*1 State ex rel. Michael J. Thorson,† Wisconsin
Petitioner-Appellant-Petitioner,
v. David H. Division of Schwarz, Administrator, Hearing Appeals, Respondent-Respondent. & Court
Supreme
24,
argument
No. 02-3380. Oral
March
2004. Decided
July
AbRahmson, C.J., dissents.
RoggensacK, J., dissents.
Sykes, J., part. took no For the there were petitioner-appellant-petitioner Olsen, and oral E. assistant argument by briefs Jefren defender. public state ar-
For the the cause was respondent-respondent Wren, attorney gen- G. assistant gued by Christopher Lauten- eral, Peggy with whom on the brief was A. attorney general. schlager, BRADLEY, 1. J. The petitioner, ANN WALSH
¶ Thorson, seeks of an unpublished Michael J. review a circuit court affirming decision of the court of appeals argues denying order sentence credit.1 He that he is credit for time at the Wiscon- entitled to sentence awaiting and trial sin Resource Center while evaluation sexually him a on a to commit violent (1999-2000).2 Chapter under Because we deter- Chapter mine that detention under 980 sat- custody" neither the "in nor "in connection with" isfies requirements 973.155, the sentence credit statute, we conclude that he is not entitled to receive Accordingly, requested credit. affirm we the deci- appeals. sion of the court of
HH 1, 1991, 2. On November Thorson was con- second-degree attempted victed of sexual assault imprisonment. years false He was sentenced to 13 mandatory prison, April 4, with a release date of 2000. Shortly release, before his scheduled State commenced an action to commit Thorson as a sexually person pursuant Chapter Thus,
violent custody, from instead released Thorson was (WRC) transferred to the Wisconsin Resource Center awaiting for further He remained there evaluation. Chapter petition. trial on the September jury 4. On determined proper that Thorson not a candidate for a 980 commitment because his mental disorder did not substantially probable *4 make it that he would commit 1 Schwarz, State ex rel. Thorson v. 02-3380, unpub No. (Wis. 2003) slip op. App. September (affirming lished Ct. an Gabler, County, order of the circuit court for Eau Claire William Judge).
2 statutory All are references 1999-2000 version of the Wisconsin Statutes unless otherwise noted. September 20, 2000, On of sexual violence.
future acts at after detained released on Thorson days. for 170 the WRC parole, While made substantial on April 2002, however,
progress In rehabilitation. in his began Department revocation of of Corrections the parole proceedings, alleging he had unauthorized that with a child. contact hearing, the administrative revocation 6. At the judge the rules of had violated found that Thorson
law Accordingly, parole. supervision he and revoked his his period of ten reincarcerated for Thorson to be ordered months. requested that revocation, Thorson After the days granted term of credit toward his
he be awaiting his at the WRC for time reincarceration judge denied law The administrative 980 trial. doing explained request. that he was not so, he "custody any credit"3 in a law that allowed aware of commitment in a civil case for detention criminal proceeding. appealed subsequently decision
¶ 8. Thorson (DHA). Hearings Appeals the Division conclusion of sustained the DHA administrator judge. the commit- administrative He law reasoned "[t]he legal separate proceeding matter and awas ment pending [Thorson] confined the court ordered fact that court and along the circuit Although parties, with in this case as one the issue appeals, describe court of used the term judge law credit," the administrative "sentence Assistant argument, the State instead. At oral "custody credit" proceeding that because Attorney explained General credit case. revocation, a true sentence "this is not out of arises calls Department of Corrections actually what This is case." credit *5 proceeding [did] the outcome of that not make that custody part of this case or entitle him to sentence credit for that confinement." July 9. On Thorson filed a challenging certiorari, a writ of the denial of sentence credit for time his at the WRC. The circuit court "[t]he Chapter proceeding concluded that was com- against variety menced Mr. Thorson for a wide only reasons, one of which was his conviction for second-degree sexual assault 91CF68. The reincar- ceration .. . had its roots in the criminal conviction nothing Chapter from 91CF68 and had to do with the proceeding." Accordingly, the court dismissed the ground Chapter writ on the that Thorson's 980 deten- tion not "in connection with the course of conduct imposed." for which the sentence was appeals ¶ 10. The court of affirmed the circuit Schwarz, court's order. State ex rel. Thorson v. No. (Wis. unpublished slip op. App. September 02-3380, Ct. 2003). appeals court, Like the circuit the court of held that Thorson's detention "was not in connection with the course of conduct for which his sentences were imposed." Id., 3. It further concluded that separate 980 commitments are "a civil matter" and that process the evaluation at the WRC was to determine civilly whether ¶ 4. Thorson should Id., be committed.4 II peti- 11. The issue in this case is whether a tioner, reincarcerated for a violation, is entitled appeals rejected The court of also process Thorson's due argument required fundamental fairness credit for the time Thorson, he was detained at unpublished the WRC. slip op. at pursue ¶ Because Thorson did not review, this issue on we do not address it here. spent in detention credit for time
to claim sentence *6 proceeding. during pendency Both of appeals in the and court of answered the circuit court negative, affirming the DHA. the decision of by of a revocation certio- 12. Our review (1) inquiries: rari limited to four whether (2) stayed jurisdiction; agency it its whether within (3) according law; whether its action was acted arbitrary, oppressive, representing unreasonable, its or (4) judgment; and whether the evidence will, not its might reasonably deter make the order or that it
such question. DHSS, 2d Ermen v. 84 Wis. mination in Van (1978). 57, 63, 267 N.W.2d inquiry present case, is focused In the our according to law when it the DHA acted
on whether inquiry rejected claim. of this Resolution application interpretation and of Wis. involves presents credit statute. It 973.155, the sentence independent appellate question review. of law Tuescher, 2d 595 N.W.2d v. 226 Wis. See State omitted). 1999) (citations (Ct. App.
HH 1—I1—I begin an examina- our discussion with 14. We governs sen- The statute 973.155. tion Wis. part: provides in and relevant tence credit Sentence credit. 973.155
(l)(a) given credit toward shall be A convicted offender days spent all or her sentence for the service of his the course of conduct custody in connection with in this subsec- imposed. As used sentence was tion, days custody" includes, "actual without enumeration, limitation confinement related to an ultimately sentenced, offense for which the offender is any arising or for other sentence out of the same course conduct, which occurs: trial; awaiting 1. While the offender is tried; 2. While the offender is and awaiting imposi- 3. While the offender is tion of sentence after trial. language
¶ 15. Under the the statute, two con- ditions must met in be order for a defendant to receive (1) sentence credit: the defendant must have been "in (2) custody" period question; period for the custody" "in must have been "in connection with the *7 imposed." course of conduct for which the sentence was 973.155(l)(a). Stat.§ Wis. We examine each of these requirements in turn. Custody
A. "custody" ¶ 16. The term is not in defined Wis. Stat.§ 973.155. fill void, To this Wisconsin courts have upon relied Stat.§ the definition set forth in Wis. 946.42(1)(a), escape e.g., statute. See State v. Magnuson, ¶¶ 19, 2000 WI 13-15, 233 Wis. 2d 40, 606 536; Gilbert, N.W.2d State v. 2d 371, 378-79, (1983); Cobb, N.W.2d511 State v. 181, 135 Wis. 2d (Ct. 1986). App. 184-85, 400 N.W.2d ¶ custody 17. The definition in Wis. 946.42(l)(a) provides part: in relevant (1) Escape. 946.42 In this section: (a) "Custody" includes without limitation actual cus- tody of an institution.... It does not include the custody probationer, of a parolee person or on extended by department of corrections or a supervision or officer or the supervision extended probation, custody has been released to aftercare person of a who in actual supervision under ch. 938 unless the is custody subject a confinement order under s. or is 973.09(4). Although
¶ the above definition is the neces- 18. determining "custody" sary starting point for sen- for only purposes, credit it is no means tence made clear that offenders consideration. This court has charge subject escape in order to be also to an must be "custody" purposes Magnuson, of sentence credit. for ¶¶ 1, 233 Wis. 2d 47. Magnuson, this court considered whether person placed in-home detention with electronic
a monitoring on "custody" pur- for sentence credit poses. Id., that "an offender's status 1. Wedetermined custody purposes credit when for sentence constitutes leaving escape charge to an offender bright Applying line rule, this we that status." Id. Magnuson's of release did not concluded that subject conditions escape charge did not him an and therefore custody. Id., ¶ 48. render him in agree parties present case, both In the the broad detention at the WRC satisfies custody 946.42. We too under Wis. definition parolees are not conclusion. While subscribe to this escape normally under the to be considered *8 custody at the in actual WRC. statute, Thorson was Department supported fact that the This is (DHFS) required Family to Health and Services institution." Wis. "as a correctional administer WRC Stat.§ 46.056(1). disagree parties is whether Where charge escape subject had he left the to an
Thorson was WRC without authorization. Thorson contends that absconding subjected from the him WRC would have 946.42(3)(a) Stat.§ escape under Wis. so as to entitle Magnuson. him to sentence credit under That statute specifies escape four situations in the crime (1) can occur: the defendant was under for a arrest (2) lawfully charged crime; the defendant was with a (3) lawfully crime; the defendant was of a convicted (4) crime; or the defendant was sentenced for a crime. (Ct. Scott, State v. 2dWis. 528 N.W.2d46 1995). App. yet fully Because Thorson had not been discharged sentence, from his he maintains that he charged escape could have been under the statute. problem argument ¶ 22. The with Thorson's is its underlying premise. Thorson was not detained at the attempted WRC because his sentence for second- degree imprisonment. Rather, sexual assault and false separate discretionary he was detained as a result of a Chapter decision to seek his commitment under Although sexually ¶ 23. violent offense serves as prerequisites initiating proceeding one of the specifies under 980, Wis. 980.02 addi- allegations accompany tional that must independent proceeding. order to initiate an These allegations include suffers from a mental disorder and that the disorder "creates a sub- probability engage stantial that he or she will in acts of 980.02(2)(b) (c). sexual violence." and Beyond ¶ 24. statute, text of the why offers more two reasons he was to an escape charge. First, Thorson notes that DHFS has adopted providing including rules for the force, use of prevent capture escapees force, lethal from the §§ WRC. See Wis. Admin. Code 95.04, HFS 95.05 and (March 2004). argues highly 95.06 He that it would be *9 escapes provide or that a who anomalous to subject escape attempts could be from the WRC charged escape not be with under lethal force but could Stat.§ 946.42. Wis.
¶ Second, Thorson contends that because 25. escape applies committed under to individuals statute defect) (mental Chap- Chapter or disease or mental (Sex Law), fully none of whom has ter 975 Crimes through stages process, passed all of the criminal apply escape to individuals must therefore also statute Chapter 980, under all of whom or committed detained underlying to the criminal sentence. are still argument. reasons aids Thorson's Neither of these department's of force rules on the use 26. Chapter committed under detained or individuals respect to the a contradiction with 980 do not create Many escape at the WRC have of those housed statute. Because of their of violent behavior. established records legislature approved characteristics, has adminis- of lethal allow, resort, the use rules that as last trative public. protect force to anomaly exist, it rests If does an escape court construe the that this
Thorson's insistence expose expansively. would Such a construction statute similarly defendants to situated himself and other explicitly charge not the statute does criminal contemplate. concerning argument commit- similarly Chapter Chapter 975 is 971 and under
ments Chapter Chapter unpersuasive. are 971 and Both escape specifically in the statute. referenced 946.42(3)(g). no sections, there is Unlike those incorporation 946.42. 980 into Wis. prosecutable escape We refuse to create a offense for *10 language that the clear of the statute not autho- does rize. sum, In while Thorson's at the status WRC 946.42(l)(a), under§ custody the
satisfied definition of escape charge it did not him leave vulnerable to an had he absconded from his confinement. the Because State prosecute escape, could not Thorson for his detention at qualify Magnuson being the does not WRC under in custody purposes for sentence Wisconsin's credit statute.
B. Connection with the Course of Conduct requirement ¶ 30. We address next the second the sentence credit statute that the time custody must be "in connection with the course of imposed."5 conduct Stat.§ for which sentence was 973.155(l)(a). judge, The administrative law appeals DHA, the court, circuit and the court of all held custody, that if Thorson were in it not "in was connec- tion with" the offense for which he was sentenced Chapter proceeding separate because a is a civil matter. phrase explic-
¶ 31. The "course of conduct" was itly appeals construed court of Tuescher. 226 possible There, Wis. 2d at 465. the court considered two interpretations phrase. of the One was that it should be broadly episode." read to mean "criminal Id. at 471. The 5 Additionally, Thorson that asserts his detention at WRC was "related to an for offense which sentence was im 973.155(l)(a). posed." Wis. Because Thorson did not previously present argument this to the appeals, court of however, we deem it waived. narrowly
other was that it be should construed to mean specific charge "the 'offense or acts' embodied in the defendant is sentenced." Id. Based on history prior of the statute and law, case the court adopted interpretation. the narrower Id. at 479.
¶ 32. brief, his contends specific offense that resulted his conviction and Chapter sentence is the same one on which his in the WRC were based. He notes that no new acts were committed that would enable the proceeding. State to commence a Further- more, Thorson asserts that his detention at the WRC factually connected to the conduct for which he was sentenced. argument, response *11 Yet, 33. at oral in description predicate offenses,
Schwarz's the acknowledged Thorson's counsel that "there are other predicate long ago discharged." acts from sentences petitions Chapter noted in Schwarz that 980 the con- serving operates for a a viction predicate defendant is as necessarily only offense, but it is not predicate Chapter petitions offense. 980 often refer to may qualifying other violations that be offenses.6 case, concluded: "In Mr. he Schwarz Thorson's has peti- qualifying Unfortunately another conviction. part tion is not of the record."
¶ instance, In "in 34. argument either connection assuming the mark. Even that with" misses qualifies "sentence," his time at the WRC a specific detained that his was not for offense caused original filing Chapter Rather, conviction. of a 980
6 qualifying purposes Chapter A 980 means offense for "sexually violent offense" as the term is defined Wis. 980.01(6).
13 Chapter the reason for his detention. 980 separate are civil matters. See State v. commitments Carpenter, (1995). 252, 258, 2d 541 105 197 Wis. N.W.2d Chapter proceedings It 980 are is true "enveloped on both criminal conduct." State v. sides Burgess, ¶71, 354, 262 2d 665 N.W.2d WI Wis. proceedings many 124. It also true that share such procedural the present and constitutional features same prosecutions. Curiel, in criminal State v. (1999). However, 2d these Wis. N.W.2d change why facts do not at the reason Thorson was WRC. problem A36. fundamental with Thorson's ar-
gument conceptually way is that there is no to distin- guish pretrial spent time from time detention following an actual commitment. addition to the predicate qualifying offenses, the detention time is probable on a cause determination that based disorder, detainee has a mental which creates a sub- probability stantial that he or she will reoffend. See 980.02(2) (3). commitment time is upon beyond based a determination reasonable doubt that the detainee has a mental disorder which creates probability substantial of future reoffense. accept If this court were to Thorson's "in argument,
connection with" all 980 confine- ments, commitment, whether for detention or *12 effect become an argument to the criminal His offset sentence.
integrates Chapter underlying 980 into the legislature proceedings, criminal result which specifically attempted preclude. sum, determine that deten- we Thorson's Chapter
tion at the neither the WRC under 980 satisfies custody" requirements "in "in nor connection with"
14 Stat.§ 973.155, the sentence credit statute. We according therefore conclude that the DHA acted to law rejected requested when it ingly, Thorson's credit. Accord- appeals. we affirm the decision of the court of By appeals the Court.—The decision of the court of is affirmed. part. SYKES, 39. DIANE S. J. took no (dissent- ABRAHAMSON, 40. SHIRLEY S. C.J.
ing). Stat.§ I conclude that 973.155, under Wis. granted sentence credit statute, Thorson should be 170 days for credit toward his term of reincarceration for awaiting time in WRC evaluation and trial under ch. 980. involuntarily
¶ 41. Thorson was institutionalized days. in WRC the State for the 170 WRC is listed as prison;1 Department Family a state of Health and required Services is to administer WRC a correc- employees tional institution and the at are em- WRC ployees Department of the If Corrections.2 Thorson custody during days, was not in this 170 who ever is custody? permission, If Thorson left WRC without kindly state would not look on his move. statute interpreted should be as written. Although possible
¶ 42. held Thorson was ch. proceedings, prove 980 State failed to Thorson a ch. period 980 committee. at WRC inwas connection with the course of conduct for which imposed. Chapter pro- his criminal sentence was 980 ceedings rely heavily justice system. on criminal proceedings triggered by are a criminal sexually sexually conviction for a violent offense. The 302.01(l)(a). See Wis. 46.056(1)(2). See Wis. *13 of conduct that the course offense was both violent prison the course of sentence and in his resulted petition. ch. 980 the for the conduct that was basis opportunity prove sought ¶ to 43. The State sexually pursuant ch. 980 and to violent Thorson was addressing precluded from his case board Roggensack's days. agree dissent I with Justice 170 "[flundamental the State to be should cause fairness days grant required that the credit for 170 to sentence to be held at WRC."3 caused Thorson State I forth, dissent. 44. For the reasons set (dissent- ROGGENSACK, D. J. 45. PATIENCE period ing). credit for In order to receive sentence filing petition and of the ch. 980 time between the parole, on which release Michael J. Thorson's release jury that the State failed to determination followed prove sexually person, Thorson must he was a violent custody in connection with his he was in show that away if from his and that he walked criminal conviction subject prior parole, he would have been confinement Magnuson, escape charges. ¶ 25, WI 19, 2000 State v. 536; Gilbert, v. 2d 606 N.W.2d State 233 Wis. (1983). I conclude that 2d 340 N.W.2d only provided filing petition an of the ch. 980 custody, continued additional reason for Thorson's negate the State's which reason did not the course of conduct for connection with Accordingly, imprisoned. Thorson would he was charge place escape if he left his to an have been permission. Therefore, I also of confinement without for the entitled to sentence credit conclude that he is filing period of the ch. 980 of time between dissent, Roggensack's Justice parole. majority and his release on As the concludes respectfully otherwise, I dissent.
I. BACKGROUND ¶ 46. In 1991, Thorson was sentenced to a thirteen-year prison attempted sentence for second- degree imprisonment. sexual and assault false His mandatory April serving 4, release date was 2000. After years days prior sentence, nine of that and within 90 mandatory petition date, his pursuant filed release the State a Stat.§
to Wis. 980.021 to Thorson have com- sexually person. a mitted as violent Instead of parole, on released Thorson was transferred to the (WRC). Wisconsin Resource Center The State held days Thorson for 170 until its ch. 980 petition September jury 16, was On 2000, resolved. a proved found that the had not State Thorson was a sexually person, September violent and on 20, 2000, the parole. released on State Thorson May 2002, the State revoked Thorson's period and reincarcerated him for a of ten Hearing of months. Thorson asked Division (DHA) Appeals grant him sentence credit for the 980.02(2) provides part: Stat.§ in relevant Wisconsin allege A that filed under this section shall all of the following apply alleged sexually person to the to be a violent person: (a) any person following The of criteria: satisfies sexually person 1. The convicted a violent offense. has been of (ag) discharge release, days or is within on parole,... imposed from a a conviction sentence for sexually violent offense.... spent him credit. The DHA denied the WRC. he at time appeals affirmed and court circuit court Both the petitioned review. court for this that decision.
II. DISCUSSION of Review A. Standard to sentence Thorson is entitled 48. Whether requires he at WRC the time
credit for application statute, Wis. credit sentence of Wisconsin's question Statutory application 973.155. Tuescher, 226 Wis. State v. review de novo. that we law 1999). (Ct. App. 468, 2d 595 N.W.2d Credit Statute 973.155—Sentence B. Wisconsin appeal requires Deciding us to *15 973.155(l)(a) pro- Stat.§ apply Section 973.155. Wis. vides: toward the given credit offender shall be
A convicted days spent in for all his or her sentence service of of conduct for with the course custody in connection in this subsec- imposed. As used was which sentence includes, tion, custody" in without days spent "actual enumeration, to an confinement related by limitation sentenced, ultimately the offender is offense for which arising out of the same course any sentence or for other conduct, occurs: trial; awaiting offender is 1. While the tried; and the offender is While awaiting imposition the offender is 3. While after trial. sentence plain previously concluded that have 50. We requires Stat.§
meaning
that sentence
973.155
of Wis.
only
granted
is "in
an offender
for time when
credit be
custody"
is "in
that
connection with the course of
imposed."
conduct for which sentence
Gilbert,
See
(stating
973.155(1)(a),
¶ 51. Wisconsin define "in 973.155 does not custody." portion However, we have examined this of the previously, phrase statute and have concluded that the custody" purposes "in of the sentence credit statute meaning "custody" has the same the definition of escape statute, Gilbert, 946.42. 115 Wis. Magnuson, 378-79; 2d at 233 Wis. 2d 13. Section 946.42(l)(a) "custody" defines as follows:
"Custody" includes without limitation actual cus- tody of an institution.... It does not include custody probationer, parolee person of a or on extended supervision department of corrections or a probation, supervision extended or officer or the of a who has been released to aftercare supervision juvenile justice under ch. [the code] *16 in custody subject unless the is actual or to a is 973.09(4). confinement order under s. added). (emphasis question
¶ 52. There is no that in Thorson was Stat.§ custody, as defined in the 946.42, Wis. as WRC custody him, confined and therefore was in of he "actual 19 majority, agree parties, and the an Id. Both institution." majority Majority op., point. However, the on this custody points that in actual does out analysis. Citing Magnuson, custody not end majority ¶ 25, determines that Thorson 40, 2d subject escape charge leaving an for that must be also custody. Majority op., ¶ 18. requested Magnuson, the defendant sen- subject months he was
tence credit for the six that monitoring part and electronic home-confinement agreed the circuit court conditions. We with his bond Magnuson appropriately denied sentence that Magnuson, 2d 40, 1. We determined credit. 233 Wis. custody constitutes for sen- that "an offender's status subject purposes the offender is to an tence credit when charge leaving concept escape for that status." Id. expand important us to because it allowed "status" custody we used in Gilbert so that we the definition and include restrictive situations" could "other custodial specifically escape in the are not enumerated Id., and that after we decided Gilbert.2 statute arose ¶¶ that an offender is Therefore, 26-31. we concluded escape to an the offender is whenever any Stat.§ charge 946.42 or under "other under Wis. statutory legislature provisions has classi- and custodial fied certain situations as restrictive and Among the restrictive situations" we other "custodial Magnuson community residential named were confine (Wis. 301.046(1)), § intensive sanctions program ment Stat. (Wis. (Wis.. 301.048), Stat.§ detention program home (Wis. 302.425), 303.10), camp Stat.§ Stat.§ county work (Wis. 303.065), plan prison release inmates work (Wis. 938.538). juvenile program the serious offender Magnuson, 26-31, 40, 2d State v. 233 Wis. ¶¶ 2000 WI N.W.2d 536.
attaching escape charges depar- for an unauthorized Id., ture from those situations." 26. my Magnuson In view, we need not use to custody purposes
conclude that in Thorson was for of custody the sentence credit because statute Thorson's type specifically was in listed Wis. 946.42(l)(a). regard circumstances custody Gilbert, to are similar to those which case question regarding controls before us the definition custody" purposes of "in for of sentence when the credit custody offender is a ch. 980 detainee in the actual of an apply Therefore, institution. I would Gilbert when the custody, Magnuson offender is in actual and to circum- type stances where an offender is not of a 946.42(l)(a). § listed in Gilbert, the defendants each had been periods part
incarcerated for short
as
of time
of their
probation
Gilbert,
conditions.
dant must also be to an custody. leaving did not We need to do so. As the actually defendants in Gilbert were an confined within they permission institution, if lawful left "without authority," they escape or an would have been 946.42(3).3 con- I would Accordingly,
charge. that Gilbert controls issue here "custody" clude *18 in within an institution custody because Thorson was a crime and one convicted of also in as two capacities: as a ch. 980 detainee. Gilbert, in holding to Thorson According our
¶ 946.42(l)(a) Stat.§ and under custody sen- therefore, "custody" requirement satisfied Furthermore, Stat.§ 973.155. under Wis. tence credit we must use agree I do not that even though analyze to "escape requirement" Magnusoris Magnuson, Thorson would be I to situation, apply were as he that requirement "in because satisfies custody" well. asserts, that Wis. true, It as the majority is 946.42(l)(a) person escapes does not list a who
Stat.§ as one who is commitment under ch. 980 from 28. How- escape charge. Majority op., to an subject is a ch. 980 committee. This so ever, Thorson was never when the process completed, the ch. 980 is because until to a ch. or determines that the jury person court the court sexually is a violent and person 980 petition custody to the person commits actually Services, that person of Health and Department Family 980.06. is not civil committee. Wis. filing petition, to a ch. 980 58. Prior the State's to due sentenc- custody
an offender's status is one files that the State ing for a crime. offender under ch. 980 is based to commit an attempt 946.42(3) § provides part: in relevant Stat. Wisconsin custody intentionally escapes A who from felony: following guilty any is of a... of the circumstances under (a) for, legal lawfully charged with or Pursuant to a arrest or for a crime. convicted of sentenced very on the conviction for a sexual crime—the convic- serving tion for which the offender a sentence. Wis. Stat.§ 980.02(2)(ag). That Thorson's status as an incar- during cerated felon continued his detention for the ch. proceedings apparent becomes when we notice that prove sexually after the even State failed to that he was violent, Thorson remained incarcerated. He was re- days jury leased several verdict, reached its after only after but commission authorized the 304.06(1). release. See Wis. majority
¶ 59. The views Thorson's status as if he only explains were a committed sexual offender and exposing similarly it fears those escape charges situated to criminal when it believes statutory authority majority there is no do so. See *19 op., exposing ¶¶ 27-28. The basis for violent sexual pending who offenders are detained due to ch. 980 petitions charges, escape however, to is not ch. the petition, original but their criminal convictions.
¶ I 60. note that charged one effort to show Thorson escape, majority asserts, could not be with legislature approved "the has administrative rules that protect allow, resort, as a last the use of lethal force to public." Majority op. provision ¶ 26. However, majority I refers, which assume the Wis. Admin. 95.06(l)(c)l.d. (Feb., 2002), § Code HFS authorizes the prevent escape amount of force that can be used to an majority from the WRC. The does not address the consequences attempt. escape is, of successful That if attempts escape a ch. 980 detainee from the WRC and notwithstanding, majority succeeds, lethal force argue escaped cannot that the detainee no would suffer apprehended. Undoubtedly, consequences once he is he charged offense, would be I with criminal which escape. conclude is 946.42. Wis. Section HFS 95.06(l)(c)l.d. provision parallel no more than a 306.07(4)(d) 2001), (Aug., § DOC Code Admin. "deadly prevent permits force" to an of use custody Department escape of the in the of one who is of Corrections. Accordingly, that even un- I conclude would Magnuson, majority's Thorson was of
der the custody use escape to an have been as he would charge he had not been released left because had he filing original prior to the ch. sentence from his peti- during detention while that nor his pending. Therefore, Thorson satisfies the first tion was credit. 973.155 sentence condition under Wis. credit, Thorson's However, in order to receive sentence must "in connection with the time in also be im- for which sentence was course of conduct" same posed.
2. In connection with 973.155, Stats., is to "The clear intent of sec. day custody regardless grant of the credit for each long it is connected to the confinement as basis for imposed." Gilbert, 115 for which sentence is the offense majority argues that Thorson's at Wis. 2d 380.4 "in his at the WRC was not connection with" time the reason for his detention was the because offense specific filing petition, the ch. 980 not the facts his reasoning Majority op., fails to 34. This offense. acknowledge *20 petition filing of ch. ex- that the a 980 4 instance, a provide In court did that defendant one this charged kidnapping was entitled to attempted with who was hospital for the time he a state sentence credit a deviate exam under Wis. pursuant court-ordered sex State, 617, 642-44, 286 92 Clark v. Wis. 2d N.W.2d 975.02. (1979). 344
24 pressly recognizes serving that an offender is still time Stat.§ 980.02(2)(ag) (requiring for a sexual crime. Wis. petition seeking against civil a commitment an offender days discharge be to made within 90 of an offender's imposed sexually from a sentence for the conviction of a crime). ability Therefore, violent the State's to file a ch. petition directly 980 arises from the same set of facts from which Thorson's criminal and conviction incar- holding only ceration arose. that reason an proceeding offender is to a ch. 980 is because the petition, majority's inappro- State filed a rationale priately petition original severs ch. 980 from the majority op., ¶ offense.5 See 34. This severance is contrary explicit language § 980.02(2)(ag), to the requires which connection. majority points
¶ 63. The also out ch. that 980 separate proceedings Majority op., are civil matters. Carpenter, ¶ 34. See v. State 197 Wis. 2d (1995). why precludes N.W.2d 105 But this offenders receiving petition from sentence credit when a ch. 980 here, Where, fails is unclear. has offender met the majority petition asserts the State's warranted offenses, had other predicate because Thorson committed discharged, sentences for which had been would which have qualified for a ch. had petition petition been filed. then, majority op., According majority, See to the merely predicate Thorson's most recent offense was another therefore, on to base offense which sufficiently detention at the WRC was not connected to the specific imposed. majority op., crime for sentence was See logic recognize event This fails to that ¶¶ necessary component resulted in Thorson's was a incarceration petition. 980.02(2)(ag). the ch. 980 See Wis. *21 requirements and the of the sentence credit statute grant sen- fails, the offender the State should tence credit. majority grant Furthermore, the fears that 64.
ing
in "all
credit will result
Thorson sentence
for
or for
it is
detention
confinement,
whether
[to]
offset to the
commitment,
in effect become an
again,
Majority op., ¶
37. Once
criminal sentence."
distinguishing
majority
it is not
demonstrates that
and a convicted criminal.
a committed offender
between
under ch.
his or
Once a
is committed
See id.
ends,
as
and that
individual's
her status
a criminal
begins. It
this
sex
is at
as a committed
offender
status
point,
occurs, that sentence
when civil commitment
against
original
longer
no
be
can
offset
credit
confinement is
because the offender's
criminal sentence
longer
criminal,
as
committee who
no
but
punishment.
v.
treatment,
See State
confined for
not
(Ct. App.
Keith,
2d
which should be that is served understand the State interest days years remaining crediting on not to the opportunity had to The State Thorson's sentence. prove sexually attempt violent, to addressing doing, precluded board from so it say in the Thorson had no matter. Thorson's case. State to be fairness should cause the Fundamental days grant required for credit that the sentence held at State caused Thorson be WRC.
III. CONCLUSION foregoing I reasons, For conclude that granted have been sentence credit Thorson should days apply the 170 he at the WRC. I would this *22 against remaining sentence credit the time on his majority sentence as a whole. Because the concludes respectfully otherwise, I dissent.