State v. Theoharopoulos

• Citation: 72 Wis.2d 327,240 N.W.2d 635
• Decision Date: 20 April 1976
• Docket Number: No. 79,79
• Parties: STATE of Wisconsin, Respondent, v. William Andrew THEOHAROPOULOS, Appellant. State(1974).
• Court: United States State Supreme Court of Wisconsin

Page 635

240 N.W.2d 635

72 Wis.2d 327

STATE of Wisconsin, Respondent, v. William Andrew THEOHAROPOULOS, Appellant.

State No. 79 (1974).

Supreme Court of Wisconsin.

Argued Feb. 3, 1976.

Decided April 20, 1976.

James R. Glover, Milwaukee (argued), and James A. Walrath and Shellow & Shellow, Milwaukee, on briefs.

Michael R. Klos, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief.

HEFFERNAN, Justice.

This is an appeal from an order denying defendant's motion for postconviction relief pursuant to sec. 974.06, Stats., entered on February 15, 1974. The defendant sought to have his conviction of February 18, 1969, for the sale of marijuana for smoking purposes, set aside. At the time the defendant filed his petition for relief, he had been discharged from supervision and custody as the result of the 1969 conviction and was not, as is required by sec. 974.06(1), 'in custody under sentence of a court.' As a consequence, the trial court was without jurisdiction, and this court is required to vacate the order and remand to the trial court with directions to dismiss the petition.

The facts show that, following the defendant's conviction on February 18, 1969, his sentence was stayed and he was placed on probation for a period of two years. On February 17, 1971, the sentencing court entered an order discharging him from probation supervision and discharging him from further sanctions in respect to the case.

In 1973, the defendant filed a petition for postconviction relief under sec. 974.06 Stats., on the grounds that he had been improperly convicted, basically for the reason that the marijuana statute under which he was charged was unconstitutionally vague, and also because of alleged prejudicial errors committed during the course of trial.

In his petition for postconviction relief, he alleged that he was then confined in the Waukesha County Jail under a federal detainer for possible deportation from the United States and that such custody and possible deportation was the result of his previous conviction in the state courts in 1969.

Sec. 974.06, Stats., in the portion pertinent to this appeal, provides:

'974.06 Post-conviction procedure. (1) A prisoner in custody under sentence of a court claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.'

The jurisdictional question was not argued in the circuit court, but it was raised by the state on appeal. Defendant's counsel also submitted a complete brief on the jurisdictional question. Because the question is one of subject matter jurisdiction and because both parties have presented their views in extenso, it is appropriate and necessary that the question be decided.

The facts are undisputed that, at the time of the filing of the motion for postconviction relief, the defendant was no longer under sentence, nor in custody under the sentence of the state court. On the face of it, therefore, it appears indisputable that the circuit court had no jurisdiction to entertain the petition for relief.

The defendant argues, however, that the jurisdictional requirement is satisfied, because the petition alleged that the defendant was confined in the Waukesha County Jail and that the conviction in the state court was the basis for the federal detainer and for the possible deportation proceedings. He argues that, because there is admittedly a causal relationship between the 1969 conviction and the federal detention, the custody requirement is satisfied. The defendant urges that, under the cases decided pursuant to the federal postconviction statute, 28 U.S.C., sec. 2255, of which sec. 974.06, Stats., is almost a carbon copy, a liberal construction should be given to the custody requirement.

While we agree with the defendant's premises that the custody requirement should be interpreted with liberality, an examination of the federal cases discussing the custody requirements under 28 U.S.C., secs. 2241 and 2255, support not the defendant's position, but the state's.

The federal courts uniformly hold that a detainer constitutes custody for purposes of sec. 2241 and sec. 2255. Word v. North Carolina (1969, 4th cir.), 406 F.2d 352; Desmond v. United States Board of Parole (1968, 1st cir.) 397 F.2d 386; Dodd v. United States Marshal (1971, 2d cir.), 439 F.2d 774; and U.S. ex rel. Meadows v. State of New York (1970), 426 F.2d 1176. These cases make it clear that custody under a detainer is attributable to the governmental entity which has lodged the detainer.

The jurisdiction over the defendant was obtained by a federal detainer warrant, and the custody of the defendant in the Waukesha County Jail is by the United States Government. The fact that the defendant at the time of the filing of the petition was physically within the confines of the Waukesha County Jail should not confuse the question, for that facility has contracted with the United States Department of Justice for the housing of federal prisoners, and legal custody vests in the United States and not in the State of Wisconsin.

The custody is not 'under sentence of a court.' The custody is the result of a separate process, completely beyond the control of the state of Wisconsin.

The defendant, however, argues that several cases which have been decided in the federal system have permitted a defendant to attack a sentence already served. While the fact that the sentence attacked has been completely served will not necessarily preclude a sec. 2241 or 2255 challenge to the conviction, the conditions which permit such an attack are not present in this case.

The federal courts have noted that a defendant who wishes to challenge a sentence already served faced two hurdles--mootness and jurisdiction--before the court will proceed to a decision. Carafas v. LaVallee (1968), 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554; Thomas v. Transey (1972, D.Md.), 359 F.Supp. 441. Mootness and jurisdiction are separate issues, and both must be overcome by a convicted person seeking relief under a statutory postconviction remedy.

The defendant relies upon Banks v. United States (1970, S.D.N.Y.), 319 F.Supp. 649. In that case, the petitioner was serving a sentence under a recidivist statute and wished to attack the conviction on the sentence which he had already served. The court held that, under those circumstances, the prior conviction could be reached under sec. 2255 because the case was not mooted by the expiration of the first sentenc--the defendant was still suffering the collateral consequences of the previous conviction. The court concluded it had jurisdiction because of the close causal relationship between the sentence being served and the expired sentence. The court held in Banks that the defendant was in reality attacking his custody under the sentence he was then serving, which was the direct result and the consequence of the earlier conviction.

The federal cases demonstrate that defendants are allowed to attack sentences already served only where they are currently serving a sentence which is directly affected by the previous convictions. On the other hand, where the present confinement is unrelated to the sentence already served, the federal courts hold that the case is either moot or that no...