State v. Yanick, 2006AP849-CR.

Citation728 N.W.2d 365,2007 WI App 30
Decision Date25 January 2007
Docket NumberNo. 2006AP849-CR.,2006AP849-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Martin V. YANICK, Jr., Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Maura FJ Whelan, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

Before LUNDSTEN, P.J., DYKMAN and VERGERONT, JJ.

¶ 1 LUNDSTEN, P.J

Martin Yanick is now serving an imposed and stayed prison sentence following revocation of his probation. He seeks sentence credit against this sentence for time he alleges he spent serving jail time as a condition of probation. A dispute over this conditional jail time arises because it overlaps with time Yanick spent serving an unrelated prison sentence. The circuit court denied sentence credit for this overlapping time. We reverse. We conclude that, when a defendant has served conditional jail time and his or her probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence.

Background

¶ 2 Yanick was convicted of operating a motor vehicle while intoxicated (OWI), fifth offense. After serving probation on that crime and being revoked, Yanick commenced serving an imposed and stayed sentence. He seeks sentence credit against this revocation sentence for time he contends he spent serving jail time as a condition of his OWI probation. The relevant facts for purposes of the sentence credit question before us are as follows:

• On May 31, 2000, Yanick received a five-year prison sentence on his OWI-5th offense conviction. The court stayed that sentence and ordered that Yanick serve five years of probation, with one condition being that Yanick serve six months in jail ("conditional jail time"). Probation was imposed to run consecutive to a previously imposed jail sentence.

• On July 21, 2001, Yanick commenced serving his OWI probation and his six months of conditional jail time.

• On August 8, 2001, Yanick was convicted of and sentenced for felony escape. He received a three-year term of initial confinement and commenced serving that prison term.1

• On August 13, 2001, Yanick was transferred from jail to prison.

• On July 13, 2004, Yanick was released from prison.

• On April 21, 2005, Yanick was arrested for a new offense.

• On August 5, 2005, Yanick's OWI probation was revoked, and he commenced serving his imposed and stayed five-year prison term.

¶ 3 After Yanick began serving his OWI revocation sentence, he filed a motion requesting sentence credit for six months, covering the time he alleges he spent serving his OWI conditional jail time, including time when his conditional jail time overlapped with service of his escape sentence. The circuit court initially denied credit entirely, stating that Yanick's escape sentence was "not imposed for the same `course of conduct' as that for which [he] was sentenced in [his OWI case]." In a later order, the circuit court granted 32 days of sentence credit. Pertinent here, that order awarded 23 days of credit covering time from when Yanick began serving his OWI conditional jail time, July 21, 2001, through the day Yanick was transferred to prison under his escape sentence, August 13, 2001. Consequently, the sentence credit at issue on appeal appears to be 157 days.2

Discussion

¶ 4 Yanick seeks sentence credit against his OWI revocation sentence for time spent serving jail time as a condition of his OWI probation. In Yanick's view, he continued serving his OWI conditional jail time even after he began serving his escape prison sentence. And, according to Yanick, there is no basis for denying him credit for this time period. We agree.

¶ 5 It is undisputed that, if Yanick's escape sentence is taken out of the mix, he would be entitled to sentence credit against his OWI sentence for time spent serving his OWI conditional jail time. The sentence credit statute, WIS. STAT. § 973.155 (2003-04),3 requires that credit be given for time spent in jail as a condition of probation against a sentence imposed for the crime for which the defendant was on probation serving the jail time. See State ex rel. Ludtke v. DOC, 215 Wis.2d 1, 10-11, 572 N.W.2d 864 (Ct.App. 1997), summarizing the holding in State v. Gilbert, 115 Wis.2d 371, 372-73, 377-80, 340 N.W.2d 511 (1983). The question here is whether Yanick's escape prison sentence requires a different result.

¶ 6 According to the State, Yanick's request for sentence credit against his OWI sentence hinges on the proposition that Yanick in fact continued to serve his OWI conditional jail time after he commenced serving his escape prison sentence. This proposition is incorrect, the State contends, because when Yanick began serving his escape prison sentence, he automatically stopped serving his OWI conditional jail time. In addition, according to the State, regardless whether Yanick continued serving his OWI conditional jail time for some purposes, awarding Yanick sentence credit is inconsistent with sentence credit case law, most notably State v. Beets, 124 Wis.2d 372, 374-75, 378 & n. 5, 369 N.W.2d 382 (1985), and State v. Ward, 153 Wis.2d 743, 452 N.W.2d 158 (Ct.App.1989).

¶ 7 In the following sections, we reject the State's arguments.

Whether Conditional Jail Time May Run Concurrent With Service Of A Prison Sentence

¶ 8 The State argues that Yanick is not entitled to sentence credit on his OWI sentence for days in custody after he commenced serving his escape sentence because, after that date, Yanick was no longer serving his OWI conditional jail time. The State acknowledges that Yanick's OWI probationary period continued running, but contends Yanick's conditional jail time stopped by operation of law. The State's reasoning is as follows. Conditional jail time is not a sentence, and a person may be incarcerated in a Wisconsin prison only pursuant to a judgment of conviction sentencing the person to serve a term of confinement in prison. Therefore, according to the State, it is not possible to serve conditional jail time in prison.

¶ 9 We agree with the State's first proposition. Probation is not a sentence and, therefore, jail time served as a condition of probation is not a sentence. See State v. Hays, 173 Wis.2d 439, 444, 496 N.W.2d 645 (Ct.App.1992).

¶ 10 As to the State's second proposition — that a person may be incarcerated in a Wisconsin prison only pursuant to a judgment of conviction sentencing the person to serve prison time — we will assume it is true for purposes of this decision.4

¶ 11 The problem with the State's reasoning is that its two propositions do not lead to the conclusion that conditional jail time may not be served concurrent with prison time. Just because conditional jail time, standing alone, would never be served in prison, that does not mean it may not be served in prison if combined with a prison sentence. The State points to no general or specific prohibition on serving jail time in a prison if that time runs concurrent with a prison sentence.5

¶ 12 We also observe that it is in the nature of concurrent time that service of one sentence may render service of another sentence, for some purposes, superfluous. For example, a later imposed concurrent sentence may negate any benefit — at least regarding incarceration time — of a successful appeal of the earlier imposed sentence. Thus, it is not remarkable that, because Yanick served three years for the escape conviction, that rendered superfluous service of the remainder of Yanick's six months of conditional jail time.

¶ 13 Indeed, this court has concluded that the imposition of a sentence may create a windfall for a person serving conditional jail time. In State v. Maron, 214 Wis.2d 384, 571 N.W.2d 454 (Ct.App.1997), this court held that the sentencing statutes do not give courts authority to order that a sentence be served consecutive to jail time already being served as a condition of probation. Id. at 386, 571 N.W.2d 454. We did so while acknowledging:

The State argues convincingly that [defendant's] reading of the statute thwarts the punitive purposes of the trial court's order and is not good policy. We do not dispute that there may be good reasons for permitting a sentence to be made consecutive either to a term of probation or to jail time served as a condition of probation, such as the reasons the trial court articulated here. However, those are policy considerations that must be addressed to the legislature, not this court.

Id. at 394, 571 N.W.2d 454. We did, however, go on to explain that courts have some options that may ameliorate a windfall in some circumstances:

The [sentencing] court might have chosen to stay execution of the sentence . . . for sixty days under § 973.15(8)(a)3, STATS., or might have imposed a [longer sentence]. There are likely other options the court might have chosen had it understood [that it could not impose a sentence consecutive to jail time as a condition of probation].

Id. at 395-96, 571 N.W.2d 454 (footnote and citations omitted).

¶ 14 In sum, we reject the State's contention that Yanick's conditional jail time automatically ceased running when he began serving his escape prison sentence because the State does not back up that contention with a persuasive analysis, and we can discern none.

Whether Case Law Precludes Sentence Credit

¶ 15 The State contends that, under Ward, 153 Wis.2d 743, 452 N.W.2d 158, and commentary in the Criminal Jury Instructions special materials, the rule that a single day of sentence credit must be awarded to all discrete sentences served concurrently applies only...

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