State v. Friedlander

• Decision Date: 12 March 2019
• Docket Number: No. 2017AP1337-CR,2017AP1337-CR
• Citation: 2019 WI 22,385 Wis.2d 633,923 N.W.2d 849
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Zachary S. FRIEDLANDER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

385 Wis.2d 633

923 N.W.2d 849

2019 WI 22

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.Zachary S. FRIEDLANDER, Defendant-Appellant.

No. 2017AP1337-CR

Supreme Court of Wisconsin.

Oral Argument: December 11, 2018

Opinion Filed: March 12, 2019

For the plaintiff-respondent-petitioner, there were briefs filed by Jacob J. Wittwer, assistant attorney general, with whom on the brief is Brad D. Schimel, attorney general. There was an oral argument by Jacob J. Wittwer.

For the defendant-appellant, there was a brief filed by Mark R. Thompson, assistant state public defender, with whom on the brief is Jeremy A. Newman, assistant state public defender. There was an oral argument by Mark R. Thompson.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of an unpublished, per curiam decision of the court of appeals, State v. Zachary S. Friedlander, No. 2017AP1337-CR, unpublished slip op., 2018 WL 1779384 (Wis. Ct. App. Apr. 12, 2018) (per curiam), reversing the Jefferson County circuit court's order. The circuit court order denied Zachary S. Friedlander ("Friedlander") sentence credit for time that he spent at liberty after being mistakenly released from prison without being transferred, pursuant to a detainer, to serve remaining conditional jail time.¹ The court of appeals remanded this case to the circuit court with directions to amend Friedlander's judgment of conviction to reflect the sentence credit that Friedlander requested. We reverse the court of appeals.

¶2 This court is presented with two issues. First, we must determine the meaning of "in custody" under Wis. Stat. § 973.155 (2015–16).² In doing so, we consider whether the court of appeals' decisions in State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), and State v. Dentici, 2002 WI App 77, 251 Wis. 2d 436, 643 N.W.2d 180, are in harmony with this court's decision in State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536. We conclude that for the purpose of receiving sentence credit under § 973.155, a defendant is "in custody" whenever the defendant is subject to an escape charge under Wis. Stat. § 946.42, or another statute which expressly provides for an escape charge, as this court held in Magnuson. In doing so, we overrule the court of appeals' decisions in Riske and Dentici.

¶3 Second, we must determine whether Friedlander is entitled to sentence credit for time he spent at liberty after being mistakenly released from prison without being transferred to serve his remaining conditional jail time. We conclude that Friedlander is not entitled to sentence credit because Friedlander, who was at liberty, could not have been subject to conviction for escape under Wis. Stat. § 946.42. Thus, we reverse the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 On April 15, 2016, Friedlander pled no contest to one count of felony bail jumping according to the terms of a plea agreement. According to the plea agreement, the parties jointly recommended a withheld sentence, instead placing him on probation for three years, with Friedlander serving eight months' jail time as a condition of his probation, to run concurrent with Friedlander's then-existing prison sentence.³ Consequently, most of the eight months of conditional time would be served while he was in prison. However, at the time of sentencing, a detainer⁴ was placed on Friedlander so that if released from prison, he would be transferred to jail to serve the remainder of his conditional time.

¶5 The same day that Friedlander pled no contest, the circuit court adopted the parties' joint recommendation and ordered that the conditional jail time would start immediately and run concurrently with the prison sentence Friedlander was already serving for the unrelated offense. The circuit court specified on the record that once Friedlander's prison sentence had been completed, he would still be required to serve the remainder of his conditional jail time. Additionally, the circuit court noted that because the jail time was a condition of probation, it was not a sentence. As a result, the circuit court stated that there was a question as to where the Department of Corrections ("DOC") would have Friedlander serve the remainder of his conditional jail time.

¶6 On September 27, 2016, Friedlander finished serving his prison sentence on the unrelated drug offense but still had 75 days of his conditional time to serve on the offense now before this court. However, instead of being transported according to the detainer to serve his remaining conditional time in jail, he was mistakenly released by the authorities from the Oshkosh Correctional Institution. Officials at the Oshkosh Correctional Institution failed to notify the Jefferson County jail of Friedlander's release and did not arrange to transfer Friedlander to the Jefferson County jail.

¶7 Friedlander met with his probation agent immediately after being released. The probation agent did not tell Friedlander that he needed to report to jail. Friedlander met with his probation agent again and was not told anything about reporting to jail. Friedlander's probation agent did not contact the circuit court to request clarification regarding his conditional jail time.

¶8 On November 11, 2016, the Jefferson County sheriff's office learned from the county's child support agency that Friedlander had been released from prison. That same day the sheriff's office contacted Friedlander's probation agent. Friedlander's probation agent then spoke with Friedlander, telling him to contact Captain Duane Scott ("Captain Scott") in the sheriff's office. Friedlander did so and reported to Captain Scott that a social worker at the Oshkosh Correctional Institution had told him his conditional jail time was completed prior to his release from prison. Captain Scott then contacted a DOC staff member who said that Friedlander's probation agent should have taken him to the Jefferson County jail on September 27, 2016. On November 23, 2016, Captain Scott wrote the circuit court summarizing these recent events and asking the circuit court whether Friedlander should report to serve his conditional time and, if so, what should be done regarding the days he was not in jail.

¶9 On December 1, 2016, the circuit court held a hearing to determine how to proceed regarding Friedlander's unserved portion of his conditional jail time. The circuit court found that Friedlander had served 165 days of the eight months, or 240 days, of conditional jail time. The circuit court determined that Friedlander had 75 days of conditional jail time remaining that he needed to serve. The circuit court then considered whether Friedlander was entitled to sentence credit for the 65 days that elapsed between Friedlander's release on September 27, 2016, and the date of the hearing. If granted sentence credit for all 65 days between September 27, 2016, and December 1, 2016, Friedlander would have only 10 days of conditional jail time remaining under the terms of his probation.

¶10 Friedlander argued that he should be entitled to sentence credit for the 65 days he was not in jail following his release from the Oshkosh Correctional Institution. Citing Riske and Dentici, Friedlander claimed that he should receive a 65-day sentence credit because he was at liberty through no fault of his own, leaving 10 days remaining on Friedlander's conditional jail term. The State made no argument regarding Friedlander's claim for a 65-day sentence credit.

¶11 After hearing testimony from a deputy at the Jefferson County jail and Friedlander, the circuit court concluded that Friedlander was not entitled to a 65-day sentence credit for the time he was not in jail following his release from prison on September 27, 2016. The circuit court distinguished Riske and Dentici, stating that in those cases the defendants reported to jail and were turned away due to overcrowding. The circuit court concluded that Friedlander should have reported to jail like the defendants in Riske and Dentici, or at least sought clarification from the circuit court. Since Friedlander did neither the circuit court concluded that under Riske and Dentici Friedlander was not entitled to sentence credit for any of the time he was not in jail following his release from prison. The circuit court did not reference Magnuson in its decision.

¶12 As a result, the circuit court ordered Friedlander to begin serving the remainder of his conditional jail time. On December 9, 2016, Friedlander filed a motion for stay of his confinement pending appellate review of the circuit court's sentence credit determination. On December 12, 2016, the circuit court denied Friedlander's motion to stay. Friedlander then filed a petition for leave to appeal, which the court of appeals denied on January 10, 2017.

¶13 On July 6, 2017, Friedlander filed a notice of appeal. Though he conceded that defendants normally must be "in custody" to receive sentence credit under Wis. Stat. § 973.155, he argued that under Riske and Dentici, time spent at liberty satisfies the "in custody" requirement because Friedlander was released from custody due to an administrative error and thus through no fault of his own. The State argued that Friedlander was not "in custody" under § 973.155 and pursuant to this court's decision in Magnuson. The State further asserted that Riske and Dentici did not apply.

Alternatively, the State argued that Friedlander was not, in fact, at liberty through no fault of his own, as Friedlander knew he had time to serve but did not report to jail nor seek clarification regarding his conditional jail time.

¶14 On April 12, 2018, the court of appeals issued an unpublished, per curiam opinion. Friedlander, No. 2017AP1337-CR. The court of appeals agreed with Friedlander and reversed the circuit court, remanding the matter with directions to amend Friedlander's judgment of conviction to reflect an additional 65 days of sentence credit in the event Friedlander's probation was revoked...