State v. Lamar
| Decision Date | 11 August 2009 |
| Docket Number | No. 2008AP2206-CR.,2008AP2206-CR. |
| Citation | 773 N.W.2d 446,2009 WI App 133 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Charles LAMAR, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL> |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, Attorney General, and Eileen W. Pray, Assistant Attorney General.
Before CURLEY, P.J., KESSLER and BRENNAN, JJ.
Charles Lamar appeals the judgment convicting him of aggravated battery and misdemeanor bail jumping, contrary to WIS. STAT. §§ 940.19(5) and 946.49(1)(a) (2005-06), and the postconviction order denying his request for additional sentence credit.1 This appeal follows Lamar's successful withdrawal of his guilty plea to the original charge of aggravated battery as a habitual offender. At the same time, Lamar also pled guilty to one count of misdemeanor bail jumping as a habitual offender. As the result of a plea negotiation, a second count of misdemeanor bail jumping as a habitual offender was dismissed. The misdemeanor bail jumping as a habitual offender charge to which he pled guilty was never challenged, and the sentence remained in effect. Lamar then entered into a second plea negotiation. He agreed to plead guilty to aggravated battery and a revived charge of misdemeanor bail jumping, and the State dismissed the habitual criminality penalty enhancers. The trial court assigned to hear the second sentencing proceeding ordered his sentences on the amended aggravated battery charge and the revived charge of misdemeanor bail jumping to be served concurrently to one another, but consecutively to the sentence given in the original misdemeanor bail jumping as a habitual offender charge.
¶ 2 Lamar contends that the trial court's refusal to credit his sentence for the time between when he was first sentenced on the original aggravated battery as a habitual offender charge, to the date he was released to extended supervision on the original misdemeanor bail jumping as a habitual offender charge, has resulted in both a violation of his constitutional right against double jeopardy and a violation of his statutory right pursuant to WIS. STAT. § 973.04. Because Lamar was serving a sentence for the original misdemeanor bail jumping as a habitual offender charge at the same time that he was serving the original sentence on the aggravated battery as a habitual offender, and the trial court made his new aggravated battery sentence consecutive to that sentence, he is not entitled to any additional sentencing credit. Consequently, we affirm.
¶ 3 According to the criminal complaint, Lamar was charged in March 2006 with one count of aggravated battery intending to and causing great bodily harm and two counts of misdemeanor bail jumping, all charged as a habitual offender. The charges emanated out of a severe beating that Lamar inflicted on his then live-in girlfriend, Patricia McGee, who was found to have two skull fractures and two facial fractures as a result of the beating. In August 2006, as the result of a plea negotiation, Lamar pled guilty to one count of aggravated battery and one count of misdemeanor bail jumping, both as a habitual offender. The second count of misdemeanor bail jumping as a habitual offender was dismissed. The trial court ordered a presentence investigation report, and on September 15, 2006, the trial court sentenced Lamar to twelve years of incarceration, to be followed by five years of extended supervision on the aggravated battery charge, and one year of initial confinement, to be followed by one year of extended supervision, on the bail jumping charge. The bail jumping sentence was to be served concurrently with the aggravated battery sentence.
¶ 4 In July 2007, Lamar filed a motion seeking to withdraw his plea to the aggravated battery charge only. The motion seeking to withdraw his plea claimed that he did not understand the penalties for aggravated battery as a habitual offender. During the plea hearing, the trial court had advised Lamar that the maximum penalty was nineteen years, when in fact the maximum penalty was twenty-one years. On August 29, 2007, the trial court granted his motion to withdraw his plea and also determined that, inasmuch as the pleas were entered pursuant to plea negotiations, his request to withdraw his plea to one charge relieved the State of the plea negotiations and the court then reinstated the second count of misdemeanor bail jumping as a habitual offender.
¶ 5 Several months later, Lamar entered a plea of guilty to the two charges after the State agreed to dismiss the habitual offender penalty enhancer on both charges. Pursuant to the parties' new negotiations, the trial judge recused himself from sentencing and the matter was transferred to a different trial court judge for sentencing. After the transfer on January 3, 2008, Lamar was sentenced to ten years of initial confinement, to be followed by five years of extended supervision on the aggravated battery charge, and nine months of incarceration on the revived misdemeanor bail jumping charge, to be served concurrently with each other, but consecutive to the original misdemeanor bail jumping as a habitual offender charge. Lamar was given 306 days of sentencing credit. This credit consisted of days spent incarcerated after the termination of his one-year period of initial confinement on the bail jumping as a habitual offender charge until the new sentencing hearing. Approximately six months later, Lamar filed a motion seeking sentencing credit for the time served on the previous sentence for aggravated battery as a habitual offender. The motion was denied and this appeal was filed.
¶ 6 Lamar argues that he is entitled to additional sentence credit from the time he began serving his sentence on the original aggravated battery as a habitual offender charge to the date that he completed the one-year initial confinement portion of his sentence on the misdemeanor bail jumping as a habitual offender charge, an additional 189 days. His contention is premised both on his claim that if he is not given additional sentence credit his constitutional right against double jeopardy will have been violated, and that WIS. STAT. § 973.04 mandates that he be given credit for this additional time. Lamar also contends that WIS. STAT. § 973.155(1)(a) is inapplicable to his situation. We disagree with all three propositions.
¶ 7 Two issues in this case involve the interpretation of the sentence credit statutes as applied to undisputed facts. Accordingly, the issues present a question of law, which this court reviews independently. See State v. Abbott, 207 Wis.2d 624, 628, 558 N.W.2d 927 (Ct.App.1996). To the extent that statutory interpretation raises a constitutional issue, this issue also presents a question of law that we review de novo. See State v. Anderson, 2006 WI 77, ¶ 37, 291 Wis.2d 673, 717 N.W.2d 74.
¶ 8 The answer to whether Lamar is entitled to additional sentence credit lies in the fact that his second sentence for the aggravated battery charge was imposed consecutively to the earlier bail jumping as a habitual offender charge. Had the trial court at the second sentencing for the charge of aggravated battery ordered that Lamar serve his sentence concurrently with the first charge of bail jumping as a habitual offender, we would agree with his contention that he is entitled to all the time he served on the first charge of aggravated battery as a habitual offender. However, the trial court ordered the sentence to be served consecutively to the initial charge of bail jumping as a habitual offender. As a consequence, we need to examine two statutes addressing sentence credit. The first statute is WIS. STAT. § 973.04, which reads: The second statute in play is WIS. STAT. § 973.155(1)(a), which reads:
Sentence credit. (1) (a) 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. As used in this subsection, "actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:
1. While the offender is awaiting trial;
2. While the offender is being tried; and
3. While the offender is awaiting imposition of sentence after trial.
¶ 9 We first observe that WIS. STAT. § 973.04 directs the Department of Corrections, not the trial court, to give credit for time served. We will assume, without deciding, that the statute applies to sentencing courts. If in fact it applies, it applies only if a defendant is serving one sentence and that particular sentence is vacated.2 Here, when Lamar was sentenced for the aggravated battery as a habitual offender charge, he was also sentenced for bail jumping as a habitual offender. Consequently, when Lamar's plea to the aggravated battery as a habitual offender charge was vacated, he was still serving a sentence handed down at the same time as his aggravated battery as a habitual offender sentence. At the resentencing, the trial court specifically stated that the aggravated battery sentence and the new misdemeanor bail jumping sentence were to be consecutive to the underlying bail jumping as a habitual offender sentence. Refusing to credit Lamar for the time he spent on the original charge of aggravated battery as a habitual criminal also comports...
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