State v. Binder, s. 89-1541-C

Decision Date07 June 1990
Docket Number89-1542-CR,Nos. 89-1541-C,s. 89-1541-C
Citation157 Wis.2d 262,459 N.W.2d 259
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Gene W. BINDER, Defendant-Appellant.
CourtWisconsin Court of Appeals

Appeal from a judgment and an order of the Circuit Court for Dodge County: Daniel W. Klossner, Judge.

Circuit Court, Dodge County.

AFFIRMED IN PART, REVERSED IN PART AND CAUSE REMANDED.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Gene Binder appeals from a judgment convicting him of two counts of reckless homicide and disorderly conduct and from an order denying his postconviction motions. He raises three issues: (1) whether the trial court erred in calculating the credit for presentence incarceration to which he is properly entitled; (2) whether the court improperly rejected certain defense testimony on hearsay grounds; and (3) whether we should order a new trial in the interest of justice. We reverse on the sentence-credit issue and remand with directions. In all other respects we affirm the judgment and order.

The facts are not in dispute and will be discussed under the headings that follow.

I. CREDIT FOR TIME SERVED

On June 17, 1986, a complaint was issued in Dodge County charging Binder with two counts of reckless homicide and one count of disorderly conduct. When he failed to appear for his preliminary hearing on August 14, 1986, a warrant was issued for his arrest. He was arrested and, after a preliminary hearing on August 21, he was bound over for arraignment and trial on the homicide and disorderly conduct charges. He remained in jail.

On August 22, 1986, an information was filed charging him with homicide as alleged in the complaint. On August 25, he was also charged with felony bail jumping as a result of his failure to appear at the preliminary hearing.

On September 30, 1986, Binder was arraigned on the homicide charges and entered pleas of not guilty.

Binder pled no contest to the bail jumping charge and was sentenced to twelve months in the county jail. He remained in jail throughout the remainder of 1986 and into 1987.

Binder was tried on the homicide and disorderly conduct charges in December, 1987. He was found guilty by the jury and, on February 23, 1988, was sentenced to two consecutive seven-year prison terms on the homicide charges and to ninety days for disorderly conduct.

As the law requires, the trial court credited Binder's sentences with the time he had spent in jail awaiting trial and sentencing on the various charges. The number of days credited is immaterial, for Binder's challenge is only to the court's denial of his request for an additional ninety-one days' credit because of the "good time" earned on his county-jail sentence for bail jumping. The court denied the request for additional credit, reasoning that, if allowed, it would constitute "double credit" contrary to the supreme court's holding in State v. Boettcher, 144 Wis.2d 86, 423 N.W.2d 533 (1988). 1

Section 53.43, Stats., provides that jail inmates "shall be given credit for time served, prior to sentencing ... including good time...." Under the statute, good time credit is calculated "in the amount of one-fourth of his or her term...."

Thus, if Binder is correct--if he was entitled to the full amount of good time credit allowed by sec. 53.43, Stats., his 365-day bail-jumping sentence would have been reduced by one-fourth, or ninety-one days, ending on August 18, 1987. And if that were the case, he would have been incarcerated from that point on solely on the homicide and disorderly conduct charges, and Boettcher 's "dual credit" rule would not bar his claim for the additional ninety-one-day credit against these latter charges.

We conclude that the trial court erred when it denied Binder's good-time credit motion. This does not mean, however, that we may ourselves order the full ninety-one-day credit.

In arguing that we may do so, Binder proceeds on an erroneous assumption. By asking us to order the good time credits, he assumes that he is automatically entitled to them. He may be entitled to them in the end, but the credits are not automatic. Section 53.43, Stats., specifically provides that an inmate is "eligible to earn good time ... for good behavior." (Emphasis added.) In addition, the statute provides that "[a]n inmate who violates any law or [jail] regulation ... or neglects or refuses to perform any duty lawfully required of him or her, may be deprived by the sheriff of good time under this section...."

Because the appeal record is silent on the point, we cannot determine whether the Dodge County Sheriff ever directed that any of Binder's good time be denied or forfeited under 53.43, Stats., while he was serving the bail-jumping sentence. We therefore remand to allow the trial court to make the appropriate finding. If the trial court finds that jail and/or court records do not indicate any denial or forfeiture of good time during the initial 274 days of that sentence, the court will be directed to grant his motion for the additional ninety-one days' credit on the homicide and disorderly conduct sentences. If the records show any good-time denials or forfeitures during that period, the ninety-one-day credit shall be reduced accordingly.

II. THE HEARSAY RULING

Binder's homicide and disorderly conduct charges stemmed from an automobile accident in which two passengers in his car received fatal injuries. After the accident, tests showed that alcohol levels in Binder's blood were nearly two to three times the legal level for intoxication.

Prior to trial, the district attorney advised the court that he understood the defense planned to call one or more witnesses to testify that Binder had told them he was not driving the car at the time of the accident. Specifically, the prosecutor stated that Binder intended to call an ambulance attendant to testify that, while transporting Binder to the hospital, he (the attendant) asked him whether he was driving the car, and he responded that he was not. Maintaining that the attendant's testimony would be hearsay, the prosecutor asked that it be excluded.

Defense counsel argued that the statement was admissible as either "an excited utterance or a response to a recent event." The district attorney argued against the proposition and the court, without offering any explanation of the ruling, granted the motion to exclude the testimony.

On postconviction motions, Binder renewed his objection to the testimony. Concentrating his argument, as he has on this appeal, on the excited utterance exception, he contended that even though some time had lapsed between the accident and the purported statement to the ambulance attendant, he was still under the "stress" of the event and thus the exception applied.

The court denied the motion, this time explaining its reasoning:

[An] excited utterance [is] a statement relating to a startling event or condition made while the declarant was under the stress of excitement cause[d] by the event or condition.

Now, I know where the argument lies here. The argument lies that he's still under the stress of excitement caused by the event or condition. This particular statement was not made within five minutes of this accident [as Binder had claimed in the pretrial motion hearing] and there's no way it could have been.

The court then discussed the passage of time between the accident and the arrival of the ambulance crew on the scene and their eventual contact with Binder, and concluded:

The point is ... that it wasn't an excited utterance. He was not excited. Was he under the stress of the event? Well, I suppose you could argue that, yes, he was on his way to the hospital in an ambulance. But I don't think that ... falls under the exception. It does not give us substantial indicia of trustworthiness. It's not--it's not there. It's not close enough in time.

Admission or rejection of evidence such as that at issue here is committed to the sound discretion of the trial court. Muller v. State, 94 Wis.2d 450, 465, 289 N.W.2d 570, 578 (1980). But the exercise of discretion "is not the equivalent of unfettered decision-making." Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981). One of the most important and essential elements of a court's exercise of discretionary authority is an explanation of the reasoning underlying the decision. The explanation must be adequate to show that the decision was "the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable [result]." Hartung, 102 Wis.2d at 66, 306 N.W.2d at 20.

When a court rules without providing any such explanation, it fails to exercise discretion; and that in itself is an abuse of the court's discretionary powers. Argonaut Ins. v. LIRC, 132 Wis.2d 385, 391-92, 392 N.W.2d 837, 839-40 (Ct.App.1986). In criminal cases, however, the supreme court has held that "where the trial court fails to set forth its reasoning in exercising its discretion to admit evidence, the appellate court should independently review the record to determine whether it provides a basis for the trial court's exercise of discretion." State v. Pharr, 115 Wis.2d 334, 343, 340 N.W.2d 498, 502 (1983). We are thus compelled to do so here.

We note first that Binder's position was fully argued at the pretrial motion hearing, and we may consider such arguments and statements of counsel--and the possibility that the court acquiesced in them--in our consideration of the issue. See Hagenkord v. State, 100 Wis.2d 452, 464, 302 N.W.2d 421, 428 (1981) ("While the trial court did not ... articulate a rationale for the [ruling], it acquiesced in the explanation of the prosecutor ... [and the]...

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