State v. Slater

• Court: Court of Appeals of Wisconsin
• Citation: 2021 WI App 88,400 Wis.2d 93,968 N.W.2d 740
• Docket Number: Appeal No. 2020AP1936-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Joseph L. SLATER, Defendant-Appellant.
• Decision Date: 02 November 2021

400 Wis.2d 93
968 N.W.2d 740
2021 WI App 88

STATE of Wisconsin, Plaintiff-Respondent,
v.
Joseph L. SLATER, Defendant-Appellant.

Appeal No. 2020AP1936-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: June 30, 2021
Opinion Filed: November 2, 2021

On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrew R. Hinkel, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joshua L. Kaul, attorney general, and Robert G. Probst, assistant attorney general.

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

STARK, P.J.

400 Wis.2d 96

¶1 Joseph Slater appeals from orders denying his postconviction motions for additional sentence credit. Slater was on probation in a prior case involving the possession of drugs ("the drug case") when he was arrested and charged with three counts of armed robbery in the instant case ("the armed robbery case"). Slater's arrest on the armed robbery charges triggered a probation hold in the drug case, and his probation was subsequently revoked. Slater was not, however, transferred to prison to begin serving his previously imposed-and-stayed sentence in the drug case. Instead, after Slater's probation was revoked, he remained in the Marathon County Jail awaiting resolution of the armed robbery case for over three years.

¶2 Pursuant to WIS. STAT. § 973.10(2)(b) (2019-20),¹ Slater argues that his imposed-and-stayed sentence in the drug case did not begin to run until he was received in prison, which did not occur until after his sentencing in the armed robbery case. Slater therefore argues that he is entitled to 1,096 additional days of sentence credit against his sentences imposed in the armed robbery case, representing the three-year period after his probation in the drug case was revoked. Stated differently, Slater argues he is entitled to credit for "the entire time he spent in jail before sentencing" in this case—a total of 1,260 days.

¶3 In response, the State contends that Slater is not entitled to the additional sentence credit he seeks because awarding him credit against his sentences in this case for the three years that he spent in

400 Wis.2d 97

jail after his probation in the prior case was revoked would result in an impermissible award of dual credit against non-concurrent sentences. The State correctly notes that dual credit is permissible only when two sentences are imposed concurrently, see State v. Boettcher , 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988), and it argues there is no indication that the circuit court intended Slater's sentences on the armed robbery charges to be concurrent to his imposed-and-stayed sentence in the drug case. In the alternative, the State

968 N.W.2d 743

asserts that we should reject Slater's claim for additional sentence credit because Slater invited any error that the court may have made when it granted him only 164 days of credit.

¶4 We agree with Slater that under WIS. STAT. § 973.10(2)(b), the imposed-and-stayed sentence in the drug case did not begin to run until Slater was received in prison, which did not occur until after Slater's sentencing in the instant case. We further agree with Slater that although the circuit court did not specify whether Slater's armed robbery sentences were to be concurrent or consecutive to his imposed-and-stayed sentence in the drug case, in the absence of any evidence that the court intended to impose consecutive sentences, we must presume that the sentences are concurrent. Under these circumstances, we agree that Slater is entitled to sentence credit against his armed robbery sentences for the three years that he spent in custody after his probation was revoked in the drug case. We also reject the State's argument that Slater invited the court's error regarding the proper amount of sentence credit. We therefore reverse the orders denying Slater's motions for additional sentence

400 Wis.2d 98

credit, and we remand for the court to modify Slater's judgment of conviction to grant him a total of 1,258 days of credit.²

BACKGROUND

¶5 Slater was charged in the drug case with felony possession with intent to deliver cocaine and misdemeanor possession of tetrahydrocannabinols (THC). Slater pled guilty to those counts, and the circuit court imposed and stayed a thirteen-year sentence on the cocaine count, consisting of three years’ initial confinement and ten years’ extended supervision, and placed Slater on probation for eight years. On the THC count, the court withheld sentence and imposed two years’ probation, concurrent to Slater's term of probation on the cocaine count.

¶6 While he was on probation in the drug case, Slater was arrested and charged with three counts of armed robbery in the case underlying this appeal. As a result of Slater's arrest on the armed robbery charges, a probation hold was placed on him in the drug case on February 20, 2002, and he was taken to jail the same day. Slater's probation in the drug case was revoked in

400 Wis.2d 99

either May or June of 2002.³ According to CCAP, on June 7, 2002, the circuit court held a sentencing-after-revocation hearing in the drug case

968 N.W.2d 744

and ordered Slater to serve three months in jail on the misdemeanor THC possession charge, consecutive to his imposed-and-stayed sentence.⁴

400 Wis.2d 100

¶7 As noted above, the circuit court had already imposed and stayed a thirteen-year prison sentence on the cocaine charge in the drug case. However, when Slater's probation in that case was revoked, he was not transferred to prison to begin serving that sentence. Instead, Slater remained in the Marathon County Jail awaiting resolution of the armed robbery charges in the present case. In March 2005, a jury found Slater guilty of all three armed robbery charges.

¶8 Slater's sentencing on the armed robbery charges took place on August 1, 2005. At sentencing, the State asserted that Slater

has served three years on his probation revocation case. He had three years, and ten years ES imposed, for a total of 13 years imposed and stayed hanging over his head at the time he committed these crimes. So in looking at that credit from June 7, 2002 to June 7, 2005, that leaves some other additional credit due him on whatever sentence the court imposes, which the state believes is 164 days.

The circuit court then asked Slater's attorney whether he had "a position on that," and counsel responded, "I have no objection to that calculation, your Honor." The court ultimately imposed thirty-year sentences on each of the three armed robbery charges, each consisting of twenty years’ initial confinement and ten years’ extended supervision. The court stated those sentences would be "served as concurrent sentences to each other." Consistent with the State's representation, the court granted Slater 164 days of sentence credit.

¶9 In 2019, Slater filed a pro se motion seeking an additional 1,096 days of sentence credit against his armed robbery sentences, representing the three-year period from June 7, 2002, to June 7, 2005, which Slater

400 Wis.2d 101

contended would have resulted in total sentence credit of 1,260 days. The circuit court denied Slater's motion following a hearing. The court reasoned that Slater was serving his previously imposed-and-stayed sentence on the cocaine charge in the drug case during the relevant three-year period, which severed the connection between Slater's custody during that time and the course of conduct for which his sentences on the armed robbery charges were imposed. Postconviction counsel was subsequently appointed for Slater, and he filed a second motion asserting that Slater was entitled to sentence credit "for the entire time he spent in jail before sentencing: 1260 days." The court again denied the requested sentence credit, and Slater now appeals.

DISCUSSION

¶10 Whether Slater is entitled to additional sentence credit under the undisputed

968 N.W.2d 745

facts of this case presents a question of law that we review independently. See State v. Abbott , 207 Wis. 2d 624, 628, 558 N.W.2d 927 (Ct. App. 1996). The sentence credit statute provides that a convicted offender "shall be given 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." WIS. STAT. § 973.155(1)(a). In deciding whether an offender is entitled to a particular amount of credit under the statute, a court must determine: (1) whether the defendant was "in custody" during the relevant time period; and (2) whether that custody was "in connection with the course of conduct for which sentence was imposed." State v. Johnson , 2009 WI 57, ¶27, 318 Wis. 2d 21, 767 N.W.2d 207 (citation...