State v. Johnson

• Decision Date: 24 January 2008
• Docket Number: No. 2007AP1114-CR.,No. 2007AP1115-CR.,2007AP1114-CR.,2007AP1115-CR.
• Citation: 2008 WI App 34,746 N.W.2d 581
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Elandis D. JOHNSON, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

746 N.W.2d 581

2008 WI App 34

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

No. 2007AP1114-CR.

No. 2007AP1115-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs December 7, 2007.

Opinion Filed January 24, 2008.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Meredith J. Ross of the University of Wisconsin Law School, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Pamela Magee, assistant attorney general, and J.B. Van Hollen, attorney general.

Before DYKMAN, VERGERONT and LUNDSTEN, JJ.

¶ 1 LUNDSTEN, J

This is a sentence credit case. At issue is whether the "in connection with" requirement in the sentence credit statute, Wis. Stat. § 973.155(1)(a) (2005-06),¹ applies individually to each concurrent sentence imposed at the same time. Johnson argues that, under State v. Ward, 153 Wis.2d 743, 452 N.W.2d 158 (Ct.App.1989), when concurrent sentences are imposed at the same time, credit due against any individual sentence must be awarded against all concurrent sentences. We disagree. We conclude that the "in connection with" requirement applies to each sentence individually, even when concurrent sentences are imposed at the same time. Accordingly, we affirm the circuit court's denial of sentence credit.

Background

¶ 2 In 2004, Johnson was arrested for a drug offense and entered a guilty plea (the "2004 case"). He posted bail and was released pending sentencing.

¶ 3 In 2005, while still awaiting sentencing, Johnson was arrested for a new drug offense (the "2005 case"). Following this arrest, Johnson remained "free" on bail in his 2004 case, but spent 50 days in custody before being released on bail in his 2005 case.

¶ 4 Johnson eventually pled guilty in his 2005 case, and a joint sentencing was held in his 2004 and 2005 cases. Johnson received one year of initial confinement followed by eighteen months of extended supervision in his 2004 case. He received a concurrent sentence of one year of initial confinement followed by one year of extended supervision in his 2005 case.

¶ 5 Johnson received credit against the sentence in his 2005 case for the 50 days he spent in custody following his 2005 arrest. He did not receive credit for those days against the sentence in his 2004 case.

¶ 6 After sentencing, Johnson filed a postconviction motion seeking credit for the 50 days in his 2004 case. The circuit court denied the request. The circuit court reasoned that the 50 days in custody were not "in connection with" the sentence in the 2004 case. Johnson appeals that decision.²

Discussion

¶ 7 The sentence credit statute requires an award of credit against each sentence imposed "for all days spent in custody in connection with the course of conduct" underlying the sentence. WIS. STAT. § 973.155(1)(a). The issue here is whether the "in connection with the course of conduct" requirement applies individually to each concurrent sentence imposed at the same time. For ease of discussion, we will refer to this requirement as the "in connection with" requirement.

¶ 8 Johnson was sentenced in his 2004 case and his 2005 case at the same sentencing hearing. Prior to the hearing, Johnson spent 50 days in custody "in connection with" the sentence in his 2005 case. These same 50 days in custody were not "in connection with" the sentence in his 2004 case. The circuit court sentenced Johnson to one year of initial confinement in each case, the sentences to run concurrently. Johnson received the 50 days as credit against the sentence in the 2005 case, but not against the sentence in the 2004 case.

¶ 9 Johnson argues that the circuit court erred by failing to award him 50 days of credit against his concurrent sentence in the 2004 case. According to Johnson, the sentence credit statute—as interpreted in Ward and in the Criminal Jury Instructions Committee's special materials on sentence credit—provides that custody due as credit against one concurrent sentence must be credited against all other concurrent sentences imposed at the same time, regardless whether the custody is "in connection with" all of the concurrent sentences. We do not agree. We conclude that neither Ward nor the special materials address this specific question. We further conclude that the plain language of the sentence credit statute authorizes sentence credit only when custody is "in connection with" the sentence imposed. This "in connection with" requirement applies to each sentence individually, even when concurrent sentences are imposed at the same time.

¶ 10 We begin our analysis with the statute. Application of the sentence credit statute to the undisputed facts in this case presents a question of law, which we review de novo. See State v. Tuescher, 226 Wis.2d 465, 468, 595 N.W.2d 443 (Ct.App. 1999).

A. The Statutory Language

¶ 11 The statutory language at issue here is the heart of the sentence credit statute: "A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed." Wis. Stat. § 973.155(1)(a). This language plainly authorizes sentence credit when two conditions are met: first, that the custody at issue was time "in custody"; second, that the custody was time spent "in connection with the course of conduct for which sentence was imposed.'" See State v. Johnson, 2007 WI 107, ¶ 31, 304 Wis.2d 318, 735 N.W.2d 505 (quoting § 973.155(1)(a)). There 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.

¶ 12 The circuit court's sentence credit decision tracks the statutory requirements. The court concluded that Johnson is not entitled to the 50 days of credit he seeks because those 50 days of custody were not "in connection with the course of conduct for which" the sentence was imposed in his 2004 case. We must affirm this plain language reading of the statute unless such application leads to absurd or unreasonable results. See Gasper v. Parbs, 2001 WI App 259, ¶ 8, 249 Wis.2d 106, 637 N.W.2d 399. Johnson argues that this reading is contrary to Ward and language in the special materials. In the remainder of this decision, we explain why Ward and the special materials do not address the issue presented and why the denial of credit here is not absurd or unreasonable.

B. The Ward Decision Is Not Controlling

¶ 13 According to Johnson, Ward contains a simple holding: time in custody due as credit against one sentence must be credited against all other concurrent sentences imposed at the same time, regardless whether the custody is "in connection with" all of the concurrent sentences. Johnson's reading of Ward, however, is based on the incorrect assumption that the custody time awarded as credit in Ward was not "in connection with" all of the concurrent sentences imposed.

¶ 14 In Ward, the circuit court imposed three concurrent sentences at the same time, but granted credit against only one of the sentences. We reversed, holding that Ward was entitled to credit against all three sentences. Ward, 153 Wis.2d at 745 747, 452 N.W.2d 158. We reasoned that applying credit to only one of the three concurrent sentences "defeats the concurrent nature of the sentence because the first term is reduced ..., while the remaining two terms stand at three full years," thereby denying the defendant the credit to which he was entitled. See id. at 745, 452 N.W.2d 158.

¶ 15 Johnson's contention that the Ward holding applies, even if the custody at issue is not "in connection with" each concurrent sentence, is based on his assumption that in Ward the custody time awarded as credit was in fact not "in connection with" all three sentences. Johnson acknowledges that the Ward decision does not say the custody was not "in connection with" all three sentences, but argues that it is "illogical" to assume otherwise. He reasons that "[i]f Ward's custody had in fact been `in connection' with all three of his sentences ..., then his sentence credit issue would have been controlled by [State v. Gilbert, 115 Wis.2d 371, 340 N.W.2d 511 (1983),] and ... [a published] opinion in Ward would have been unnecessary."

¶ 16 The question whether all three sentences in Ward were "in connection with" the custody at issue is easily answered by looking at the parties' briefs, which are available through the state law library.³ Those briefs reveal that the parties agreed that the custody at issue was "in connection with" all three sentences. Brief of Defendant-Appellant at 8, Brief of Plaintiff-Respondent at 7, State v. Ward, 153 Wis.2d 743, 452 N.W.2d 158, found in Appendices and Briefs, 153 Wis.2d 739-761, 451 N.W.2d 794, at tab 2 (Wis. State Law Library). Thus, in Ward, we were not faced, as here, with whether the sentence credit statute requires that custody time be awarded against a concurrent sentence even though that custody is not "in connection with" the sentence.

¶ 17 Johnson's reliance on the supreme court's decision in State v. Gilbert, 115 Wis.2d 371, 340 N.W.2d 511 (1983), as a basis for asserting that his reading of Ward is the only logical reading is also flawed. Johnson incorrectly asserts that in Gilbert the supreme court "ruled that if a defendant was convicted of multiple offenses and received concurrent sentences, even if the sentences were imposed at different times, then the defendant was entitled to credit on all the sentences as long as the presentence custody was `in connection with the course of conduct' underlying the sentences." That ruling does not appear in Gilbert. The only issue the Gilbert court addressed was "whether confinement in the county jail as a condition of probation, with or without work release privileges, is being in `custody' within the meaning of the [sentence] credit statute." Gilbert, 115 Wis.2d at 377...