State v. Risch

• Decision Date: 07 February 2023
• Docket Number: 2020AP965-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Kenneth L. Risch, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent, v. Kenneth L. Risch, Defendant-Appellant.

No. 2020AP965-CR

Court of Appeals of Wisconsin, District III

February 7, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Taylor County No 2014CF9: ANN KNOX-BAUER, Judge.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Kenneth Risch, pro se, appeals an order amending his judgment of conviction to reflect 1,141 days of sentence credit. Risch argues that he is entitled to additional sentence credit for time he spent confined pursuant to a different case but while on probation in this case. He also argues that the circuit court denied him due process by amending his judgment of conviction without a hearing and that he received constitutionally ineffective assistance of counsel. We reject Risch's arguments and affirm.

BACKGROUND

¶2 On December 12, 2014, Risch pled no contest to both second-degree sexual assault of a child in this case and sexual gratification with an animal in Taylor County case No 2014CM6. The criminal complaint in this case alleged that Risch had touched the vaginal area of an eight-year-old girl on two separate occasions. In case No. 2014CM6, the State alleged that Risch had "sexual intercourse with his dog."

¶3 After accepting Risch's pleas, and in accordance with the parties' agreement, the court withheld sentence in both cases. It ordered Risch to serve eight years of probation in this case with one year of conditional jail time. In case No 2014CM6, the court ordered one year of probation concurrent to the probation in this case and two months of conditional jail time consecutive to the conditional jail time ordered in this case. Risch served his year of conditional jail time in this case from January 19, 2015, until January 19, 2016. According to Risch, he remained confined in jail pursuant to the order in case No. 2014CM6 until March 14, 2016.

¶4 In late 2017, Risch's probation in this case was revoked after the Department of Corrections (DOC) discovered "multiple images of naked or partially clothed children on [Risch's] HP Laptop." The DOC also determined that Risch had possessed and viewed sexually explicit videos with "titles describing the video[s] as containing underage individuals." At the sentencing after revocation hearing, the circuit court sentenced Risch to five years' initial confinement followed by seven years' extended supervision. The court accepted the sentence credit calculation provided by Risch's counsel and awarded Risch 1,189 days of sentence credit. Risch later appealed his sentence to this court, arguing that the circuit court relied on an improper sentencing factor and that his trial counsel was ineffective for failing to object. State v. Risch, No. 2019AP2027-CR, unpublished slip op. ¶1 (WI App Sept. 22, 2020). We rejected Risch's arguments and affirmed. Id., ¶2.

¶5 In February 2020, Risch filed a motion seeking to amend his judgment of conviction. He argued that he was entitled to seven additional days of sentence credit and that his judgment of conviction should be amended to reflect 1,196 days of sentence credit in total. Risch's calculation consisted of: (1) ninety-six days from a probation hold between 2013 and 2014; (2) 421 days from his conditional jail time in both this case and case No. 2014CM6; (3) 127 days from a probation hold between 2016 and 2017; (4) seventy-eight days from an alternative to revocation in 2017; and (5) 474 days from a probation hold starting in 2017 and ending with Risch's sentencing after revocation in 2018. Risch also argued that he was entitled to 105 days of good time credit for his conditional jail time pursuant to Wis.Stat. § 973.09(1)(d) (2019-20).^[1]

¶6 In response to Risch's motion, the State agreed that the judgment of conviction should be amended, but it argued that Risch was actually entitled to less sentence credit than he had originally received. As relevant to this appeal, the State asserted that Risch was not entitled to any sentence credit for his conditional jail time pursuant to case No. 2014CM6. The State therefore asserted that Risch was entitled to only 366 days of sentence credit for his conditional jail time, not the 421 days calculated by Risch.

¶7 In a written decision, the circuit court ordered that Risch's judgment of conviction be amended to reflect 1,141 days of sentence credit-forty-eight days less than the sentence credit previously awarded. In reaching this conclusion, the court agreed with all but one of Risch's calculations: the 421 days of conditional jail time in both this case and case No. 2014CM6. The court determined that Risch was entitled to credit for only 366 of those days for his conditional jail time served in this specific case. The court also denied Risch's request for good time credit, concluding that Risch's offense did not qualify by statute.^[2] Risch later filed a motion for reconsideration, but the court denied that motion as well.

¶8 Risch now appeals. Additional facts will be provided as necessary below.

DISCUSSION

I. Sentence credit

¶9 On appeal, Risch argues that he is entitled to fifty-three additional days of sentence credit for his confinement pursuant to case No. 2014CM6.^[3] He contends that such confinement was unlawful because the aggregate fourteen months of conditional jail time in this case and in case No. 2014CM6 exceeded the one-year limit in Wis.Stat. § 973.09(4)(a). See also State v. Johnson, 2005 WI.App. 202, ¶¶9, 20, 287 Wis.2d 313, 704 N.W.2d 318 (concluding that a defendant serves one period of probation under § 973.09 if convicted of two or more offenses at the same time and that the conditional jail time under such period of probation is limited to one year). He also points out that he completed his one year of probation in case No. 2014CM6 before he began serving any conditional jail time in that case; therefore, he served all of his conditional jail time while on probation in this case.

¶10 The State does not address the merits of Risch's argument that the fourteen months of conditional jail time violated Wis.Stat. § 973.09(4)(a),^[4] nor does it dispute that Risch had been discharged from case No. 2014CM6 before he began serving any conditional jail time in that case. Instead, the State argues that Risch has not shown that he is entitled to sentence credit under Wis.Stat. § 973.155 because the time served pursuant to case No. 2014CM6 was not "in connection with" the acts for which his sentence was imposed in this case. The State also contends that Risch is not entitled to an equitable remedy.

¶11 In Wisconsin, a defendant's right to sentence credit is set forth in Wis.Stat. § 973.155. The interpretation and application of § 973.155 are questions of law that we review de novo. See State ex rel. Thorson v. Schwarz, 2004 WI 96, ¶13, 274 Wis.2d 1, 681 N.W.2d 914.

¶12 Under Wis.Stat. § 973.155(1)(a), "[a] convicted offender shall begiven 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." Thus, to be entitled to sentence credit under § 973.155(1)(a), the defendant must show: (1) that "the defendant was 'in custody'"; and (2) that "the custody was 'in connection with the course of conduct for which the sentence was imposed.'" State v. Lira, 2021 WI 81, ¶29, 399 Wis.2d 419, 966 N.W.2d 605 (citations omitted). The connection between the presentence custody and the sentence imposed "must be factual; a mere procedural connection will not suffice." State v. Johnson, 2009 WI 57, ¶33, 318 Wis.2d 21, 767 N.W.2d 207 (hereinafter, Elandis Johnson); see also State v. Harrison, 2020 WI 35, ¶43, 391 Wis.2d 161, 942 N.W.2d 310.

¶13 Here, it is undisputed that Risch was "in custody" from January 19, 2016, until March 14, 2016, pursuant to the two months of conditional jail time ordered in case No. 2014CM6. Risch has not shown, however, a factual connection between that confinement and the course of conduct for which the circuit court imposed his sentence in this case. In this case, Risch was sentenced for sexual contact with an eight-year-old girl. In contrast, Risch's confinement pursuant to case No. 2014CM6 was in connection to him having sexual intercourse with his dog. Thus, the conditional jail time served pursuant to case No. 2014CM6 was not "in connection with the course of conduct for which sentence was imposed" in this case-i.e., Risch's sexual assault of an eight-year-old girl. See Wis. Stat. § 973.155(1)(a).

¶14 Risch attempts to draw several connections between his confinement pursuant to case No. 2014CM6 and his sentence in this case, arguing that both cases were investigated, charged and prosecuted together, and that he was convicted and placed on probation in both cases at the same time. All of these connections, however, are procedural connections between the two cases, not a factual connection between the confinement pursuant to case No. 2014CM6 and the conduct for which sentence was imposed in this case. See Elandis Johnson, 318 Wis.2d 21, ¶33.

¶15 Moreover, even if the circuit court imposed one term of probation in both this case and in case No. 2014CM6, such a connection does not matter under Wis.Stat. § 973.155(1)(a). "Probation is not a sentence and therefore, jail time served as a condition of probation is not a sentence." See State v. Yanick, 2007 WI.App. 30, ¶9, 299 Wis.2d 456, 728 N.W.2d 365. The relevant "sentence … imposed" for purposes of calculating sentence credit under § 973.155(1)(a) is...