State v. Sevelin

Decision Date06 August 1996
Docket NumberNo. 96-0729-CR,96-0729-CR
Citation204 Wis.2d 127,554 N.W.2d 521
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Mark SEVELIN, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of defendant-appellant, the cause was submitted on the brief of Marlene Baierl of Bartholomew & Miller, S.C., Hudson.

On behalf of plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, with Stephen Kleinmaier, Assistant Attorney General.

Before CANE, P.J. and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Mark Sevelin appeals a conviction for misdemeanor criminal damage to property, contrary to § 943.01(1), STATS., 1993-94, and a postconviction order denying his motion for sentence credit for eighty-two days he spent at substance abuse treatment centers. 1 Sevelin argues that (1) he cannot be convicted of criminal damage to property of his own marital home because the home is not "property of another," and (2) the trial court should have credited the time he spent at the treatment center against his jail sentence because he was in "custody" at the treatment center. See § 973.155(1)(a), STATS. 2 We conclude that (1) Sevelin can be convicted of criminally damaging his own marital home because his wife also had an ownership interest in the home and (2) Sevelin was in constructive custody of the Polk County sheriff while in the treatment center. Therefore, the judgment of conviction is affirmed, but the postconviction order is reversed.

In February 1994, Sevelin arrived home intoxicated, threatened his family with a two-foot knife and damaged several rooms in his marital home. When police arrived, Sevelin became verbally abusive and struck an officer.

The police arrested Sevelin, and he was held in jail under a $5,000 cash bond. Sevelin was charged with: (1) battery to a law enforcement officer, a felony, contrary to § 940.20(2), STATS., (2) obstructing an officer, a misdemeanor, contrary to § 946.41(1), STATS., (3) disorderly conduct, a misdemeanor, contrary to § 947.01, STATS., and (4) criminal damage to property, a misdemeanor, contrary to § 943.01, STATS.

Sevelin remained in jail until a later bond hearing. At that hearing, the circuit court modified Sevelin's bond and granted him a "furlough" to attend an inpatient treatment facility. The terms of the modified bond required that Sevelin sign an authorization so that the court could obtain information from the facility about his progress and whether he had left the clinic. The court warned Sevelin that if he left the institution for any reason, he would have to return to jail immediately. Sevelin initially stayed at an inpatient treatment facility resembling a hospital, and was transferred to a halfway house for substance abusers. Sevelin does not claim he was physically restrained at either facility in any manner. He remained in the facilities for a total of eighty-two days. After completion of the inpatient treatment programs, Sevelin's cash bond was amended to a signature bond, and the circuit court ordered him to comply with an after-care program.

Sevelin was convicted of all four counts charged. The trial court sentenced Sevelin to four years in the intensive sanctions program, with the first year to be spent in prison for the felony charge of battery to a law enforcement officer. The trial court also sentenced Sevelin to a total of 150 days in jail for the three misdemeanor charges. During the sentencing hearing, the trial court credited Sevelin for the days he spent in jail prior to sentencing. However, the court did not grant Sevelin's postconviction motion for credit for the days he spent at the inpatient rehabilitation centers.

First, Sevelin argues that the trial court erred by denying his motion to dismiss his criminal damage to property charge. One of the elements the State must prove to sustain a conviction is that the property damaged was the "property of another." Section 943.01(1), STATS.; WIS J I--CRIMINAL 1400. Sevelin was convicted of damaging his marital home. Although the precise ownership status of the home is unclear from the record, Sevelin and the State agree that both Sevelin and his wife have an ownership interest in the home. Sevelin argues that he cannot be convicted of damaging property in which he has an ownership interest.

Statutory interpretation is a question of law we review de novo. State ex rel. Frederick v. McCaughtry, 173 Wis.2d 222, 225, 496 N.W.2d 177, 179 (Ct.App.1992). Sevelin does not acknowledge or discuss § 939.22(28), STATS. That section defines "property of another" for purposes of chs. 939 to 948 and 951, STATS., as "property in which a person other than the actor has a legal interest which the actor has no right to defeat or impair, even though the actor may also have a legal interest in the property." This section unambiguously means that a person can be convicted of criminal damage to property even though he or she has an ownership interest if someone else also has an ownership interest.

Next, Sevelin argues that the trial court should have given him credit toward his jail sentence for the time he spent at inpatient treatment facilities. Section 973.155(1)(a), STATS., entitles defendants to credit toward service of their sentence "for all days spent in custody in connection with the course of conduct for which sentence was imposed." The State argues that Sevelin was not "in custody" during his stay at the rehabilitation centers. Whether the facts establish that Sevelin was in custody is a matter of statutory construction that we review de novo. See State v. Pettis, 149 Wis.2d 207, 209, 441 N.W.2d 247, 248 (Ct.App.1989).

In State v. Gilbert, 115 Wis.2d 371, 378-79, 340 N.W.2d 511, 515 (1983), our supreme court determined that we should use the escape statute, § 946.42(1)(a), STATS., to determine whether a person is in custody for sentence credit purposes. 3 Section 946.42(1)(a) 4 provides in part:

"Custody" includes without limitation actual custody of an institution, including a secured juvenile correctional facility, a secure detention facility, as defined under s. 48.02(16), or a juvenile portion of a county jail, or of a peace officer or institution guard and constructive custody of prisoners and juveniles subject to an order under s. 48.34(4m) temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile or otherwise. (Emphasis added.)

Sevelin argues that he was in constructive custody of the Polk County jail during his time at the treatment center because he was "temporarily outside the [county jail] for the purpose of ... medical care...." Section 946.42(1)(a), STATS. We agree.

There is no dispute that Sevelin was only outside the jail temporarily. The circuit court told Sevelin, "[i]f you leave [the treatment center] for any reason even if it is upon successful completion of the program, you report back to jail...."

The State argues that Sevelin's treatment at the rehabilitation centers does not constitute "medical care." 5 We must construe § 946.42(1)(a), STATS., to determine the meaning of the phrase "medical care." When construing a statute, our first inquiry is whether the words of the statute have an unambiguous meaning. Bindrim v. B. & J. Ins. Agency, 190 Wis.2d 525, 534, 527 N.W.2d 320, 323 (1995). If so, we do not resort to rules of judicial construction; rather, we give the words their obvious and intended meaning. Id.

The unambiguous meaning of "medical care" includes treatment of all diseases. Alcoholism is a disease. DeLaMatter v. DeLaMatter, 151 Wis.2d 576, 586, 445 N.W.2d 676, 681 (Ct.App.1989). We conclude that "medical care," as used in § 946.42(1)(a), STATS., unambiguously includes treatment at drug and alcohol rehabilitation centers. Because Sevelin was temporarily outside the Polk County jail for the purpose of medical care, the sheriff had constructive custody of him. 6

The State cites State v. Swadley, 190 Wis.2d 139, 526 N.W.2d 778 (Ct.App.1994); Pettis; State v. Cobb, 135 Wis.2d 181, 400 N.W.2d 9 (Ct.App.1986), to establish that Sevelin was not in actual custody. We need not address this argument because our holding with regard to constructive custody is dispositive. See Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct.App.1983). We note, though, that these cases are distinguishable with regard to our discussion concerning whether Sevelin was in constructive custody. In Pettis and Swadley, the defendants spent time in home detention, Pettis, 149 Wis.2d at 208, 441 N.W.2d at 248; Swadley, 190 Wis.2d at 140, 526 N.W.2d at 779, and "[h]ome detention is not...

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8 cases
  • State v. Friedlander
    • United States
    • Wisconsin Supreme Court
    • March 12, 2019
    ...In reaching its holding, the court of appeals compared the defendant's situation to that of the defendant in State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996).9 Dentici, 251 Wis. 2d 436, ¶11, 643 N.W.2d 180. The court of appeals concluded that like Sevelin, Dentici "was gran......
  • State v. Sorenson
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    • South Dakota Supreme Court
    • September 13, 2000
    ...subject to court order while "temporarily outside the institution whether for the purpose of ... medical care." State v. Sevelin, 204 Wis.2d 127, 554 N.W.2d 521 (1996) (recognizing alcoholism as a disease and remanding to trial court to credit defendant for 82 days spent at inpatient substa......
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    ...Ohio App.3d 615, 709 N.E.2d 218 (1998); State v. Superior Court, 188 Ariz. 372, 936 P.2d 558 (Ariz.Ct.App.1997); State v. Sevelin, 204 Wis.2d 127, 554 N.W.2d 521 (Ct.App.1996); State v. Zeien, 505 N.W.2d 498 (Iowa 1993); People v. Kahanic, 196 Cal.App.3d 461, 241 Cal.Rptr. 722 (1987); and P......
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    • February 5, 2002
    .... detained by a law enforcement officer"). ¶ 11. Dentici's situation is comparable to that of the defendant in State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996). But cf. Magnuson, 2000 WI 19 at ¶¶ 42-43. In Sevelin, the trial court granted the defendant, Sevelin, a "furlough......
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