State v. Lamar
| Decision Date | 29 June 2011 |
| Docket Number | No. 2008AP2206CR.,2008AP2206CR. |
| Citation | 2011 WI 50,334 Wis.2d 536,799 N.W.2d 758 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent,v.Charles LAMAR, Defendant–Appellant–Petitioner. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the defendant-appellant-petitioner there were briefs and oral argument filed by Donna Hintze, assistant state public defender.For the plaintiff-respondent the cause was argued by Eileen Pray, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.MICHAEL J. GABLEMAN, J.
¶ 1 This is a review of a published decision of the court of appeals, State v. Lamar, 321 Wis.2d 334, 773 N.W.2d 446 (Ct.App.2009). The court of appeals affirmed a decision and order of the Milwaukee County Circuit Court, Clare L. Fiorenza, Judge, denying Charles Lamar's (Lamar) post-conviction motion for additional sentence credit.1
¶ 2 Lamar originally pleaded guilty and was sentenced for aggravated battery and misdemeanor bail jumping, both as a habitual offender, for severely beating his girlfriend. Approximately one year later, Lamar filed a motion to withdraw his guilty plea on the aggravated battery as a habitual offender charge. The circuit court granted Lamar's motion and the sentence was vacated. Lamar subsequently pleaded guilty to aggravated battery and a second misdemeanor bail jumping charge.
¶ 3 Lamar contends that, pursuant to Wis. Stat. § 973.04 (2007–08) 2 , he is entitled to sentence credit for the period between the date he began serving his original aggravated battery as a habitual offender sentence and the date he completed the initial confinement portion of his misdemeanor bail jumping as a habitual offender sentence. Lamar further argues that the post-conviction decision and order of the circuit court denying him additional sentence credit violates his due process rights against double jeopardy.
¶ 4 We reject Lamar's interpretation of Wis. Stat. § 973.04 and conclude that, under State v. Boettcher, 144 Wis.2d 86, 423 N.W.2d 533 (1988), Lamar is not entitled to additional sentence credit. We hold that an offender is not entitled to additional sentence credit pursuant to § 973.04 when (1) the vacated sentence was originally imposed concurrent to a separate sentence, (2) the separate sentence is not vacated, (3) the vacated sentence is reimposed consecutively to the non-vacated sentence, and (4) the time that the defendant requested was served in satisfaction of the sentence that was not vacated. Additionally, we conclude that Lamar is not entitled to additional sentence credit by virtue of the constitutional protection against double jeopardy.
¶ 5 On March 23, 2006, Lamar was arrested and held in custody for severely beating his live-in girlfriend, Patricia McGee. Ms. McGee suffered two skull fractures and two facial fractures as a result of the beating. Lamar was charged as follows: Count I, aggravated battery as a habitual offender, in violation of Wis. Stat. § 940.19(5) (2005–06); Count II, misdemeanor bail jumping as a habitual offender, in violation of Wis. Stat. § 946.49(1)(a) (2005–06); and Count III, misdemeanor bail jumping as a habitual offender, also in violation of Wis. Stat. § 946.49(1)(a) (2005–06).
¶ 6 In August 2006, Lamar and the State entered into a plea agreement. Pursuant to the plea agreement, Lamar pleaded guilty to Count I, aggravated battery as a habitual offender, and Count II, misdemeanor bail jumping as a habitual offender. Also pursuant to the plea agreement, Count III, misdemeanor bail jumping as a habitual offender, was dismissed.
¶ 7 On September 15, 2006, the circuit court sentenced Lamar to a term of imprisonment of seventeen years on Count I, aggravated battery as a habitual offender, consisting of twelve years of initial confinement followed by five years of extended supervision. Lamar was also sentenced to a term of imprisonment of two years on Count II, misdemeanor bail jumping as a habitual offender, consisting of one year of initial confinement followed by one year of extended supervision. These two sentences were to be served concurrently to each other. The circuit court granted Lamar 177 days of sentence credit on both counts for time he spent in custody in connection with these charges from March 23, 2006 (the date of his arrest) to September 15, 2006 (the date of Lamar's sentencing for Count I, aggravated battery as a habitual offender, and Count II, misdemeanor bail jumping as a habitual offender).
¶ 8 On March 23, 2007, Lamar completed the initial confinement portion of his sentence on Count II, misdemeanor bail jumping as a habitual offender, and remained in custody on Count I, aggravated battery as a habitual offender.
¶ 9 On August 29, 2007, the trial court granted Lamar's motion to withdraw his guilty plea on Count I, aggravated battery as a habitual offender. Lamar's motion claimed he did not understand the penalties for aggravated battery as a habitual offender when he pled guilty to the charge. During the plea hearing, the circuit court had erroneously informed Lamar that the maximum penalty for aggravated battery as a habitual offender was nineteen years, when in fact the maximum penalty was twenty-one years.
¶ 10 After Lamar withdrew his guilty plea to Count I, aggravated battery as a habitual offender, the State was no longer bound by the plea agreement. Consequently, the circuit court reinstated Count III, the second count of misdemeanor bail jumping as a habitual offender.
¶ 11 Several months later, Lamar and the State entered into another plea agreement.3 Pursuant to this second plea agreement, Lamar pled guilty to aggravated battery (Amended Count I) and misdemeanor bail jumping (Amended Count III). Unlike Lamar's initial plea agreement, neither guilty plea under the second plea agreement included the habitual offender penalty enhancer. Further, under the terms of the second plea agreement, Judge Conen recused himself from sentencing and the matter was transferred by judicial assignment to a different circuit court judge, Judge Fiorenza, for sentencing.
¶ 12 On January 3, 2008, Judge Fiorenza sentenced Lamar on Amended Count I, aggravated battery, and Amended Count III, misdemeanor bail jumping. Judge Fiorenza sentenced Lamar to a term of imprisonment of fifteen years on Amended Count I, aggravated battery, consisting of ten years of initial confinement followed by five years of extended supervision. Lamar was also sentenced on Amended Count III, misdemeanor bail jumping, to nine months confinement. The sentences for Amended Count I, aggravated battery, and Amended Count III, misdemeanor bail jumping, were to be served concurrently to each other, but consecutively to any other sentence. This meant that the sentences for Amended Count I, aggravated battery, and Amended Count III, misdemeanor bail jumping, were to be served, together, consecutively to the sentence for Count II, misdemeanor bail jumping as a habitual offender.4 Judge Fiorenza granted Lamar 306 days of sentence credit. This sentence credit reflected the days spent in confinement between the time his initial confinement portion of his sentence for Count II, misdemeanor bail jumping as a habitual offender, ended on March 23, 2007, and before his January 3, 2008 sentences were imposed for Amended Count I, aggravated battery, and Amended Count III, misdemeanor bail jumping.5
¶ 13 Lamar petitioned the circuit court for an order granting him 189 days of additional sentence credit for the days he was in confinement between September 15, 2006 (the date he began serving his sentence on Count I, aggravated battery as a habitual offender, and Count II, misdemeanor bail jumping as a habitual offender) and March 23, 2007 (the date Lamar completed the initial confinement portion of his sentence on Count II, misdemeanor bail jumping as a habitual offender). The 189 days of additional sentence credit Lamar requested were the days during which he was serving time for Count I, aggravated battery as a habitual offender, and Count II, misdemeanor bail jumping as a habitual offender. Lamar based his request on Wis. Stat. § 973.04, which states: “When a sentence is vacated and a new sentence is imposed upon the defendant for the same crime, the department shall credit the defendant with confinement previously served.”
¶ 14 The circuit court denied Lamar's motion for additional sentence credit. Applying the holding of State v. Boettcher, 144 Wis.2d 86, 423 N.W.2d 533, the circuit court ruled that sentence credit should not be granted for two sentences being served consecutively to each other. The court reasoned that because Amended Count I, aggravated battery, was sentenced consecutively to Count II, misdemeanor bail jumping as a habitual offender, Lamar was not entitled to credit for both sentences. Further, the court held that Wis. Stat. § 973.04 does not “supplant or preempt this basic and long-standing rule.”
¶ 15 The court of appeals affirmed the circuit court's denial of additional sentence credit. Lamar, 321 Wis.2d 334, ¶ 20, 773 N.W.2d 446. First, the court of appeals concluded that Wis. Stat. § 973.04 applies only to sentencing in cases where “a defendant is serving one sentence and that particular sentence is vacated.” Id., ¶ 9. The court looked at the history of the statute, finding it was enacted in response to State ex rel. Drankovich v. Murphy, 248 Wis. 433, 22 N.W.2d 540 (1946), where this court held that if the petitioner was resentenced on the conviction he was challenging, he would lose sentence credit for all the years he had already spent in prison serving that sentence. Lamar, 321 Wis.2d 334, ¶ 9 n. 2, 773 N.W.2d 446.
¶ 16 The court of appeals explained that the days Lamar was seeking additional sentence credit for—against the sentence imposed on Count I, aggravated battery as a habitual offender—were the same days he was serving an uncontested sentence on Count II, misdemeanor bail...
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