State v. Liedke

• Court: Wisconsin Court of Appeals
• Writing for the Court: REILLY, J.
• Citation: State v. Liedke, 970 N.W.2d 571(Table), 2022 WI App 7(Table) (Wis. App. 2021)
• Decision Date: 29 December 2021
• Docket Number: Appeal No. 2020AP33-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Tanya M. LIEDKE, Defendant-Appellant.

970 N.W.2d 571 (Table)

2022 WI App 7

STATE of Wisconsin, Plaintiff-Respondent,

v.Tanya M. LIEDKE, Defendant-Appellant.

Appeal No. 2020AP33-CR

Court of Appeals of Wisconsin.

December 29, 2021

REILLY, J.

¶1 Tanya M. Liedke appeals from an order denying her motion for correction of sentence credit. She argues that she is entitled to additional sentence credit based on an erroneous calculation. Liedke further claims entitlement to sentence credit for the time spent on GPS monitoring. She argues that our supreme court's interpretation of the statutory term "custody" in State v. Magnuson , 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, violates her right to equal protection. We reject Liedke's equal protection argument and agree with the circuit court that she is not entitled to sentence credit for the time she spent on a GPS monitor. We reverse on the amount of sentence credit, as the parties agree that Liedke is entitled to additional credit but dispute what the amount is. As the record before us does not allow us to make that calculation, we remand for the court to determine the correct amount of sentence credit.

BACKGROUND

¶2 In 2015, Liedke was charged in a sixteen-count complaint with burglary, forgery, attempted forgery, identity theft, and bail jumping, based on her act of breaking into her landlord's home, stealing pills and a check, and then attempting to cash the check. She pled no contest to five of the counts, all as a repeater, and the remaining counts were dismissed and read in.¹ On Counts 1, 2, and 3, the court imposed and stayed a five-year sentence on each count (two and one-half years’ initial confinement and two and one-half years’ extended supervision) to be served consecutively to each other and any other sentence, placed Liedke on probation for four years, and awarded 164 days of sentence credit. On Counts 4 and 5, the court withheld sentence, placed Liedke on probation for four years, and likewise granted 164 days of sentence credit in the event her probation was revoked. Liedke was ordered to participate in drug treatment court as a condition of her probation, and the GPS bracelet was a condition of the drug treatment court.

¶3 Liedke's probation did not go well, and she was in and out of jail numerous times for violating conditions of her probation. On May 4, 2018, Liedke's probation was revoked, and she began serving the imposed sentence on Counts 1-3. On Counts 4 and 5, Liedke was returned to the sentencing court for sentencing on her withheld sentence, and the court imposed a four-year term of imprisonment on each count—two years’ initial confinement and two years’ extended supervision—concurrent to each other and any other sentence. The court awarded 421 days of sentence credit.

¶4 In November 2018, by letter to the circuit court, Liedke sought credit of 421 days on the sentence she was serving for Counts 1-3. In other words, she requested credit equal to the credit received for Counts 4 and 5.² The court denied her request, explaining that "[c]redit on JOC [(judgment of conviction)] is correct. Further concerns need to be addressed by [the Department of Corrections (DOC)]."

¶5 Liedke sought clarification or modification of her sentence credit from the circuit court four more times. She sent two letters to the court on December 2 and 20, 2018. Again, the court responded: "JOC is attached. As stated previously you received the correct credit. Per JOC that's 421 days." Liedke then sought credit modification by motion. She filed the first motion on January 9, 2019, pro se, stating that she "received 398 jail credit days on counts 1-3, [and] on counts 4-5 [she] received 421" and seeking additional credit for the days she spent in the Fond du Lac Drug Court program. The court denied her motion, stating, "No new factor [and] all credit concerns were previously addressed."

¶6 The second motion was made on December 18, 2019, with counsel, seeking sentence correction from 421 to 435 days. Liedke also sought credit on equal protection grounds for 147 days that she wore a GPS bracelet. Liedke asked that both judgments of conviction be amended. The court again denied her motion, "find[ing] that a defendant is not entitled to sentence credit when placed on a GPS bracelet while on probation because they are not in custody" and that "the court does not recalculate sentence credit and amend a judgment of conviction following a revocation of probation on an imposed and stayed sentence to reflect additional credit resulting from the revocation as that is the responsibility of DOC." Liedke appeals.

DISCUSSION

¶7 On appeal, Liedke argues that she is entitled to a total of 582 days of credit, which includes 435 days of credit—rather than the awarded 421 days—as well as 147 days of credit for time wearing a GPS bracelet. The State argues that Liedke is not entitled to the 147 days for wearing a GPS bracelet, as that question was answered in Magnuson , 233 Wis. 2d 40, ¶25. As to whether the amount of credit was properly calculated at the time of sentencing on Counts 4 and 5, the State agrees that Liedke was entitled to some additional sentence credit but does not agree with Liedke's 435-day calculation. The State also makes a procedural argument that we should dismiss this appeal on the ground that under WIS. STAT. § 973.155(5) (2019-20),³ Liedke was required to petition DOC prior to seeking credit correction from the circuit court.

GPS Monitoring and Equal Protection

¶8 Liedke is not entitled to sentence credit for the 147 days she was under GPS monitoring. In Magnuson , our supreme court engaged in statutory interpretation to address and then apply the "definition of custody for purposes of sentence credit under WIS. STAT. § 973.155." Magnuson , 233 Wis. 2d 40, ¶¶11-13 ("Statutory interpretation and the application of a statute to particular facts present questions of law that we review independently of the determinations rendered by the circuit court and the court of appeals."). The court's definition of "custody" became a bright-line "rule" under § 973.155(1)(a), when the court rejected the previous case-by-case determination of custody. Magnuson , 233 Wis. 2d 40, ¶¶18, 22. According to the court, "an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status." Id. , ¶¶25, 31, 47. We are bound by the definition of "custody" set forth in the sentence credit statute, in what has become known as the Magnuson "rule."⁴ See Cook v. Cook , 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Liedke was not subject to an escape charge while under GPS monitoring and, therefore, is not entitled to sentence credit.

¶9 Our analysis could end there, but Liedke frames her challenge in constitutional terms, explaining that "[t]he Magnuson court wasn't asked to consider, and did not address, the equal protection implications of its custody test. This court should do so here." According to Liedke, "Magnuson results in disparate treatment of similarly situated groups," composed of probationers who wore a GPS bracelet and faced an escape charge and those who did not face an escape charge. Despite her broad pronouncement regarding the effect of our supreme court's interpretation of the sentence credit as set forth in Magnuson , Liedke defines her argument as an "as applied" challenge.

¶10 The right to equal protection is guaranteed by both the United States Constitution and our state constitution. U.S. CONST. amend XIV ; WIS. CONST. art. I, § 1. The equal protection clause protects by requiring that the State "have reasonable and practical grounds for the classifications that it draws." State v. Quintana , 2008 WI 33, ¶79, 308 Wis. 2d 615, 748 N.W.2d 447. Challenges to these classifications of criminal offenders are subject to the rational basis test.⁵ See Hilber v. State , 89 Wis. 2d 49, 54, 277 N.W.2d 839 (1979) ; State v. Chapman , 175 Wis. 2d 231, 245, 499 N.W.2d 222 (Ct. App. 1993). "Under this ‘rational basis’ test, equal protection is violated only if the classification rests upon grounds wholly irrelevant to the achievement of the state's objective." State v. Smet , 2005 WI App 263, ¶21, 288 Wis. 2d 525, 709 N.W.2d 474. "The legislature need not state the purpose or rationale justifying the classification" provided that "there is a plausible explanation for the classification, [then] we will uphold the law." Id. "[T]he basic test is not whether some inequality results from the classification but whether there exists a rational basis to justify the inequality of the classification." State ex rel. Harr v. Berge , 2004 WI App 105, ¶5, 273 Wis. 2d 481, 681 N.W.2d 282 (citation omitted).

¶11 Liedke complains that treating probationers such as herself who are subject to GPS monitoring differently from prisoners subject to GPS monitoring on intensive sanctions—for purposes of determining sentence credit—violates her equal protection rights. In this case, however, we are satisfied that the sentence credit statute, as interpreted by Magnuson , does not violate Liedke's equal protection rights. While the statute with "in custody" defined as "subject to an escape" charge may indeed treat offenders subject to GPS monitoring differently, there is certainly a rational basis for the legislative classification. See Chapman , 175 Wis. 2d at 245 (applying rational basis review to an equal protection challenge involving sentence credit and holding that "any reasonable basis for the difference in treatment [of criminal offenders] will validate" the classification). Prisoners on intensive sanctions are subject to far more restrictive conditions than Liedke has demonstrated she was under, given that the intensive sanctions program has component phases that are intensive and highly structured and includes eighteen specific restrictions on liberty. See WIS. ADMIN. CODE § DOC 333.07(1)(a)–(r). Treating those on ordinary probation differently for sentence credit purposes from those sentenced to or placed on...