State ex rel. Thorson v. Schwarz

Citation274 Wis.2d 1,2004 WI 96,681 NW 2d 914
Decision Date01 July 2004
Docket NumberNo. 02-3380.,02-3380.
PartiesState of Wisconsin ex rel. Michael J. Thorson, Petitioner-Appellant-Petitioner, v. David H. Schwarz, Administrator, Division of Hearing & Appeals, Respondent-Respondent.
CourtUnited States State Supreme Court of Wisconsin

For the petitioner-appellant-petitioner there were briefs and oral argument by Jefren E. Olsen, assistant state public defender.

For the respondent-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.


The petitioner, Michael J. Thorson, seeks review of an unpublished decision of the court of appeals affirming a circuit court order denying sentence credit.1 He argues that he is entitled to sentence credit for time spent at the Wisconsin Resource Center while awaiting evaluation and trial on a petition to commit him as a sexually violent person under Chapter 980 (1999-2000).2 Because we determine that Thorson's detention under Chapter 980 satisfies neither the "in custody" nor "in connection with" requirements of Wis. Stat. § 973.155, the sentence credit statute, we conclude that he is not entitled to receive the requested credit. Accordingly, we affirm the decision of the court of appeals.


¶2. On November 1, 1991, Thorson was convicted of attempted second-degree sexual assault and false imprisonment. He was sentenced to 13 years in prison, with a mandatory release date of April 4, 2000.

¶3. Shortly before his scheduled release, the State commenced an action to commit Thorson as a sexually violent person pursuant to Chapter 980. Thus, instead of being released from custody, Thorson was transferred to the Wisconsin Resource Center (WRC) for further evaluation. He remained there awaiting trial on the Chapter 980 petition.

¶4. On September 16, 2000, a jury determined that Thorson was not a proper candidate for a Chapter 980 commitment because his mental disorder did not make it substantially probable that he would commit future acts of sexual violence. On September 20, 2000, Thorson was released on parole after being detained at the WRC for 170 days.

¶5. While on parole, Thorson made substantial progress in his rehabilitation. In April 2002, however, the Department of Corrections began revocation of parole proceedings, alleging that he had unauthorized contact with a child.

¶6. At the revocation hearing, the administrative law judge found that Thorson had violated the rules of his supervision and revoked his parole. Accordingly, he ordered Thorson to be reincarcerated for a period of ten months.

¶7. After the revocation, Thorson requested that he be granted 170 days of credit toward his term of reincarceration for time spent at the WRC awaiting his Chapter 980 trial. The administrative law judge denied the request. In doing so, he explained that he was not aware of any law that allowed "custody credit"3 in a criminal case for detention in a civil commitment proceeding.

¶8. Thorson subsequently appealed the decision to the Division of Hearings and Appeals (DHA). The DHA administrator sustained the conclusion of the administrative law judge. He reasoned that the commitment proceeding was a separate legal matter and "[t]he fact that the court ordered [Thorson] confined pending the outcome of that proceeding [did] not make that custody part of this case or entitle him to sentence credit for that confinement."

¶9. On July 23, 2002, Thorson filed a petition for a writ of certiorari, challenging the denial of sentence credit for his time spent at the WRC. The circuit court concluded that "[t]he Chapter 980 proceeding was commenced against Mr. Thorson for a wide variety of reasons, only one of which was his conviction for second-degree sexual assault in 91CF68. The reincarceration. . . had its roots in the criminal conviction from 91CF68 and had nothing to do with the Chapter 980 proceeding." Accordingly, the court dismissed the writ on the ground that Thorson's Chapter 980 detention was not "in connection with the course of conduct for which the sentence was imposed."

¶10. The court of appeals affirmed the circuit court's order. State ex rel. Thorson v. Schwarz, No. 02-3380, unpublished slip op. (Wis. Ct. App. September 3, 2003). Like the circuit court, the court of appeals held that Thorson's detention "was not in connection with the course of conduct for which his sentences were imposed." Id., ¶3. It further concluded that Chapter 980 commitments are "a separate civil matter" and that the evaluation process at the WRC was to determine whether Thorson should be civilly committed.4 Id., ¶4.


¶11. The issue in this case is whether a petitioner, reincarcerated for a parole violation, is entitled to claim sentence credit for time spent in detention during the pendency of a Chapter 980 proceeding. Both the circuit court and court of appeals answered in the negative, affirming the decision of the DHA.

¶12. Our review of a parole revocation by certiorari is limited to four inquiries: (1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable, representing its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. Van Ermen v. DHSS, 84 Wis. 2d 57, 63, 267 N.W.2d 17 (1978).

¶13. In the present case, our inquiry is focused on whether the DHA acted according to law when it rejected Thorson's claim. Resolution of this inquiry involves the interpretation and application of Wis. Stat. § 973.155, the sentence credit statute. It presents a question of law subject to independent appellate review. See State v. Tuescher, 226 Wis. 2d 465, 468, 595 N.W.2d 443 (Ct. App. 1999) (citations omitted).


¶14. We begin our discussion with an examination of Wis. Stat. § 973.155. The statute governs sentence credit and provides in relevant part:

973.155 Sentence credit.
(1)(a) 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. As used in this subsection," actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:
1. While the offender is awaiting trial;
2. While the offender is being tried; and
3. While the offender is awaiting imposition of sentence after trial.

¶15. Under the language of the statute, two conditions must be met in order for a defendant to receive sentence credit: (1) the defendant must have been" in custody" for the period in question; and (2) the period "in custody" must have been "in connection with the course of conduct for which the sentence was imposed." Wis. Stat. § 973.155(1)(a). We examine each of these requirements in turn.

A. Custody

¶16. The term "custody" is not defined in Wis. Stat. § 973.155. To fill this void, Wisconsin courts have relied upon the definition set forth in Wis. Stat. § 946.42(1)(a), the escape statute. See e.g., State v. Magnuson, 2000 WI 19, ¶¶13-15, 233 Wis. 2d 40, 606 N.W.2d 536; State v. Gilbert, 115 Wis. 2d 371, 378-79, 340 N.W.2d 511 (1983); State v. Cobb, 135 Wis. 2d 181, 184-85, 400 N.W.2d 9 (Ct. App. 1986).

¶17. The definition of custody in Wis. Stat. § 946.42(1)(a) provides in relevant part:

946.42 Escape. (1) In this section:
(a) "Custody" includes without limitation actual custody of an institution . . . . It does not include the custody of a probationer, parolee or person on extended supervision by the department of corrections or a probation, extended supervision or parole officer or the custody of a person who has been released to aftercare supervision under ch. 938 unless the person is in actual custody or is subject to a confinement order under s. 973.09(4).

¶18. Although the above definition is the necessary starting point for determining "custody" for sentence credit purposes, it is by no means the only consideration. This court has made clear that offenders must also be subject to an escape charge in order to be in "custody" for purposes of sentence credit. Magnuson, 233 Wis. 2d 40, ¶¶1, 25, 31. 47.

¶19. In Magnuson, this court considered whether a person placed on in-home detention with electronic monitoring was in "custody" for sentence credit purposes. Id., ¶1. We determined that "an offender's status constitutes custody for sentence credit purposes when the offender is subject to an escape charge for leaving that status." Id. Applying this bright line rule, we concluded that Magnuson's conditions of release did not subject him to an escape charge and therefore did not render him in custody. Id., ¶48.

¶20. In the present case, both parties agree that Thorson's detention at the WRC satisfies the broad definition of custody under Wis. Stat. § 946.42. We too subscribe to this conclusion. While parolees are not normally considered to be in custody under the escape statute, Thorson was in actual custody at the WRC. This is supported by the fact that the Department of Health and Family Services (DHFS) is required to administer the WRC "as a correctional institution." Wis. Stat. § 46.056(1).

¶21. Where the parties disagree is whether Thorson was subject to an escape charge had he left the WRC without authorization. Thorson contends that absconding from the WRC would have subjected him to escape under Wis. Stat. § 946.42(3)(a) so as to entitle him to sentence credit under Magnuson. That statute specifies four situations in which the crime of escape can occur: (1) the defendant was under arrest for a crime; (2) the defendant was lawfully charged with a crime; (3) the defendant was lawfully convicted of a crime; or (4) the defendant was...

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