a false prescription to obtain narcotic drugs, under § 161.17(1); and one count of aggravated battery, contrary to § 940.22, all Wis.Stats. He was sentenced to one indeterminate term of not more than five years on the aggravated battery count and indeterminate terms of not more than one year each on the other counts, the one year terms to be served concurrently with each other and consecutively to the five year term. Although petitioner's pleas of guilty exposed him to some seventeen years of imprisonment, the cumulative term imposed on him does not exceed six years.
Petitioner submits that the failure to credit him with the 128 days preconviction jail time and with the good time he would have earned with respect to his incarceration were it considered as service of his sentence, impairs his constitutional right against double jeopardy, subjects him to cruel and unusual punishment, and denies him the equal protection of the laws by discriminating against him on account of his poverty which rendered him unable to raise bail, thereby subjecting him to preconviction custody and a total time of incarceration greater than that in the case of persons financially able to make bond.
Incidents of discrimination in criminal proceedings occasioned by poverty are deemed in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution. This principle has been applied in cases of incarceration solely attributable to poverty, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 38 L.Ed.2d 130 (1971) and to financial inability to meet preconviction bail, White v. Gilligan, 351 F.Supp. 1012 (S.D.Ohio, 1972); Parker v. Bounds, 329 F.Supp. 1400 (E.D.N.C.1971); Culp v. Bounds, 325 F.Supp. 416 (S.D.N.C. 1971.)1 The Parker and Culp cases both involved imposition of the statutory maximum penalty for the offenses of which the petitioners had been convicted, which terms, when added to the preconviction period, exceeded the maximum penalty provided by law.
In other cases where the sentence imposed was less than the statutory maximum period provided for the offense, a number of courts have recognized a conclusive presumption that the sentencing judge in fact considered the pretrial custodial time in determining the term of imprisonment. See Holt v. United States, 422 F.2d 822 (7th Cir. 1970) and Schreter v. Clark, 457 F.2d 1305 (5th Cir. 1972). Such a presumption cannot prevail in the instant case because the judge, in responding to petitioner's inquiry concerning credit for pretrial custodial time, advised him that he had no authority to give such credit, with the further comment that "he would not be inclined to change the sentence previously imposed."2
The court is of the opinion that, under recent authorities cited above, the equal protection clause proscribes an absolute bar to consideration of preconviction custody occasioned solely by financial inability to make bail in determining the term of imprisonment to be served on conviction. Accordingly, insofar as the sentence imposed on petitioner was premised on the judge's assumption that he had no authority to credit him with preconviction custodial time, it cannot stand.
However, since the Wisconsin Supreme Court in State v. Tew, 54 Wis.2d 361, 195 N.W.2d 615 (1972) apparently did not consider the...
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Jackson v. State of Ala.
...for an offense. See King v. Wyrick, 8 Cir. 1975, 516 F.2d 321; Ham v. North Carolina, 4 Cir. 1971, 471 F.2d 406; Monsour v. Gray, E.D.Wis.1973, 375 F.Supp. 786; White v. Gilligan, S.D.Ohio 1972, 351 F.Supp. 1012. We are bound by prior decisions in this circuit on this issue and hence declin......
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Laden v. Warden, Connecticut Correctional Inst.
...Arrington v. McGruder, 490 F.2d 795 (D.C. Cir.); Myers v. United States, 446 F.2d 232, 235 (9th Cir.); compare with Monsour v. Gray, 375 F.Supp. 786, 788 (E.D.Wis.); Culp v. Bounds, 325 F.Supp. 416, 419 (W.D.N.C.). This is manifestly impossible where the commissioner, not the court, is vest......
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Godbold v. District Court In and For Twenty-First Judicial Dist.
...(2d Cir. 1971); Durkin v. Davis, 390 F.Supp. 249 (E.D.Va.1975), rev'd on other grounds, 538 F.2d 1037 (4th Cir. 1976); Monsour v. Gray, 375 F.Supp. 786 (E.D.Wis.1973); Mohr v. Jordan, 370 F.Supp. 1149 (D.Md.1974); White v. Gilligan, 351 F.Supp. 1012 (S.D.Ohio 1972); In re Young, 32 Cal.App.......
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Brinkman v. Schubert, 74-C-468
...of the presumption in the face of clear and unambiguous evidence which is a matter of record. For example, in Monsour v. Gray, 375 F.Supp. 786 (E.D.Wis.1973), the trial court transcript revealed that the judge had advised the petitioner that he had no authority to give credit for pretrial c......