State v. Tuescher

• Decision Date: 22 April 1999
• Docket Number: No. 98-2564-CR,98-2564-CR
• Citation: 226 Wis.2d 465,595 N.W.2d 443
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Daniel C. TUESCHER, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 443

595 N.W.2d 443

226 Wis.2d 465

STATE of Wisconsin, Plaintiff-Respondent, v. Daniel C. TUESCHER, Defendant-Appellant. ^d No. 98-2564-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 4, 1999.

Opinion Released April 22, 1999.

Opinion Filed April 22, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of David D. Cook, Monroe.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general with whom on the brief was James E. Doyle, attorney general.

Before EICH, ROGGENSACK and DEININGER, JJ.

DEININGER, J.

Daniel Tuescher appeals a judgment of conviction and a postconviction order denying sentence credit. Tuescher was originally convicted of attempted second-degree intentional homicide for shooting a police officer, but that conviction was vacated and he was later convicted of and sentenced for first-degree reckless injury. Tuescher contends that under § 973.155, STATS., he is entitled to sentence credit for the period between the reversal of his first conviction and the imposition of the second sentence for the shooting offense. During this time, he remained incarcerated on sentences for other offenses committed during the criminal episode which included the shooting. We reject Tuescher's interpretation of § 973.155, and conclude that he is not entitled to sentence credit for a period during which he was serving sentences imposed for other criminal acts. Accordingly, we affirm the judgment of conviction and the order denying postconviction relief.

BACKGROUND

Tuescher burglarized a restaurant while armed with a shotgun. When police confronted Tuescher as he left the restaurant, he exchanged gunfire with them and wounded an officer. A jury found Tuescher guilty of attempted second-degree intentional homicide, attempted burglary while armed, and possession of a firearm by a felon. On October 23, 1995, Tuescher was sentenced to twenty-two-and-one-half years for the attempted homicide, and to concurrent terms of seven years and two years for the other felonies. Tuescher received 224 days credit on each of the three concurrent sentences for time he spent in custody prior to sentencing. That credit is not in dispute.

On March 31, 1997, the trial court set aside Tuescher's attempted homicide conviction on the grounds that Tuescher was

entitled to a jury instruction on a lesser included offense which he had requested but was denied. On January 26, 1998, Tuescher pled guilty to the lesser charge of first-degree reckless injury. The trial court imposed the jointly recommended sentence of fifteen years, to be concurrent with the sentences for burglary and possession of a firearm which Tuescher was already serving. The trial court granted Tuescher sentence credit from the time of his arrest to the time his attempted homicide conviction was vacated. The court denied Tuescher credit, however, for the additional 257 days from March 31, 1997, to January 26, 1998, during which Tuescher was serving the other two sentences, but was not serving a sentence for the shooting of the police officer. Tuescher appeals, seeking 257 additional days of credit toward his first-degree reckless injury sentence.

ANALYSIS

Determining the proper amount of sentence credit to which Tuescher is entitled requires application of § 973.155, STATS., to undisputed facts. See State v. Abbott, 207 Wis.2d 624, 627, 558 N.W.2d 927, 928 (Ct.App.1996). This involves a question of law subject to de novo review. See id.

Wisconsin's sentence credit statute, § 973.155, STATS., grants credit toward a defendant's sentence for time spent in custody prior to sentencing. Section 973.155 provides, in relevant part:

(1)(a) 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. As used in this subsection, "actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:

1. While the offender is awaiting trial;

2. While the offender is being tried; and

3. While the offender is awaiting imposition of sentence after trial.

The application of the sentence credit statute is straightforward when the defendant is sentenced on a single charge: all time spent in custody prior to the imposition of sentence is credited toward the sentence. The application of the statute is also relatively straightforward when multiple sentences are imposed at the same time. If the sentences are concurrent, time spent in pre-sentence custody is credited toward each sentence. See State v. Ward, 153 Wis.2d 743, 452 N.W.2d 158 (Ct.App.1989). But if the sentences are consecutive, time in pre-sentence custody is credited toward only one sentence. See State v. Boettcher, 144 Wis.2d 86, 423 N.W.2d 533 (1988).

Determining the sentence credit is more complex, however, when multiple sentences are imposed at different times. ¹ The statute grants credit toward a defendant's sentence for "all days spent in custody," so long as the pre-sentence custody "is connected to the course of conduct for which the sentence [is] imposed." Section 973.155, STATS.; see also State v. Gilbert, 115 Wis.2d 371, 380, 340 N.W.2d 511, 516 (1983). The statute also defines "actual days spent in custody" to include time spent serving "any other sentence arising out of the same course of conduct" as the newly imposed sentence.

Tuescher apparently acknowledges that he is not entitled to sentence credit simply because he was in custody from March 31, 1997, to January 26, 1998. A defendant is not entitled to pre-sentence This appeal thus turns on our interpretation of the phrase "course of conduct" in § 973.155, STATS. Tuescher urges us to interpret "course of conduct" broadly to mean "criminal episode." Thus, according to Tuescher, because all three of his convictions arose out of the same criminal episode, all were connected to the same "course of conduct," and because the three sentences are concurrent, he is entitled to credit on one sentence while serving the others. The State contends that the phrase "course of conduct" in § 973.155, must be construed more narrowly to mean "the specific 'offense or acts' embodied in the charge for which the defendant is being sentenced." The State contends that because Tuescher's incarceration from March 31, 1997, to January 26, 1998, was not imposed for the specific act for which he was sentenced for first-degree reckless injury, but for other criminal acts, he is not entitled to credit for those 257 days toward his reckless injury sentence.

credit for time spent serving a sentence on a different, unrelated charge. See, e.g., State v. Amos, 153 Wis.2d 257, 280-81, 450 N.W.2d 503, 512 (Ct.App.1989). Tuescher contends, however, that his burglary and firearm possession sentences "arise out of the same course of conduct" for which the reckless injury sentence was imposed. Tuescher argues that he is therefore entitled to credit toward his reckless injury sentence by virtue of the statute's inclusion of time spent serving "any other sentence arising out of the same course of conduct" within the definition of "actual days spent in custody."

Tuescher contends that the interpretation he advances for the phrase "course of conduct" is mandated by the plain language of § 973.155, STATS. We conclude, however, that the phrase is ambiguous as to whether "course of conduct" refers broadly to a "criminal episode" or narrowly to the "specific act" for which the defendant is sentenced. See State v. Gavigan, 122 Wis.2d 389, 392, 362 N.W.2d 162, 164 (Ct.App.1984). Generally, when we encounter an ambiguity in the language of a statute, we endeavor to interpret it in light of the statute's scope, legislative history, context, subject matter and purpose. See Pabst Brewing Co. v. DOR, 130 Wis.2d 291, 294-95, 387 N.W.2d 121, 122 (Ct.App.1986). In this case, we conclude that prior judicial interpretations illuminate these facets of the statute and provide the proper interpretation of the phrase "course of conduct" in § 973.155, STATS.

Although we have found no reported Wisconsin case interpreting the phrase "course of conduct" as used in § 973.155, STATS., in the precise circumstances at issue here--i.e., multiple concurrent sentences imposed at different times, but arising from a single, relatively brief criminal episode--the phrase has been discussed and explained in several appellate opinions which dealt with similar factual circumstances. We conclude that the State's proffered interpretation is consistent with Wisconsin case law applying § 973.155, whereas Tuescher's is not. Accordingly, we adopt the State's interpretation of the statute and affirm the trial court's denial of sentence credit.

The Wisconsin Supreme Court considered the question of sentence credit for concurrent sentences imposed at different times in State v. Beets, 124 Wis.2d 372, 369 N.W.2d 382 (1985), a case on which both parties rely. Beets was on probation from a drug conviction when he was arrested for burglary. Seventy-eight days after his arrest, the trial court imposed a ten-year sentence for the drug conviction. One-hundred-ninety-two days after sentencing on the drug charge, Beets was sentenced to three years for the burglary, to run concurrent with his drug sentence. Beets received only seventy-eight days credit toward his three-year burglary sentence. The supreme court held that he was not entitled to credit for the 192 days during which he was serving his sentence on the drug charge, because once Beets began serving the drug sentence, his confinement was no longer "in connection with the The court of appeals correctly disposed of the claim for credit for this period by simply holding that any connection which...