State v. Beiersdorf
| Decision Date | 04 February 1997 |
| Docket Number | Nos. 95-1234,95-1235-CR,s. 95-1234 |
| Citation | 561 N.W.2d 749,208 Wis.2d 492 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Arthur BEIERSDORF, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
For the defendant-appellant the cause was submitted on the briefs of Mark Lukoff, Assistant State Public Defender.
For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Attorney General, and James M. Freimuth, Assistant Attorney General.
Before FINE, SCHUDSON and CURLEY, JJ.
Arthur Beiersdorf appeals from the judgments of conviction for second-degree sexual assault of a child and bail jumping, and from the trial court's order denying his motion for postconviction relief. He argues that the trial court erred by not applying the forty-four days of sentence credit he received on the stayed sentence for bail jumping to the prison sentence he received for sexual assault. He also argues that the trial court erred in ordering him to pay restitution for genetic testing. We affirm.
On August 26, 1994, at his initial appearance on a charge of felony second-degree sexual assault of a child under age sixteen, Beiersdorf was released on a $10,000 personal recognizance bond. On September 20, 1994, Beiersdorf returned to court and pled guilty to the sexual assault charge. Sentencing was adjourned.
On October 20, 1994, Beiersdorf was charged with bail jumping and two counts of misdemeanor sexual intercourse with a child over age sixteen. The complaint alleged that while Beiersdorf was free on bond in the felony sexual assault case, he violated terms of his bond by having contact and sexual intercourse with the victim of that offense. Bail was set at $10,000 cash. Failing to post the cash bail, Beiersdorf remained in custody.
On December 2, 1994, pursuant to a plea agreement, Beiersdorf pled guilty to the bail jumping charge; the trial court granted the State's motion to dismiss the two misdemeanor sexual intercourse charges. For second-degree sexual assault, the trial court sentenced Beiersdorf to ten years in prison. For bail jumping, the trial court sentenced Beiersdorf to five years in prison but stayed the latter sentence and placed him on probation for five years, consecutive to the ten year sentence, to begin, as the trial court told Beiersdorf, On the bail jumping stayed sentence, the trial court awarded forty-four days credit for the time Beiersdorf had remained in custody between his bail jumping arrest and sentencing. The court also ordered that, "as a term and condition of probation," Beiersdorf pay $250 reimbursement for the cost of the genetic testing performed as a result of the original sexual assault charge.
Beiersdorf argues that he is entitled to forty-four days credit against his ten-year sentence for second-degree sexual assault of a child. The parties agree that our analysis must begin with § 973.155(1)(a), STATS., which provides:
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 waiting imposition of sentence after trial.
Denying Beiersdorf's postconviction motion, the trial court concluded that he was not entitled to forty-four days credit on the sexual assault offense because he had been released on bond on that charge and, therefore, was not "in custody in connection with" the sexual assault offense. We agree.
The application of § 973.155(1)(a), STATS., to undisputed facts presents a question of law this court reviews de novo. State v. Collett, 207 Wis.2d 321, 323, 558 N.W.2d 642, 643 (Ct.App.1996). For credit to be awarded, two requirements must be satisfied: (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." Section 973.155(1)(a). In this case, Beiersdorf unquestionably was "in custody" from October 19, 1994, when he was arrested for bail jumping, to December 2, 1994, when he was sentenced for bail jumping and second-degree sexual assault. The issue, therefore, is whether Beiersdorf's forty-four days of custody were "in connection with the course of conduct for which [his ten-year sexual assault] sentence was imposed."
Beiersdorf argues that "common sense requires" that he be awarded the credit against his sexual assault prison sentence. He contends that it is "absurd" that he "would have to violate the consecutive probation, have that probation revoked, and begin serving the imposed and stayed sentence before he would receive 44 days jail-time credit." We disagree. For any number of sound reasons, a sentencing court may decide to stay a sentence and order probation on one count consecutive to incarceration on another count. Beiersdorf offers no authority to suggest that when a sentencing court does so, it must shift credit due on the stayed sentence to the imposed sentence.
Beiersdorf asserts that State v. Boettcher, 144 Wis.2d 86, 423 N.W.2d 533 (1988), requires the credit he seeks. Again, we disagree. Boettcher addressed a different sentence-credit issue and, if anything, Boettcher actually supports the State's position. It examined whether "dual sentence credit" should be applied to two consecutive sentences--one stemming from a crime for which the defendant had been placed on probation, and the other stemming from a subsequent crime resulting in revocation of the prior probation. 1 Id. at 87, 423 N.W.2d at 534. It explained that "in connection with the course of conduct for which sentence was imposed" under § 973.155(1)(a), STATS., means the same thing as the corresponding language in 18 U.S.C. § 3568: " 'in connection with the offense or acts for which sentence was imposed.' " Id. at 93, 423 N.W.2d at 536. Denying dual credit, Boettcher thus clarified that § 973.155(1)(a) provides sentence credit only for the custody connected to the charges to which the custody was specifically linked.
Therefore, although § 973.155(1)(a), STATS., also refers to "confinement related to an offense for which the offender is ultimately sentenced," and although in rather obvious ways Beiersdorf's bail jumping was figuratively "related to" his second-degree sexual assault, his "custody" literally was not "confinement related to" the sexual assault for purposes of sentence credit under § 973.155(1)(a), STATS. Although a defendant may perceive that custody is "at least partly 'in connection with' " another crime, that does not mean that the custody, for credit purposes, is related to "the course of conduct for which sentence was imposed." See State v. Beets, 124 Wis.2d 372, 376, 369 N.W.2d 382, 384 (1985); see also State v. Abbott, 207 Wis.2d 621, 558 N.W.2d 927 (Ct.App.1996).
Accordingly, we conclude that because Beiersdorf posted a personal recognizance bond on the felony sexual assault charge and remained on that bond until his sentencing, and because he was in custody on cash bail only on the subsequent bail jumping and sexual intercourse charges, the forty-four days in custody, under § 973.155(1)(a), STATS., was "custody" only "in connection with the course of conduct for which sentence was imposed" and stayed on the bail jumping. 2
According to the criminal complaint charging Beiersdorf with second-degree sexual assault of a child, blood samples from Beiersdorf and his victim, along with a tissue sample from the fetus being carried by his victim, were sent for DNA testing to the Memorial Blood Center of Minneapolis. Testing established the overwhelming probability that Beiersdorf was the father of the fetus. At the conclusion of sentencing, the prosecutor asked, "Would the Court be willing to order reimbursement for the cost of the genetic testing that was done in this case?" The court responded, "He will be in prison awhile [sic] but, yes, as a term and condition of probation, I'll do that." Beiersdorf argues that the trial court had no authority to order him "to pay for genetic tests, either as a cost, restitution, or as a condition of probation."
Denying Beiersdorf's postconviction motion, the trial court explained:
The DNA surcharge 3 was not imposed as a "cost" under sec. 973.06, Wis.Stats.; it was imposed as restitution which is reasonably related to the rehabilitation of the defendant. Its imposition reflects a cost and encumbrance which the government has incurred as a direct result of the defendant's commission of a crime. Given the broad authority of the court to impose restitution as a reasonable condition of the defendant's sentence and probation/parole, the court declines to vacate its present order.
The State agrees with Beiersdorf that the cost of genetic testing is not assessable against him as "restitution" under § 973.20(1), STATS., 4 because neither the State nor the testing facility is a "victim" of the crime under that statute. State v. Evans, 181 Wis.2d 978, 983-84, 512 N.W.2d 259, 261 (Ct.App.1994). 5 The State contends, however, that the trial court did have authority to order Beiersdorf to pay for the DNA testing as a condition of probation under § 973.09(1)(a), STATS., 6 and as costs under § 973.06(1)(c), STATS. 7 We agree.
A. As a condition of probation under § 973.09(1)(a),...
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