BYRD, Plaintiff in error, v. STATE, Defendant in error.
No. State 113.
Supreme Court of Wisconsin
Argued September 10, 1974.—Decided October 31, 1974.
222 N.W.2d 696
For the defendant in error the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
DAY, J. Thе first question, whether the defendant has a right to challenge the fornication statute as an unconstitutional invasion of privacy, is disposed of by the holding of this court in Jones v. State (1972), 55 Wis. 2d 742, 200 N. W. 2d 587. In that case, this court held that one convicted of sodomy under
“Certainly the state has a lеgitimate interest in prohibiting heinous acts like those perpetrated by the defendant in this case. His conduct was not . . . consensual . . . ; on the contrary, it was . . . accomplished, not with a consenting spouse but forced upon a victim . . . who was unable to escape from the defendant‘s physical violence and demands. There is no constitutional protection for the revolting conduct of the defendant . . . the hypothetical he raises [consensual acts by married persons] has no reаsonable relation to his conduct or the purpose of the statute. It can hardly be said the defendant . . . has any real or concrete interest in the vindication of the rights of privacy of married couples and he should not be allowed to use a reference to such rights to escape a conviction for his criminal acts.”
“The test for overbreadth is whether the substantive limits of the statute sweep so broadly as to prohibit or discourage conduct protected by the constitution. The rights protected are usually found in the penumbras of the
first andninth amendments of theUnited States Constitution ....”
The defendant challenges the fornication statute as being an unconstitutional invasion of the right of privacy of individuals when intercourse occurs between consenting adults.
In the case at bar, the act of intercourse was not consensual by any stretch of the imagination. The victim testified repeatedly that the reason she submitted was because the defendant “told me he had a weapon and I did not want him to use it on me.” She testifiеd she earlier screamed three or four times and was crying. She testified she was shocked and afraid when defendant forced his way into her car, and the record shows she tried unsuccessfully to escape. Counsel for the defendant says that since the court did not find the defendant guilty of rape, it follows that the intercourse had not occurred by force or against the victim‘s will, implying thereby that she consented. The trial judge, after stating for the record what instruction he would have given a jury on what constitutеd rape, said: “I‘m not satisfied from my analysis of the evidence presented that the State has under the law applicable met its burden of proof to the quantum required, and that is beyond a reasonable doubt, and it would be simply rhetorical to say I am morally convinced that the defendant committed the act [rape] . . . .” The court found the defendant not guilty of rape but of the included offense of fornication. Statements the judge made at the time of sentencing, referred to below, show that the trial judge did not regard this as an act of sexual intercourse between consenting adults.
Since the trial court did not find the defendant guilty of rape, we are not called upon to comment on the sufficiency of the record, had such finding been made.
We conclude, therefore, that this defendant cannot challenge the fornication statute on constitutional grounds under any theory of consensual acts between adults, since the act here was clearly not consensual.
Counsel for the defendant directs our attention to Lovisi v. Slayton (D. C. Va. 1973), 363 Fed. Supp. 620. In that case, a challenge was made to the constitutionality of a Virginia statute proscribing acts of sodomy. Lovisi and his wife had engaged in such acts with a third person and claimed the statute proscribing acts of sodomy was unconstitutional as an invasion of the right of privacy. Mr. and Mrs. Lоvisi had permitted pictures to be taken of themselves in the act and the pictures had fallen into the hands of Mrs. Lovisi‘s children; the court held such acts thereby lost any character of being “private.” The court said, pages 623, 624:
“The Court is faced with the . . . question of whether, if the Lovisis’ conduct was not constitutionally protected, they may attack the constitutionality of [the statute] on the basis of the rights of third persons. . . . The Court . . . holds that they do not have standing to assert the constitutional rights of other persons and thus may not attack the constitutionality of statutes underlying their conviction on this basis.”
We agree with Lovisi and conclude that Byrd does not have standing to attack the constitutionality of the fornication statute.
The second question in this case is whether or not the trial court abused its discretion in the imposition of maxi-
“In my view the defendant has demonstrated that he is a continuing threat to the welfare of the community and the security of those who are members thereоf. I believe that he can be safely and accurately characterized as a beast of prey, and his activities in the space of approximately a week resulting in the charges here before the Court indicate that he is in need of that type of control and supervision which is available only under the most highly structured of circumstances. . . .
“Accordingly, by this defendant‘s conduct this Court deems it appropriate in his own interests, for his future rehabilitation, and in the interests of the protection of the members of this community, that the following sentences be imposed.”
We are of the opinion that the characterization by the court of the acts of the defendant are supported by the record. The trial court felt the sentences were necessary to protect the community, which is a proper factor to be considered in the imposition of sentences. Bastian v. State (1972), 54 Wis. 2d 240, 245, 194 N. W. 2d 687; Moore v. State (1972), 55 Wis. 2d 1, 9, 197 N. W. 2d 820.
This court in Gaddis v. State (1974), 63 Wis. 2d 120, 129, 130, 216 N. W. 2d 527, said:
“This court will modify a sentence only where there has been a clear abuse of discretion, and an аbuse of discretion will be found only where there is no rational basis for the sentence imposed, or where the rationale for the
sentence imposed is not either articulated in or inferable from the record.”
Here, the court clearly articulated the rationale for the sentences imposed. There was certainly a rational basis for these sentences in view of the record. We find no abuse of discretion.
The third question is whether or not the defendant should receive crеdit toward his sentences for the period of his preconviction incarceration. The defendant in his brief claims he was in jail for a period of eighty-two days from February 7, 1973, when he initially appeared, until May 1, 1973, when he was convicted and sentenced. The state raises the point that the record is not clear that he was actually incarcerated during this entire period. The issue was not raised before the trial court.
We hold that a defendant must be given credit for time spent in custody prior tо conviction to the extent such time added to the sentence imposed exceeds the maximum sentence permitted under the statute for such offense, provided such time spent in custody was a result of the criminal charge for which a prison or jail sentence is imposed or as a result of the conduct on which such charge is based, provided further that such custody was the result of the defendant‘s financial inability to post bail.
We agree with that part of the reasoning of the court in the сase of Culp v. Bounds (D. C. N. C. 1971), 325 Fed. Supp. 416, 419, holding that where the statutory maximum sentence is given the failure to give credit for preconviction time spent in custody violates the Equal Protection Clause of the
“North Carolina‘s failure to give Culp credit for time served before trial where petitioner has received a maximum sentence violates the Constitution . . .
. . . the fact that only those accused who are unable to raise bail are subjected to extra pre-trial incarceration when their prison time excеeds the statutory maximum (as with Culp) is an invidious discrimination against the poor in violation of the equal protection clause of the Fourteenth Amendment . See, e. g., Griffin v. Illinois, 351 U. S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956); Douglas v. California, 372 U. S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Tate v. Short, 401 U. S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971). . . .“. . . Culp should be given credit for time spent in custody prior to commitment where he has been given a maximum sentence. Pre-trial detention is nothing less than punishment. An unconvicted accused who is not allowed or cannot raise bail is deprived of his liberty. Fundamental notions of fair play . . . require that Culp receive credit for pre-commitment incarceration. . . .
“Alternatively, the state‘s refusal to give Culp credit for pre-trial detention is an unconstitutional discrimination on the basis of wealth prohibited by the
Fourteenth Amendment . As outlined above, wealthy defendants (except where no bail is allowed) are able to remain out of prison until conviction and sentencing; the poor stay behind bars.”
The United States Supreme Court has not dealt with this issue.4
The holdings in Cheney v. State (1969), 44 Wis. 2d 454, 171 N. W. 2d 339, 174 N. W. 2d 1, and State v. Tew (1972), 54 Wis. 2d 361, 195 N. W. 2d 615, that credit need not be given for preconviction incarceration where a maximum sentence is impоsed are overruled.
We further hold that in imposing any sentence, the court must, in exercising its discretion, take into con-
Because the record in this case is not clear as tо the time actually spent in custody by the defendant prior to conviction and whether or not it was due to financial inability to post bail, we remand the cause to the trial court for appropriate findings and a reduction of the maximum sentence imposed accordingly if the facts come within the rule enunciated in this opinion.
By the Court.—Judgment of conviction affirmed; judgment of sentence reversed; and cause remanded for further proceedings not inconsistent with the opinion.
ROBERT W. HANSEN, J. (dissenting). Predicting future events has become quite an indoor sport in this country, with some claiming a psychic ability to foresee the shape of things to come. A judicial variant of the pastime has become popular in legal circles. Particularly as to decisions of the United States Supreme Court, those playing the game do not stop with the rule of the case as enunciated and limited. Rather they speculate as to where the reasoning or inclination of the high court might next lead it to travel.
An opportunity, but hаrdly an invitation, to thus seek to peer into the future came when the United States Supreme Court held that an indigent defendant could not be confined beyond the maximum sentence specified by statute because of his inability to pay the monetary portion of his sentence.1 Such added time, beyond a
In thе cases dealing with the penalty of imprisonment on indigents solely because of their inability to pay a fine, there is no mention of or reference to pretrial confinement resulting from an inability or disinclination to post the bond set for release pending trial. The difference in the two situations is obvious. Bail is required, and constitutionally authorized,3 to insure the appearance of a defendant, charged with the commission of a crime, at trial.4 Incarceration for failure to pay a money fine
Three recent federal courts, all district court level, have sought, or sought to foresee, the applicability of the United States Supreme Court rulings on incarceration due to nonpayment of a fine to require pretrial detention being credited on a prison sentence. Two make the full trip, or nearly so.5 One of those two, in the southern district of Ohio, holds that “. . . where, for whatever reason, a defendant remains in jail prior to his trial he must be given credit on the statutorily fixed sentence ultimately imposed for all periods of actual confinement.”6 The other of the two, in the eastern district of Wisconsin, summarizes its holding as requiring “. . . that petitioner be credited with respect to the first period of preconviction detention resulting from his financial
What is wrong with all three district court level federal decisions, and wrong with the majority of our court electing to follow the even more cautiously limited and persuasively reasoned one of the three, is that none
On the issue raised as to good-time credit, the high court majority acknowledged that the defendants, who had been unable to post bail, had been disadvantaged as compared with defendants released on bail prior to sentence.15 Despite this finding of comparative disadvantage on the part of defendants unable to post pretrial bond, the high court majority rejected the constitutional challenge and upheld the New York State law, holding that such a state statute, even with such in-built disadvantage to nonbail posters, can further a legitimate state purpose.16
In upholding a state law that distinguished between prison time in serving a sentence and pretrial time spent in jail due to inability to post bond, and finding no constitutional infirmity in a resultant disadvantage as to defendants who remained in pretrial detention due to inability to post bond, the United States Supreme Court
It is not always safe to quote a dissenting opinion, or even a concurring one, as to what a court majority opinion said or meant to say. But, in the McGinnis Case, the two-Justice dissent, written by Mr. Justice WILLIAM O. DOUGLAS,20 helps make clear the issue involved and makes clear the contrasting and conflicting reactions to