State v. Harrison
| Citation | 942 N.W.2d 310,391 Wis.2d 161,2020 WI 35 |
| Decision Date | 17 April 2020 |
| Docket Number | Nos. 2017AP2440-CR & 2017AP2441-CR,s. 2017AP2440-CR & 2017AP2441-CR |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Richard H. HARRISON, Jr., Defendant-Respondent-Cross Petitioner. |
| Court | United States State Supreme Court of Wisconsin |
For the plaintiff-appellant-petitioner, there were briefs filed by Jennifer R. Remington, assistant attorney general and Joshua L. Kaul, attorney general. There was an oral argument by Jennifer R. Remington .
For the defendant-respondent-cross-petitioner, there was a brief filed by Jeremy A. Newman, assistant state public defender. There was an oral argument by Jeremy A. Newman .
ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN, JJ., joined. DALLET, J., filed a concurring opinion in which ANN WALSH BRADLEY, J. joined.
¶1 We review an unpublished decision of the court of appeals1 reversing an order of the circuit court2 that granted sentence credit to Richard H. Harrison, Jr. pursuant to Wis. Stat. § 973.155(1)(a) (2017–18)3 and remanded with directions to advance the commencement of concurrent terms of extended supervision for Harrison's 2007 and 2008 cases to the date they would have begun but for Harrison's confinement for unrelated convictions that later were set aside.
¶2 We agree with the court of appeals that Harrison is not entitled to sentence credit pursuant to Wis. Stat. § 973.155(1)(a). Harrison is not entitled sentence credit under § 973.155(1)(a) because the days he spent in custody for which he seeks sentence credit were not in connection with the courses of conduct for which those sentences were imposed. He also is not entitled to sentence credit pursuant to Wis. Stat. § 973.04 because sentences for the 2007 and 2008 crimes were not vacated and re-imposed for the same crimes and the requested credit did not arise from vacated sentences for those crimes. Furthermore, we conclude that the court of appeals erred by advancing the commencement of Harrison's terms of extended supervision for the 2007 and 2008 cases. Whether to employ advancement is a public policy decision that is better left to the legislature. Accordingly, we reverse the court of appeals decision in regard to advancement.
¶3 Harrison has four relevant criminal cases. We shall refer to the individual cases by the year they were charged: 2007, 2008, 2010 and 2011. Importantly, these cases involve unrelated conduct.
¶4 In March 2009, Harrison and Clark County reached a global plea agreement for his 2007 and 2008 cases. For the 2007 case, he pled no contest to theft-business setting. The circuit court withheld sentence and placed Harrison on probation for six years. For the 2008 case, he pled no contest to fraud/rendering income tax return. The circuit court again withheld sentence and placed Harrison on probation for three years. The terms of probation were to run concurrently.
¶5 Less than three years later, the Department of Corrections revoked Harrison's probation. In December 2011, the circuit court sentenced Harrison, in each case, to six years of imprisonment, consisting of three years of confinement and three years of extended supervision. The sentences were to run concurrently and sentence credit was awarded.
¶6 In July 2010, Harrison was charged with burglary of a building or dwelling, resisting or obstructing an officer and theft of movable property, all as a repeater. A jury found Harrison guilty on all three counts. In January 2012, the circuit court sentenced Harrison to a total of twenty years of imprisonment, consisting of thirteen years of confinement and seven years of extended supervision. Notably, his sentences were to run consecutively to each other and to all other sentences already imposed. Therefore, Harrison had to finish serving his terms of confinement for his 2007 and 2008 cases before the terms of confinement for the 2010 case commenced.4
¶7 The State concedes that Harrison's terms of confinement imposed for his 2007 and 2008 cases ended in February 2014. At that time, Harrison could have been released to extended supervision but for the sentences imposed for his 2010 case, as well as the 2011 case discussed below.
¶8 In January 2015, we set aside Harrison's convictions in the 2010 case because we concluded that his statutory right to judicial substitution had been violated.5 We remanded for a new trial but the case was dismissed on the prosecutor's motion.
¶9 In September 2011, Harrison was charged with repeated sexual assault of a child. A jury found Harrison guilty, and, in March 2013, the circuit court sentenced Harrison to forty years of imprisonment, consisting of thirty years of confinement and ten years of extended supervision. The sentence was to run consecutively to all other sentences already imposed.
¶10 Harrison petitioned the Western District of Wisconsin for a writ of habeas corpus, arguing his conviction must be set aside because he had been denied effective assistance of counsel in violation of his Sixth Amendment right. The district court granted his petition in October 2016.6 In January 2017, the circuit court vacated the conviction. At that point, the State had to release or retry Harrison.7
¶11 In January 2019, the State and Harrison reached a plea agreement under which Harrison pled no contest to causing mental harm to a child. In August 2019, the circuit court imposed a sentence of eight years imprisonment, consisting of six years of confinement and two years of extended supervision. The sentence was to run consecutively to all other sentences already imposed.
¶12 In August 2017, after the circuit court vacated his conviction in the 2011 case but before he was resentenced, Harrison moved for sentence credit pursuant to Wis. Stat. § 973.155(1)(a). Specifically, he argued that from February 2014, when he would have begun extended supervision on the sentences for the 2007 and 2008 cases but for confinement on the sentences for the 2010 and 2011 cases which later were set aside, to January 2017, when his sentence for repeated sexual assault of a child was vacated pursuant to the writ of habeas corpus, he was not confined under a valid sentence. He moved to credit this period (February 2014 to January 2017) against the time he was to serve on extended supervision for the 2007 and 2008 cases.
¶13 The circuit court granted Harrison's motion, explaining it would be "silly to view the incarceration as simply wasted, dead time." The circuit court viewed its decision as "fundamentally fair."
¶14 The court of appeals took a different approach but reached a similar result.
State v. Harrison, Nos. 2017AP2440-CR & 2017AP2441-CR, unpublished slip op., 2019 WL 1284825 (Wis. Ct. App. Mar. 21, 2019). It first concluded Harrison was not entitled sentence credit because the sentence credit statute, Wis. Stat. § 973.155(1)(a), does not authorize credit for time spent in custody for a course of conduct unrelated to the course of conduct for which the sentence was imposed. Id., ¶2. As the court of appeals noted, "the courses of conduct were different between the cases ...." Id. However, the court of appeals concluded the circuit court reached "the correct practical result." Id., ¶3.
¶15 To so conclude, the court of appeals adopted what it called the "advance-the-commencement-of-valid-sentences concept." Id. "Under this approach, invalid sentence time is ignored, which has the effect of advancing to an earlier point on the timeline the commencement of all valid sentences." Id. Applying that approach, the court of appeals reasoned, "Harrison's periods of extended supervision in the two cases in which the convictions were not vacated should be deemed to have begun as soon as Harrison finished serving the initial confinement portion of his sentences in his only valid cases: the two in which his convictions were not vacated." Id. The court of appeals, accordingly, reversed the circuit court order granting sentence credit but remanded with directions to advance the commencement of the terms of extended supervision for the 2007 and 2008 cases. Id., ¶4. Importantly, the court of appeals noted that Harrison had not been resentenced in the 2011 case. Id., ¶10 n.2.
¶16 The State petitioned for review, arguing the court of appeals effectively granted Harrison sentence credit even though it was not authorized by Wis. Stat. § 973.04. In other words, the State asserted that employing advancement contravened the provisions of § 973.04.
¶17 Harrison filed a cross-petition for review, arguing the circuit court's decision was correct: he could be granted sentence credit under Wis. Stat. § 973.155(1)(a). Harrison was concerned that were he not awarded sentence credit and his extended supervision was revoked, he could be "reconfined for all of the available time on the 2007 and 2008 sentences that Harrison was not ‘in custody in connection with’ those sentences." To explain further, he contended that if we were to imply that he was on extended supervision when he actually was confined, revocation would, arguably, permit the State to confine him for a longer period than if he received credit that was applied to extended supervision for his 2007 and 2008 cases. We granted both petitions before Harrison was resentenced in the 2011 case.
¶18 Following his resentencing in the 2011 case, Harrison moved us to summarily reverse the court of appeals and remand to the circuit court with directions to deny application of sentence credit to his extended supervision for his 2007 and 2008 cases. He conceded that he is not entitled sentence credit or advancement in those cases. Although the State maintained that Harrison was entitled to neither, it opposed his motion because the State asks us to reach the...
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