State v. Cobb, 86-0007-CR
| Decision Date | 05 November 1986 |
| Docket Number | No. 86-0007-CR,86-0007-CR |
| Citation | 135 Wis.2d 181,400 N.W.2d 9 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Alvis COBB, Jr., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Review Denied.
Donna L. Hintz, State Public Defender and Margaret A. Maroney, Asst. State Public Defenders, for defendant-appellant.
Bronson C. La Follette, Atty. Gen. and Mary Batt, Asst. Atty. Gen., for plaintiff-respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
The subject of this appeal is whether time spent in a drug treatment facility as a condition of probation should be credited to an individual upon revocation under the sentence credit statute. 1 We hold that because the defendant was not "in custody" while at the center, within the meaning of sec. 973.155(1)(a), Stats., the trial court did not err in denying sentencing credit.
Alvis Cobb, Jr., was found guilty of delivery of heroin based on his plea of no contest. He was sentenced to six years in prison; the sentence was stayed and Cobb was placed on probation for four years commencing when he concluded serving a prison term on an unrelated conviction. As one of the conditions of his probation, he was ordered to either spend one year in the county jail with work release or go to a drug abuse treatment center. Upon Cobb's release from prison, he elected to go to the center.
Cobb was admitted to the "Wisconsin Family" Program on June 30, 1980 and participated until discharged on November 1, 1980. The basis for discharge was that he had completed treatment. On April 6, 1984, Cobb's probation was revoked and he began serving the six-year term.
Cobb subsequently filed a motion seeking sentence credit for presentencing incarceration plus the 121 days spent at Wisconsin Family as a condition of probation. The trial court granted credit for the presentence incarceration but not for the days at Wisconsin Family. Cobb appeals.
Discussion of the issue must begin with State v. Gilbert, 115 Wis.2d 371, 340 N.W.2d 511 (1983). In that case, the supreme court held that time spent in the county jail as a condition of probation, with or without work privileges, should be credited to an individual upon revocation under the sentence credit statute. In so holding, the court appeared to approve the reasoning of the Criminal Jury Instruction Committee that jail credit should be granted.
The same committee also opined that time spent in a treatment facility as a condition of probation should not ordinarily be credited against the sentence. Since this was not at issue in Gilbert, the opinion did not touch upon this recommendation. It is the issue here.
We adopt the recommendation of the Criminal Jury Instruction Committee and incorporate its analysis into this opinion by specific reference. 2
Thus, we agree that time spent in a treatment facility is not to be credited unless it is shown that the defendant was in custody. We further agree with the committee that whether a person was in custody, or was "confined" or "locked in" as the committee puts it, can be determined by reference to Wisconsin's escape statute. Since both the escape statute and sec. 973.155(1)(a), Stats., concern the custody of a convicted person, they may be read in pari materia. State v. Clausen, 105 Wis.2d 231, 244, 313 N.W.2d 819, 825 (1982). Custody is defined, in pertinent part, in sec. 946.42(5)(b), Stats., as follows:
"Custody" includes without limitation actual custody of an institution or of a peace officer or institution guard .... 3
The supreme court has interpreted this statute to say that actual custody is a limitation of either imprisonment or physical detention. State v. Schaller, 70 Wis.2d 107, 111, 233 N.W.2d 416, 418 (1975).
Therefore, custody depends upon physical detention by an institution, institution guard or peace officer. The Criminal Jury Instruction Committee's analysis comports with this definition. 4
No showing having been made that the defendant was physically detained at an institution, the trial court did not err in denying sentencing credit 5 for time spent at a treatment center.
Order affirmed.
While I concur with the majority's conclusion that Cobb is not entitled to sentence credit for the time spent at "Wisconsin Family" as a condition of probation, I disagree with the majority's wholesale adoption of the Criminal Jury Instruction Committee's SM-34A recommendation insofar as it pertains to determining such sentencing credit. This determination, according to the majority and SM-34A, turns upon whether the defendant is "locked in at night." I do not believe that custody for purposes of sentence credit should hinge on how a non-penal institution, be it public or private, chooses to restrict its residents during the nighttime.
Following its adoption of the "locked in at night" test, SM-34A, in the very next paragraph, states that this determination squares with custody concepts for purposes of the escape statutes. I submit it does not. I question whether a probationer who departs a non-penal institution which locks its residents in at night commits an escape. Even the Jury Instruction Committee, in fashioning standard escape instructions for most scenarios, has not contemplated (at least as yet) an instruction for escape from a non-penal institutional setting. 1 Were the majority's adoption of SM-34A limited to custodial situations contemplated by the escape statute, I would be in full agreement with the majority opinion. However, SM-34A's linkage of custody to "locked up at night" considerations renders the Committee's analysis internally inconsistent. The majority opinion is similarly flawed.
1 We certified this case to the supreme court on July 23, 1986. Certification was denied on September 9, 1986.
2 Wis J I--Criminal SM-34A at 9-11 states:
IV. IMPOSING SENTENCE AFTER PROBATION HAS BEEN REVOKED IN A SENTENCE WITHHELD--PROBATION ORDERED CASE
A. Determining sentence credit
The basic procedure outlined above should have been followed when the original disposition was ordered in the sentence withheld--probation ordered case. If probation is revoked and an offender is returned to court for imposition of sentence, another sentence credit determination must be made. Three separate periods of time are relevant to the new sentence credit determination:
1. days in custody prior to original disposition--this finding should be found in the...
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