State v. Pegues

• Decision Date: 08 December 2010
• Docket Number: Cir. Ct. No. 2008CF534,Appeal No. 2009AP2022-CR,Appeal No. 2009AP2023-CR,Cir. Ct. No. 2006CF260
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Sergio M. Pegues, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent,

v.Sergio M. Pegues, Defendant-Appellant.

Appeal No. 2009AP2022-CR

Appeal No. 2009AP2023-CR

Cir. Ct. No. 2006CF260

Cir. Ct. No. 2008CF534

COURT OF APPEALS

STATE OF WISCONSIN

DISTRICT II.

Filed: December 8, 2010

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.

APPEAL from orders of the circuit court for Racine County: DENNIS J. BARRY, and FAYE M. FLANCHER, Judges. Affirmed.

Before Brown, C.J., Neubauer, P.J., and Anderson, J.

¶1 PER CURIAM. Sergio M. Pegues has appealed from an order entered on July 23, 2009, in the circuit court for Racine county, the Honorable Dennis J. Barry presiding, denying Pegues' motion for postconviction relief in Racine county circuit court case No. 2006CF260. He has also appealed from an order entered by the Honorable Faye M. Flancher on the same date, denying postconviction relief in Racine county circuit court case No. 2008CF534.¹ We affirm both orders.

¶2 The issues presented by each appeal are different but related. In February 2006, Pegues entered a guilty plea to one count of possession of marijuana as a repeat drug offender in Racine county circuit court case No. 2006CF260. On May 2, 2006, the trial court withheld sentence and placed Pegues on two years of probation. The trial court ordered sixty days in jail as a condition of probation pursuant to WIS. STAT. § 973.09(4)(a) (2007-08).² Because Pegues had already been confined for thirty-five days of pretrial detention, the trial court granted him thirty-five days of credit against the sixty days of jail time.³ As a condition of probation, Pegues was also ordered to pay costs and surcharges, including $20 for court costs, $8 for other costs, $85 for the mandatory victim/witness surcharge, and $250 for a DNA surcharge.

¶3 On April 22, 2008, Pegues signed a Petition and Stipulation to Waive Appearance and Hearing, and Order Extending Probation. In this petition, Pegues stated that he had failed to fulfill the conditions of his probation by failing to pay "Court ordered financial obligations" in the amount of $371.15. Heacknowledged that the Wisconsin Department of Corrections believed that he had not made a good faith effort to pay and was asking the trial court to extend his probation for one year. He acknowledged that he was aware of and understood that he had a right to a trial court hearing on whether the Department's request should be granted. He acknowledged that at the hearing, the Department would have to show that he had the ability to pay and that an extension would further his rehabilitation as well as the interests of the community. He acknowledged that he had a right to appointed counsel, and that if he waived these rights, the trial court could enter an order extending his probation. Pegues stated that he wanted to waive his right to a hearing and asked the trial court to grant the Department's request for an extension. He stated that by signing the document, he certified that his waiver was made freely and voluntarily, without promises or threats.

¶4 The trial court signed the order on April 30, 2008, stating that probation was extended from May 2, 2008, to May 2, 2009, or until all court obligations were completed, whichever came first. The order stated that the relief requested was in the best interests of the defendant and the community, and that it served the purpose for which probation was imposed.

¶5 Based on violations of the terms and conditions of Pegues' probation, an apprehension request was issued for him by probation authorities on April 27, 2008. According to the complaint in Racine county circuit court case No. 2008CF534, police officers saw Pegues on May 1, 2008, and approached him because he had "an outstanding felony warrant out of Probation and Parole." According to the complaint, the officers told Pegues that he had an outstanding warrant and that he should come with them, at which point Pegues fled. Pegues subsequently was charged in Racine county circuit court case No. 2008CF534with obstructing an officer, disorderly conduct, and possession of marijuana with intent to deliver.

¶6 Revocation proceedings were commenced against Pegues in Racine county circuit court case No. 2006CF260 and, on July 11, 2008, he waived his right to a revocation hearing. On August 14, 2008, the trial court sentenced him after revocation of probation to a bifurcated thirty-month sentence, consisting of eighteen months of initial confinement and one year of extended supervision.

¶7 On August 14, 2008, Pegues also entered guilty pleas to the obstruction and disorderly conduct charges in Racine county circuit court case No. 2008CF534. Pursuant to the plea agreement, the drug charge was dismissed. The plea agreement also provided that the State would recommend two year sentences on each charge, consisting of one year of initial confinement and one year of extended supervision, consecutive to each other and consecutive to the sentence imposed after revocation of probation in Racine county circuit court case No. 2006CF260. This was the sentence ultimately recommended by the prosecutor and imposed by the trial court.

¶8 Pegues' first argument on appeal is that the trial court lacked jurisdiction to extend his probation in Racine county circuit court case No. 2006CF260 because his term of probation expired on March 28, 2008. A trial court loses jurisdiction over a probationer when the probationer has served his term of probation. State v. Stefanovic, 215 Wis. 2d 310, 319, 572 N.W.2d 140 (Ct. App. 1997). Pegues contends that the thirty-five days of sentence credit which was applied by the trial court to reduce the sixty days of jail time imposed as a condition of probation also reduced his two-year term of probation. Based on this reasoning, he contends that his original term of probation expired on March 28, 2008, thirty-five days before May 2, 2008. He contends that the trial court therefore lacked jurisdiction to extend his probation on April 30, 2008.

¶9 In support of his argument, Pegues cites State v. Fearing, 2000 WI App 229, ¶21, 239 Wis. 2d 105, 619 N.W.2d 115, for the proposition that conditions of probation, including the condition of jail confinement and the length of that confinement, are a component of the criminal penalty of probation. Based on Fearing, Pegues contends that when a trial court awards credit for pretrial detention to reduce jail time imposed as a condition of probation, its order also reduces the defendant's overall term of probation.

¶10 Contrary to Pegues' argument, nothing in Fearing or WIS. STAT. § 973.09(4)(a) provides any support for such a conclusion. Instead, as argued by the State, this issue is controlled by WIS. STAT. § 973.155(1) (a).

¶11 Pursuant to the express language of WIS. STAT. § 973.155(1)(a), a convicted defendant is entitled to 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. By its terms, § 973.155(1)(a) provides for credit toward the service of a sentence. Within the meaning of § 973.155(1)(a), a sentence to which credit can attach requires confinement or incarceration. Cf. State v. Martinez, 2007 WI App 225, ¶¶17-18, 305 Wis. 2d 753, 741 N.W.2d 280 (defendant was not entitled to have time spent serving a federal sentence credited against a Wisconsin sentence because he was on parole in the Wisconsin case when he was incarcerated on the federal sentence and the prospect of him serving any further Wisconsin sentence at the time he served the federal sentence was speculative); State v. Rohl, 160 Wis. 2d 325, 331-32, 466 N.W.2d 208 (Ct. App. 1991) (because the defendant was on parole in Wisconsin at the time he wasconfined on charges in California, the period of confinement in California could not be credited against his Wisconsin sentence). Pegues' two-year term of probation was not a period of confinement. His pretrial detention and the credit awarded on his condition of probation jail time therefore did not reduce his term of probation.⁴

¶12 In concluding that probation is not a sentence for purposes of awarding credit under WIS. STAT. § 973.155(1)(a), we also note that probation is generally considered to be an alternative to a sentence, not a sentence. Fearing, 239 Wis. 2d 105, ¶3, ¶6. See also State v. Pierce, 117 Wis. 2d 83, 85, 342 N.W.2d 776 (Ct. App. 1983); Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974). Sentence was not imposed in this case until August 14, 2008, when Pegues was sentenced after revocation of his probation. See Prue, 63 Wis. 2d at 116. Nobasis therefore exists to conclude that Pegues' two-year term of probation was reduced by the thirty-five days he spent in pretrial detention.⁵

¶13 Pegues' second argument is that the trial court erroneously extended his probation for failure to make payments ordered as a condition of probation. This argument fails because, as discussed above, Pegues expressly waived his right to a hearing on extension and stipulated to entry of an order extending his probation.

¶14 A trial court may extend a defendant's probation if, prior to the expiration of the period of probation, the defendant stipulates to the extension of supervision and the trial court finds that the extension would serve the purposesfor which probation was imposed. WIS. STAT. § 973.09(3)(c)3. As previously discussed, in the Petition and Stipulation to Waive Appearance and Hearing, and Order Extending Probation signed by Pegues, he conceded that he had failed to fulfill the conditions of his probation by failing to pay court-ordered financial obligations. He acknowledged that he was entitled to a hearing at which the Department would have to show that he had the...