State v. Aderhold, No. 79-214-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before DECKER, C. J., CANNON, P. J., and MOSER; MOSER
• Citation: 284 N.W.2d 108,91 Wis.2d 306
• Docket Number: No. 79-214-CR
• Decision Date: 26 September 1979
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Roger Wayne ADERHOLD, Defendant-Appellant.

Page 108

284 N.W.2d 108 91 Wis.2d 306 STATE of Wisconsin, Plaintiff-Respondent,
v.
Roger Wayne ADERHOLD, Defendant-Appellant. No. 79-214-CR. Court of Appeals of Wisconsin. Submitted on Briefs July 5, 1979.
Opinion Released July 13, 1979.
Opinion Filed July 13, 1979.
Review Denied Sept. 26, 1979.

[91 Wis.2d 307] Richard L. Cates, State Public Defender, and Bryan J. Borman, Asst. State Public Defender, submitted brief for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., submitted brief for plaintiff-respondent.

Before DECKER, C. J., CANNON, P. J., and MOSER, J.

MOSER, Judge.

The defendant, Aderhold, presents this court with an issue never yet directly decided by any Wisconsin appellate court: whether "street time" spent on probation must be deducted from a prison sentence to be served following a probation revocation hearing.

On May 5, 1977, the defendant pleaded guilty to operating an automobile without the owner's consent in violation of sec. 943.23, Stats. Pursuant to plea negotiations, the charge of operating an automobile without an operator's license in violation of sec. 343.05(1)(3) was dismissed. The defendant also pleaded guilty to a charge of misdemeanor theft in violation of sec. 943.20(1)(a) and (3)(a), which charge, as a result of plea negotiations, was reduced from felony theft, sec. 943.20(1)(a) and (3)(b). Pursuant to the Youthful Offender Act, sec. 54.04, the trial court placed the defendant on probation for two years for each count, to run concurrently.

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[91 Wis.2d 308] On December 21, 1978, the probation on both counts was revoked, the defendant having been found guilty on June 14, 1978, of a burglary occurring on July 16, 1977. For the burglary conviction the defendant was sentenced as a youthful offender to a three-year indeterminate term; for the operating auto conviction the defendant was sentenced to an indeterminate term of two years; and for the misdemeanor theft conviction, the defendant was sentenced to an indeterminate term of six months, concurrent with the two-year sentence.

The notices of appeal were filed on February 9, 1979, from the judgments of conviction and sentence to confinement entered on December 21, 1978. ¹

At the probation revocation proceeding, defense counsel advocated to the trial court the same position as the appellate counsel advocates to this court: to deny the defendant commitment credit ² for time spent successfully on probation is a denial of the equal protection clause of the United States Constitution. We are also asked to calculate the number of days the defendant should receive as credit. Because we hold that the defendant is not entitled to such credit as a matter of right, we do not address the second issue.

The defendant urges this court to apply the strict scrutiny test in this case, arguing that the conditional liberty involved is a fundamental interest. ³ Our supreme court has applied the rational relationship test in considering[91 Wis.2d 309] the treatment of two classes of parole violators, ⁴ in which the treatment affected the conditional liberty of the violators. We cannot perceive of any distinction between parolees and probationers, which would change this conditional liberty into a fundamental right for probationers but not for parolees.

The probationer has been found guilty of a crime, and was not incarcerated because the trial court, in its discretion, determined that the rehabilitation of the probationer, the goal of the penal system, would best be accomplished by the release of the probationer under supervision. ⁵

Additional support for the conclusion that the strict scrutiny test is not the appropriate test to be applied in this case is found in a decision of the United States Supreme Court. ⁶ The court upheld a New York statute which allowed "good time" credit for time spent in a state prison, but not for time spent in a county jail prior to conviction. The statute allowed up to a maximum of ten days' credit for each month spent in a state prison or penitentiary, based on "good conduct and efficient and willing performance of duties assigned." This, in turn, affected the date a prisoner was eligible for parole. In so doing, the court applied the rational relationship test:

The determination of an optimal time for parole eligibility elicited multiple legislative classifications and groupings, which the court below rightly concluded require only Some rational basis to sustain them. . . . We do not wish to inhibit state experimental classifications in a practical and troublesome area, but inquire only whether the challenged[91 Wis.2d 310] distinction Rationally furthers some legitimate, articulated state purpose. ⁷

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Several state and federal jurisdictions have directly addressed the issue before this court. The majority of these jurisdictions have applied the less stringent rational relationship test.

In People v. Gilmore, ⁸ the court set forth the "vital differences between the purposes and methods" of the implementation of parole and probation:

(1) When a person is eligible for either parole or probation;

(2) The enforcement procedures of parole and probation;

(3) The relationship of parole and probation to imprisonment;

(4) The agency deciding who should be granted parole or probation.

These factors were held to justify the different treatment of parolees and probationers in compliance with equal protection clauses of the state and federal constitutions. The similarities between parole and probation, recognized by the United States Supreme Court, ⁹ do not imply that parole and probation must necessarily be treated the same in all circumstances for equal protection purposes. ¹⁰

The court in Gilmore also rejected the defendant's contention that the correct test to be applied in determining whether the difference in treatment of jail credit for street time violates equal protection is the strict scrutiny [91 Wis.2d 311] test. The defendant argued that this test was mandated because the fundamental right of liberty was involved. In so rejecting the defendant's arguments, the court applied...