State v. Johnson

• Decision Date: 23 June 2009
• Docket Number: No. 2007AP1115-CR.,No. 2007AP1114-CR.,2007AP1114-CR.,2007AP1115-CR.
• Citation: 2009 WI 57,767 N.W.2d 207
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Elandis D. JOHNSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

767 N.W.2d 207

2009 WI 57

STATE of Wisconsin, Plaintiff-Respondent, v. Elandis D. JOHNSON, Defendant-Appellant-Petitioner.

No. 2007AP1114-CR.

No. 2007AP1115-CR.

Supreme Court of Wisconsin.

Argued September 12, 2008.

Decided June 23, 2009.

For the defendant-appellant-petitioner there were briefs by Meredith J. Ross and the Frank J. Remington Center, University of Wisconsin Law School and oral argument by Meredith J. Ross.

For the plaintiff-respondent the cause was argued by Pamela Magee, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

¶ 1 DAVID T. PROSSER, J

This is a review of a published decision of the court of appeals, State v. Johnson, 2008 WI App 34, 307 Wis.2d 735, 746 N.W.2d 581 [hereinafter Elandis Johnson].¹ The decision affirmed an order of the Milwaukee County Circuit Court, Timothy M. Witkowiak, Judge, denying Elandis D. Johnson's (Johnson) post-conviction motion for additional sentence credit.

¶ 2 This review requires the court to interpret Wis. Stat. § 973.155 (2007-08),² Wisconsin's sentence credit statute. The statute mandates that a convicted offender's sentence be credited with "all days spent in custody in connection with the course of conduct for which sentence was imposed." Wis. Stat. § 973.155(1)(a). The question presented is whether Wis. Stat. § 973.155 requires a court to apply the same sentence credit to each concurrent sentence given to an offender at the same sentencing hearing, regardless of whether the offender's days spent in presentence custody were "in connection with the course of conduct for which [each] sentence was imposed." See id.

¶ 3 We conclude that Wis. Stat. § 973.155 imposes no requirement that credit applied toward one sentence also be applied toward a second sentence if the basis for applying the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same time. The fact that sentences are concurrent and are imposed at the same time does not alter the statutory mandate that credit toward service of a sentence be based on custody that is "in connection with" the course of conduct giving rise to that sentence: i.e., custody factually connected with the course of conduct for which sentence was imposed.

¶ 4 Consequently, we affirm the decision of the court of appeals.

I. BACKGROUND AND PROCEDURAL HISTORY

¶ 5 The facts in this matter are complicated but undisputed. On August 10, 2004, Johnson was arrested by Milwaukee police for possessing approximately 42 grams of marijuana in 64 individually wrapped baggies. He was charged on August 12 with possession of marijuana (less than 200 grams) with intent to deliver³ (Case No.2004CF4297), and he was released from jail on August 13 after posting a $1,000 cash bond. Johnson pleaded guilty to this felony offense on November 9. His original bond was never revoked or amended. Thus, Johnson remained "free on bond" for this offense until he was sentenced on August 31, 2005.

¶ 6 On November 18, 2004, nine days after his guilty plea on the drug offense, Johnson was arrested again, this time for possessing more than 40 grams of marijuana in 67 individually wrapped baggies. He was charged in this incident with possession of marijuana (less than 200 grams) with intent to deliver⁴ (Case No.2004CF6378). He was thereafter released on a second $1,000 cash bond. Johnson waived his preliminary examination, and the State added a count of bail jumping⁵ when it filed the information. Johnson pleaded guilty to both of these new charges on February 2, 2005.⁶ There was no change in Johnson's second bond pending sentencing, so that he was "free on bond" for both sets of offenses until August 31, 2005.

¶ 7 On April 19, 2005, Johnson was arrested for possessing more than 16 grams of marijuana, some of which was packaged individually. This arrest resulted in a third drug charge—simple possession of marijuana (second offense)⁷—and eventually, a second bail jumping charge⁸ (Case No.2005CF2217). This time the court set bond at $15,000. Johnson was unable to post this bond, and he remained in custody in the Milwaukee County Jail. As a result, a May 9 sentencing hearing for the first two cases was rescheduled for August 31, 2005.

¶ 8 On May 27, 2005, Johnson's attorney submitted a bail motion to the circuit court, requesting that Johnson's $15,000 bond in the 2005 case be reduced to $5,000 in exchange for Johnson's agreement to enroll in the "In-House" monitoring program. The court granted the motion. In time, Johnson posted the $5,000 bond and was turned over to the monitoring program pending further proceedings.⁹

¶ 9 On July 31, 2005, there was a rotation of judges in the felony division of the Milwaukee County Circuit Court. When this happened, all three of Johnson's cases were transferred to Milwaukee County Circuit Judge William Sosnay. Judge Sosnay took Johnson's pleas in the third case on August 31. On that same day, in the same hearing, Judge Sosnay, with the benefit of a presentence investigation, imposed sentence for all five offenses in the three cases.

¶ 10 Judge Sosnay imposed the following sentences. In the first 2004 case (Case No.2004CF4297), Johnson was sentenced to one year of confinement and 18 months of extended supervision, with four days credited for his presentence confinement between August 10 and August 13, 2004.

¶ 11 In the second 2004 case (Case No.2004CF6378), Johnson was sentenced to 18 months of confinement, plus two years of extended supervision, for the possession charge; and one year of confinement, plus one year of extended supervision, for the bail jumping charge. These two sentences, which are not at issue in this appeal, were made concurrent with each other but consecutive to the sentences in the other two cases.

¶ 12 In the 2005 case (Case No.2005CF2217), Johnson was sentenced on two charges, possession of marijuana and bail jumping. Johnson was sentenced to one year of confinement and one year of extended supervision on each charge, with 45 days credited for his presentence confinement between April 19 and June 8, 2005. Both sentences were made concurrent with each other and concurrent with the sentence in the first 2004 case.

¶ 13 On March 24, 2007, Johnson submitted a pro se motion for sentence credit, arguing that the 45 days of presentence credit he received for the sentence in the 2005 case also should be credited toward the sentence in the first 2004 case.

¶ 14 Shortly thereafter, Johnson acquired an attorney who submitted a revised motion for sentence credit and a motion for an amended judgment of conviction. The revised motion argued that Johnson was entitled to 50 days of credit, rather than 45, for the sentence in the 2005 case and that those 50 days also should be credited toward the sentence in the first 2004 case.

¶ 15 Specifically, Johnson argued that State v. Ward, 153 Wis.2d 743, 452 N.W.2d 158 (Ct.App.1989), and State v. Yanick, 2007 WI App 30, 299 Wis.2d 456, 728 N.W.2d 365, direct that "`[w]hen concurrent sentences are imposed at the same time ... sentence credit is to be determined as a total number of days and is to be credited against each sentence imposed'" regardless of whether the sentences are "`in connection with' the same course of conduct." Ward, 153 Wis.2d at 746, 452 N.W.2d 158; see Yanick, 299 Wis.2d 456, ¶¶ 16-17, 728 N.W.2d 365. Johnson contended that, because the sentence in the first 2004 case and the sentences in the 2005 case were imposed at the same time and were made concurrent with each other, he was entitled to 50 days of sentence credit toward all three sentences.

¶ 16 On April 23, 2007, the circuit court¹⁰ granted Johnson's request to change the 45 days of credit for the sentences in the 2005 case to 50 days, but it denied his request to apply those 50 days of credit to the sentence in the first 2004 case. The circuit court explained its denial as follows:

As the court explained in its March 29, 2007 decision, the defendant was not in custody in connection with [the first 2004 case] for the period April 19, 2005 to June 8, 2005 because bail was posted in that case on August 13, 2004 and he was released from custody at that time.

A broad reading of the above-referenced jury instruction[, Wis JI—Criminal SM-34A (1995)¹¹,] might suggest that a defendant who is sentenced to concurrent prison terms is entitled to receive equal credit against each concurrent sentence regardless of the number of days he or she actually spent in custody in connection with each concurrent sentence. The court rejects such an interpretation of the Committee's comments because the Committee further observed that in circumstances such as this where the custodial period from multiple charges is not the same, different amounts of credit will be due.... This is exactly the kind of situation that is presented here. Defendant Johnson was in custody in connection with each of these cases for different custodial periods (i.e. 4 days in [the first 2004 case] and 50 days in [the 2005 case]). Consequently, he is only entitled to receive four days of credit in [the first 2004 case] and 50 days of credit in [the 2005 case], even though the sentences for these separate offenses were ordered concurrent.

¶ 17 Johnson appealed the circuit court's decision to the court of appeals. The court of appeals, building on the circuit court's analysis, denied Johnson's request to have the 50 days of credit from the sentence in the 2005 case applied to the sentence in the first 2004 case. Elandis Johnson, 307 Wis.2d 735, ¶ 9, 746 N.W.2d 581.

¶ 18 In its opinion, the court of appeals began its discussion of Wis. Stat. § 973.155(1)(a) by stating that "[t]here is nothing in the statute suggesting an exception to the `in connection with' requirement when credit is due against a concurrent sentence imposed at the same time." Id., ¶ 11. Ultimately, the court affirmed the circuit court's approach, asserting that the circuit...