State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Cesar Antonio Lira, Defendant-Appellant.
2019AP691-CR & 2019AP692-CR
SUPREME COURT OF WISCONSIN
November 18, 2021
2021 WI 81
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 394 Wis. 2d 523, 950 N.W.2d 687 (2020 - unpublished) Oral Argument: September 27, 2021 Source of Appeal: Circuit Court, Milwaukee County, Judge Frederick C. Rosa
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion for a unanimous Court.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs filed by Jacob J. Wittwer, assistant attorney general; with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Jacob J. Wittwer.
For the defendant-appellant, there was a brief filed by Christopher P. August, assistant state public defender. There was an oral argument by Christopher P. August.
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Cesar Antonio Lira, Defendant-Appellant.
FILED NOV 18, 2021
Sheila T. Reiff Clerk of Supreme Court
ZIEGLER, C.J., delivered the majority opinion for a unanimous Court.
REVIEW of a decision of the Court of Appeals. Reversed.
¶2 Lira argues that he is entitled to sentence credit against his 1992 and 1999 sentences for time he spent incarcerated in Oklahoma between 2006 and 2017. According to Lira, he was “made available” to Oklahoma and, under
receive credit for time he spent detained in Wisconsin and Texas from 2005 to 2006.
¶3 Both
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 Over the course of 13 years, Lira transited thousands of miles while fleeing government authorities and committed seven separate offenses in two states. The facts, as shown by the record and agreed upon by the parties, are stated below.
¶5 In July 1992, the Milwaukee County circuit court sentenced Lira to 10 years’ imprisonment for possession of cocaine with intent to deliver, and he was released on parole in September 1996. Over two years later, in January 1999, Lira was arrested on separate charges. According to the 1999 criminal complaint, Lira was charged with being a felon in possession of a firearm, conspiring to deliver cocaine, obstructing or resisting an officer, and possessing with intent to distribute tetrahydrocannabinols. Lira‘s parole supervision in the 1992 case was revoked as a result of the 1999 charges.
¶6 Lira pleaded guilty in May 1999 to being a felon in possession of a firearm and conspiring to distribute cocaine. In December 1999, the Milwaukee County circuit court sentenced Lira to two years in prison for being a felon in possession of a firearm. For the conspiracy charge, the court imposed and stayed a sentence of 16 years imprisonment and placed Lira on probation for 12 years concurrent with his incarceration. In January 2001, Lira was released from prison and was placed on court-ordered supervision for both the 1992 and 1999 cases—parole for the 1992 case and probation for the 1999 case.
¶7 As a condition of his release, Lira was required to report regularly to a Department of Corrections (“DOC“) agent overseeing his supervision. In November 2002, the DOC agent attempted to take Lira into custody for alleged violations of his conditions of release, namely, traveling to Illinois without the agent‘s permission and possessing $55,000 in cash. In response, Lira fled from the agent‘s office and escaped.
¶8 Lira‘s whereabouts remained unknown until January 6, 2004, when Lira was arrested by Wisconsin Department of Justice agents and was taken into custody. On January 9, 2004, parole and probation holds were placed on Lira for the 1992 and 1999 cases. Lira was also charged with endangering safety by use of a dangerous weapon.
¶9 While being transported to a medical appointment on April 15, 2004, Lira fled officers and escaped in an awaiting vehicle with his girlfriend. As a result, Lira was charged with escape. The next day, on April 16, 2004, Lira‘s parole and probation were revoked. The stay of the 16-year sentence in the 1999 case was removed, and Lira‘s reconfinement for the 1992 case was ordered.
¶10 Meanwhile, Lira was driving with his girlfriend and her child to Oklahoma. Once in Oklahoma, on April 16, 2004, Lira initiated a high-speed car chase with police. Lira ran a road block and crashed the vehicle he was driving. His girlfriend died as a result of the collision. That same day, Oklahoma police arrested Lira. He later pleaded guilty to second-degree murder, eluding police, running a roadblock, and child abuse/neglect. On September 29,
¶11 On or about May 22, 2005,5 Oklahoma transferred Lira to Wisconsin on detainer to face his 2004 charges of endangering safety and escape. On June 15, 2005, Lira was released by mistake.6 Again, Lira fled south, and on December 13, 2005, he was arrested in San Antonio, Texas. Wisconsin filed a new charge of bail jumping against Lira, and Lira was returned to this state on January 11, 2006.
¶12 On March 17, 2006, after entering into a global plea agreement on the 2004 charges of endangering safety and escape and the 2005 charge of bail jumping, the Milwaukee County circuit court sentenced Lira to three years of incarceration and three years of extended supervision, both to be served consecutive to his Oklahoma sentence. Pursuant to the Interstate Agreement on Detainers (“IAD“), entered into by both Oklahoma and Wisconsin,7 Wisconsin returned Lira to Oklahoma on April 5, 2006, to complete the remainder of his Oklahoma sentence. Lira remained in Oklahoma until his sentence there was completed on June 9, 2017. He was soon thereafter transported to Wisconsin to complete his sentences for the 1992 and 1999 cases and the 2004 and 2005 cases. On June 16, 2017, he arrived in Wisconsin.
¶13 In September 2017, Lira filed a pro se motion for sentence credit against his sentences in the 1992 and 1999 cases. He argued that, under
¶14 In January 2018, Lira filed a second pro se motion for sentence credit under
remedies with the DOC. The circuit court denied the motion on the merits, reasoning that the Oklahoma sentence was separate and distinct from the 1992 and 1999 cases, and that Lira had already received sentence credit in Oklahoma for the time spent in custody in that state. After obtaining appointed counsel, Lira appealed to the court of appeals. However, Lira voluntarily dismissed the appeal in favor of filing with advice of counsel a more complete motion for sentence credit with the circuit court. On July 27, 2018, the court of appeals dismissed Lira‘s appeal.
¶15 In October 2018, by appointed counsel, Lira filed a third motion for sentence credit. He again argued that under
¶16 In November 2018, Lira filed a motion for reconsideration, arguing that he in fact did request sentence credit from the DOC. Lira also provided additional documentation to assist in the circuit court‘s inquiry. On March 25, 2019, the
circuit court denied the motion for reconsideration. The circuit court reasoned that under
¶17 On September 29, 2020, the court of appeals issued a decision affirming in part and reversing in part the circuit court‘s order. Lira, Nos. 2019AP691-CR & 2019AP692-CR. First, the court of appeals concluded that Lira properly exhausted administrative remedies and his request for sentence credit was not foreclosed. Id., ¶¶19-21. The State did not appeal this determination.
¶18 Next, the court of appeals concluded that as a “convicted offender” Lira was not “made available” under
22, 2005, while in Oklahoma custody. Lira did not appeal this conclusion.
¶19 The court of appeals continued and held that Lira was entitled to sentence credit for the entire time spent in Oklahoma custody between April 5, 2006, and June 9, 2017. Id., ¶¶33-35. Citing its published decision, State v. Brown, 2006 WI App 41, 289 Wis. 2d 823, 711 N.W.2d 708, the court of appeals held that because the State turned Lira over to Oklahoma officials on April 5, 2006, Wisconsin had “made [Lira] available to another jurisdiction” under
¶20 The State filed a petition for review with this court, challenging the court of appeals’ conclusion that sentence credit was due in the 1992 and 1999 cases for Lira‘s time spent incarcerated between May 22, 2005, and April 5, 2006, and between April 5, 2006, and June 9, 2017. We granted the petition on January 20, 2021.
II. STANDARD OF REVIEW
¶21 In this case, we are asked to interpret Wisconsin statutes. “Interpretation
circuit court and the court of appeals.” Estate of Miller v. Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759.
¶22 “[S]tatutory interpretation begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry. Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations and quotations omitted). Furthermore,
statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.
Id., ¶46 (citations omitted).
III. ANALYSIS
¶23 Lira argues, and the court of appeals agreed, that he is entitled to sentence credit for his 1992 and 1999 convictions under
5, 2006. The State contests both these points, and we will address the issues in turn.
¶24 Notably, on appeal, Lira does not seek sentence credit for time spent in Oklahoma custody prior to his transfer on detainer to Wisconsin in May 2005. Sentence credit for time spent in Wisconsin from January to April 2004, prior to Lira‘s escape to Oklahoma, is also not in dispute. Further, sentence credit for his 2004 and 2005 Wisconsin convictions is not at issue in this case. The court is not asked to apply credit as to Lira‘s pre-sentence or post-sentence confinement for his endangering safety, escape, and bail jumping convictions.
¶25 As explained below, we reverse the court of appeals. Lira is not entitled to sentence credit in the 1992 and 1999 cases for his incarceration between May 22, 2005, and April 5, 2006, and for his incarceration between April 5, 2006, and June 9, 2017. During that period, Lira‘s time in custody was not “in connection with the course of conduct for which [the 1992 and 1999 sentences were] imposed.”
A. Time Spent in Oklahoma Between April 2006 and June 2017.
1. The Statutory Text
¶26
large “shall not be computed” as service of the sentence.
A convicted offender who is made available to another jurisdiction under ch. 976 or in any other lawful manner shall be credited with service of his or her
Wisconsin sentence or commitment under the terms of s. 973.155 for the duration of custody in the other jurisdiction.
¶27 The statute quoted above explicitly references, and ties its obligations to,
¶28 Section 973.155 is titled “Sentence credit” and includes provisions detailing when sentence credit is due,
interpretation.” (cleaned up)); Kalal, 271 Wis. 2d 633, ¶46 (“[S]tatutory language is interpreted in the context in which it is used . . . .“). Wisconsin statutes repeatedly cite and refer back to
¶29 Section 973.155 sets a basic rule for sentence credit determinations: a defendant will receive credit for time spent incarcerated when that time has a factual connection to the offense for which he or she was convicted. “Sentence credit is designed to afford fairness so that a person does not serve more time than that to which he or she is sentenced.” State v. Obriecht, 2015 WI 66, ¶23, 363 Wis. 2d 816, 867 N.W.2d 387; see also State v. Marcus Johnson, 2007 WI 107, ¶¶35-36, 304 Wis. 2d 318, 735 N.W.2d 505 (explaining the background of
days spent in custody in connection with the course of conduct for which sentence was imposed.” This court has interpreted this provision to include two requirements: “(1) the defendant must show that the defendant was ‘in custody‘; and (2) the defendant must show that the custody was ‘in connection with the course of conduct for which the sentence was imposed.‘” Friedlander, 385 Wis. 2d 633, ¶23 (quoting
¶30 In line with the fairness principles underlying sentence credits and
¶31 Despite these principles at the core of Wisconsin‘s sentence credit law, Lira now argues, even though he was convicted in a separate state for conduct completely unrelated to his 1992 and 1999 Wisconsin convictions, that he is entitled to over 11 years of sentence credit for his Wisconsin offenses. The law does not countenance this result.
¶32 It is uncontested that Lira‘s 1992 and 1999 criminal activities did not have a factual connection to Lira‘s evading police in Oklahoma on April 16, 2004, crashing his car, and in the process, killing an individual and endangering a child. Lira admits that he is unable to meet the standard established under
¶33 It is also undisputed that Lira‘s Wisconsin sentences ran consecutively to his Oklahoma sentences. On April 16, 2004, Lira‘s parole in his 1992 conviction was revoked, and the stay was lifted for the sentence in his 1999 conviction. From that time onward, Lira was required to serve the period of incarceration due in the 1992 and 1999 cases regardless of new offenses he may have committed in 2004 and 2005. Thus, under Boettcher, 144 Wis. 2d at 100, Lira is not entitled to dual credit against both his Oklahoma
sentence and his 1992 and 1999 Wisconsin sentences for time spent incarcerated in Oklahoma.
¶34 Lira‘s statutory argument relies on an exceedingly narrow, and ultimately unconvincing, reading of
¶35 However, even if a “convicted offender” is “made available to another jurisdiction,” under
2. Arguments raised by Lira and the State.
¶36 Lira argues that this plain reading of
¶37 But it was the legislature‘s choice to require sentence credit under
¶38 It is true that when interpreting statutes, courts should strive to “avoid surplusage.” Id. “We are to assume that the legislature used all the words in a statute for a reason.” State v. Matasek, 2014 WI 27, ¶18, 353 Wis. 2d 601, 846 N.W.2d 811. However,
finding shall be included in the judgment of conviction.“). Further,
¶39
¶40 To the extent that some surplusage exists, it is well accepted that redundancy occurs in statutes. The mere existence of repetition cannot contravene plain language.
Wis. 2d 633, ¶46 (“Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage” (emphasis added).); Milwaukee Dist. Council 48 v. Milwaukee County, 2019 WI 24, ¶17 n.10, 385 Wis. 2d 748, 924 N.W.2d 153 (“Even if a plain meaning interpretation creates surplusage, sometimes legislatures do create surplusage and redundancies of language, and therefore the canon against surplusage is not absolute.“); Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 176 (2012) (“Put to a choice, however, a court may well prefer ordinary meaning to an unusual meaning that will avoid surplusage.“). Notably, Lira‘s interpretation of
¶41 Lira also claims that this court must accept his legal reasoning because it is supported by published precedent from the court of appeals. We have never addressed whether
¶42 The court of appeals in this case cited State v. Brown, 289 Wis. 2d 823, as binding precedent. See Lira, Nos. 2019AP691-CR & 2019AP692-CR, ¶¶23, 33-35. In Brown, a Wisconsin probationer had his probation revoked but, before beginning his Wisconsin sentence, he was transferred to federal authorities for separate federal offenses. 289 Wis. 2d 823, ¶3. The defendant in Brown completed his federal sentence and was transferred back to
Wisconsin authorities; he then moved for sentence credit for his time spent in federal prison. Id., ¶¶5-7. According to the court of appeals, the government argued that because a revoked probationer‘s sentence does not begin until “the probationer enters the prison,”
¶43 As explained above, the interpretation of
¶44 However, Lira asserts that, even if Brown were “wrongly decided,” this court must accept its legal analysis as a matter of precedent. It is undoubtedly true that “[o]fficially published opinions of the court of appeals . . . have statewide precedential effect.”
¶45 While respecting court of appeals precedent is an important consideration, it is not determinative. This court has never applied the five factors commonly used in a decision to overturn supreme court caselaw to override an interpretation derived solely from the court of appeals. See Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216 (describing the five factors).10 Further, we have shown a repeated willingness to interpret and apply the law correctly, irrespective of a court of appeals decision that came to a different conclusion. See, e.g., State v. Ziegler, 2012 WI 73, ¶54, 342 Wis. 2d 256, 816 N.W.2d 238 (withdrawing language from a published court of appeals decision as precedential value because it was “contrary to the plain language of [a] statute“); Manitowoc County v. Samuel J.H., 2013 WI 68, ¶5 n.2, 349 Wis. 2d 202, 833 N.W.2d 109 (concluding that language from a published court of appeals decision must be withdrawn because it “directly conflict[ed] with the plain language of [a] statute“); Wenke, 274 Wis. 2d 220, ¶¶76-77 (overruling a published court of appeals decision “that incorrectly interpreted [a statute]“).
¶46 Ultimately, while “published opinions of the court of appeals are precedential,” as the state‘s highest court, the supreme court “has the power to overrule, modify or withdraw language from a published opinion of the court of appeals.” Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). “The supreme court, ‘unlike the court of appeals, has been designated by the constitution and the legislature as a law-declaring court.‘” Id. at 189 (quoting State ex rel. La Crosse Tribune v. Cir. Ct. for La Crosse County, 115 Wis. 2d 220, 229-30, 340 N.W.2d 460 (1983)). It is this court‘s responsibility to interpret statutes de novo, and a plain meaning reading of
¶47 Despite arguing forcefully against Lira‘s position before the circuit court, the
¶48 First, we note that the State‘s change in legal position is not binding upon the court. “[W]e are not bound by the parties’ interpretation of the law or obligated to accept a party‘s concession of law. This court, not the parties, decides questions of law.” Carter, 327 Wis. 2d 1, ¶50. As this court explained, an individual may receive sentence credit under
¶49 Furthermore, the State‘s concern is misplaced. The court is in no way interpreting or applying the IAD, codified under
During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence allows.
¶50 The IAD provision could apply only if Wisconsin had transferred Lira to Oklahoma on detainer to face sentencing in Oklahoma. Here, it was Oklahoma that transferred Lira to Wisconsin to face sentencing on Wisconsin charges.11 We are asked to interpret
¶51 In fact, the interpretation of
¶52 In all, Lira is not entitled to credit toward his 1992 and 1999 convictions for the time spent in Oklahoma serving consecutive sentences for unrelated offenses.
¶53 Lira also argues that under
¶54
The sentence of a revoked probationer shall be credited with the period of custody in a jail, correctional institution or any other detention facility pending revocation and commencement of sentence according to the terms of s. 973.155.
¶55 Lira argues that he was a “revoked probationer” who, between May 2005 and April 2006, was in custody “pending revocation and commencement of his sentence.” However, like
¶56 The parties do not dispute that Oklahoma transported Lira to Wisconsin in May 2005 to face pending charges for endangering safety and escape. See also Lira, Nos. 2019AP691-CR & 2019AP692-CR, ¶8 (“In mid May 2005, Oklahoma sent Lira to Wisconsin to face trial on his outstanding Wisconsin charges.“). Although Lira was inexplicably released and fled to Texas in the process, he eventually pleaded guilty to the 2004 and 2005 charges in Wisconsin. He was sentenced on March 17, 2006, and, expectedly, he was transported 19 days later to Oklahoma in order to complete the remainder of the Oklahoma sentence. At no point in time was Lira brought to and confined in Wisconsin or Texas because of or on the part of the revocation order in the 1992 case, or the removal of a stay in sentence in the 1999 case. Lira was not transported to Wisconsin to serve his 1992 or 1999 sentences. He was an Oklahoma prisoner sent to face trial on factually unrelated charges initiated in 2004 and 2005. There is no dispute that the convictions for endangering safety, escape, and bail jumping are not factually connected to “the course of conduct for which [the sentences for the 1992 and 1999 drug and firearm offenses were] imposed.”
¶57 The court of appeals granted Lira credit against the 1992 and 1999 sentences for his time in Wisconsin and Texas while on detainer because the 2004 endangering safety charge precipitated the revocation in the 1992 case and the removal of the stay in sentence in the 1999 case. According to the court of appeals, “Lira‘s endangering safety charge in 2004 initiated the probation hold, the revocation orders, and his eventual reconfinement on the parole and probation violations in the 1992 and 1999 cases. This created a relationship between the cause of confinement between Lira‘s 1992 and 1999 cases and his later 2004-05 cases.” Lira, Nos. 2019AP691-CR & 2019AP692-CR, ¶45 (citations omitted).
¶58 Yet this court has repeatedly held that the test under
¶59 In State v. Elandis Johnson, a criminal defendant was on bond pending sentencing
¶60 Similarly, in State v. Beets, a criminal defendant was charged with burglary which “triggered [a] probation hold” for a separate drug offense. 124 Wis. 2d 372, 378-79, 369 N.W.2d 382 (1985). Although the defendant received credit against the burglary charge while he was in custody awaiting sentencing on both the burglary and drug offenses, as soon as he was sentenced for the drug offense and began serving time in connection with that offense, “any connection” to the burglary charge was “severed.” Id. at 379. This is despite the clear procedural connection between the drug and burglary offenses. The burglary charge “initiated the scrutiny into Beets’ background that resulted in the probation hold, the revocation, and the ultimate concurrent drug sentences.” Id. at 378-79; see also Marcus Johnson, 304 Wis. 2d 318, ¶¶76-77 (holding, in a criminal battery case, that time spent in juvenile commitment which would have occurred “even if the . . . battery had not occurred” did not justify sentence credit toward the battery offense, despite “[t]he fact that [the defendant] was on signature bond“).
¶61 By contrast, when custody of an individual is at least in part factually connected to an offense, this court has not been hesitant to provide credit under
¶62 Here, the court of appeals cites a mere procedural connection between the 1992 and 1999 cases and the 2004 endangering safety charge to justify credit. It asserted that the endangering safety charge legally “initiated” Lira‘s reconfinement for the 1992 and 1999 cases. However, just as the defendant in Elandis Johnson was charged with bail jumping and was detained while on bond for a separate charge, and the defendant in Beets was sentenced to a drug offense only as a result of a burglary charge, simply because the 1992 and 1999 sentences occurred under legal procedure because of Lira‘s choice to endanger safety in 2004, does not mean that he was transferred to Wisconsin on May 22, 2005, as a matter of fact for the 1992 and 1999 sentences. Unlike the defendant‘s custody in Carter, Lira was not sent to Wisconsin on a detainer to finish serving his 1992 and 1999 sentences. Rather, he was transferred to Wisconsin to face the 2004 and 2005 charges of endangering safety, escape, and bail jumping.
IV. CONCLUSION
¶64 Lira argues that he is entitled to sentence credit against his 1992 and 1999 cases for time spent incarcerated in Oklahoma between 2006 and 2017. According to Lira, he was “made available” to Oklahoma and, under
¶65 Both
By the Court.—The decision of the court of appeals is reversed.
Notes
A convicted offender who is made available to another jurisdiction under ch. 976 or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155 for the duration of custody in the other jurisdiction.
The sentence of a revoked probationer shall be credited with the period of custody in a jail, correctional institution or any other detention facility pending revocation and commencement of sentence according to the terms of s. 973.155.
(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.