*1 Plaintiff-Respondent, Wisconsin, State
v. D. Johnson, Elandis Defendant-Appellant-Petitioner. Court
Supreme 2007AP1114-CR, argument 2007AP1115-CR. Oral Nos. 23, Decided June
September
2
0 08.
581.)
2d
N.W.2d
(Affirming
App
2008 WI
307 Wis.
Ziegler, Roggensack JJ., join. and Gableman, For the there defendant-appellant-petitioner were briefs Meredith J. by J. Ross the Frank Remington Center, University Wisconsin Law School and oral argument by Meredith J. Ross.
For the plaintiff-respondent argued cause was by Magee, Pamela assistant with attorney general, whom Hollen, on the brief was J.B. general. Van attorney PROSSER, 1. DAVID T. J. a This is review of a published decision of the court of State v. appeals, Johnson, WI 2d App Wis. N.W.2d 581 [hereinafter Johnson].1 Elandis decision af The an order of firmed the Milwaukee Circuit County Court, M. Timothy Witkowiak, Judge, Elandis denying D. (Johnson) Johnson's post-conviction motion for addi tional sentence credit. 2. This requires review the court to interpret (2007-08),2
Wis. Stat. 973.155 Wisconsin's sentence credit statute. The statute mandates convicted sentence offender's be credited with "all spent custody in connection with course of conduct for which imposed." Wis. Stat. 973.155(l)(a). The question presented is whether Wis. *4 § Stat. a 973.155 court requires the same apply 2007, 1In this court decided another sentence credit case entitled State v. Johnson. 2007 WI 318, 304 2dWis. 735 Marcus [hereinafter N.W.2d present 505 Johnson]. Like case, (2007-08). 2007 interpreted § case Wis. Stat. 973.155 2 subsequent All references to the Wisconsin Statutes are to version 2007-08 unless otherwise indicated.
24 to an given sentence concurrent to each credit sentence of hearing, regardless sentencing at the same offender cus in presentence days spent the offender's whether the course of conduct with "in connection tody were id. See imposed." sentence was [each] which im- 973.155 that Wis. Stat. conclude 3. We one toward applied requirement no poses if the a second be toward applied sentence also sentences is to both the same credit for applying basis are are concurrent the sentences merely are The fact that sentences time. at the same imposed not the same time does and are concurrent credit toward service mandate that statutory alter the "in connection that is on a sentence be based of that sentence: rise to giving conduct the course of with" the course connected with factually i.e., custody imposed. sentence was for which conduct of the the decision we affirm Consequently, appeals. court of HISTORY PROCEDURAL BACKGROUND AND
I. but complicated are in this matter The facts was arrested Johnson August On undisputed. approximately for possessing police Milwaukee by baggies. individually wrapped in 64 marijuana grams possession with August on charged He was (less intent to deliver3 with grams) than 200 marijuana from (Case jail released 2004CF4297), and he was No. bond. Johnson $1,000 cash after posting August on 9. His on November offense felony to this guilty pleaded Thus, or amended. revoked never bond was original until for this offense on hond" "free Johnson remained 31, 2005. on August sentenced he was 961.41(lm)(h)l. Stat. Wisconsin *5 18, 2004, On November nine after his guilty plea drug offense, on the Johnson was arrested again, possessing grams this time for more than 40 of marijuana individually wrapped baggies. in 67 He was charged possession marijuana in this incident with (less (Case grams) than 200 with intent to deliver4 No. 2004CF6378). He was thereafter released on a second $1,000 preliminary cash bond. Johnson waived his examination, and the State added a count of bail jumping5 when it filed the information. Johnson pleaded guilty charges February to both of these new on change 2, 2005.6There was no in Johnson's second bond pending sentencing, so that he was "free on bond" for August both sets of offenses until 31, 2005. April ¶ 7. On 19, 2005, Johnson was arrested for possessing grams marijuana, more than 16 some of packaged individually. which was This arrest resulted drug charge simple possession in a marijuana third — (second offense)7 eventually, jump a second bail —and (Case 2005CF2217). ing charge8 No. This time the court set bond at post $15,000. Johnson was unable to this bond, and he remained in in the Milwaukee County May sentencing hearing Jail. a result, As August the first two cases was rescheduled for 31, 2005. May attorney On 2005, Johnson's submit ted a bail requesting motion circuit court, $15,000 Johnson's bond the 2005 case be reduced to 4 Id 946.49(l)(b). Wisconsin Stat.
6Elandis Johnson entered guilty pleas his in Case No. 2004CF4297 and Case No. 2004CF6378 before Milwaukee County Judge Circuit Mel Flanagan. §§ Wisconsin Stat. 961.41(3g)(e), 961.48. 946.49(l)(b). Wisconsin Stat. *6 agreement exchange to $5,000 in for Johnson's enroll monitoring program. granted The court the "In-House" posted $5,000 time, the motion. In Johnson bond program monitoring pend and was turned over proceedings.9 ing further July 2005, 31, On there was a rotation of 9. County
judges felony in the division of the Milwaukee happened, this all three of Circuit Court. When County cases transferred to Milwaukee Johnson's were Judge Sosnay. Judge Sosnay took Circuit William August pleas third 31. in the case on On Johnson's Sosnay, day, Judge hearing, with the same the same investigation, presentence of a sen- benefit three cases. tence for all offenses five Sosnay imposed following Judge sen- 10. (Case 2004CF4297), In 2004 case No. tences. the first year one and was sentenced to of confinement Johnson supervision, days with four 18 months of extended presentence Au- credited for confinement between his gust August 13, 10 and 2004. (Case case No. 11. In the second 2004
2004CF6378), of was sentenced to months Johnson years supervision, plus confinement, of two extended plus possession charge; year confinement, one of year supervision, jumping for the bail one extended charge. sentences, not at These two which are issue appeal, each made concurrent with other but this were to the sentences in the other two cases. consecutive regard to the exact date The record is unclear with County in his was from the Milwaukee Jail Johnson released 6, released on June case. The indicates that he was record 8, However, have that June parties agreed both Therefore, if proceed as Johnson's the date of his release. we will of release date was June (Case 2005CF2217),
¶ 12. In the 2005 case No. charges, possession Johnson was sentenced on two marijuana jumping. and bail Johnson was sentenced to year year one of confinement and one of extended supervision charge, days on each with 45 credited for presentence April his confinement between 19 and June 2005. Both sentences were made concurrent each with other and concurrent with the sentence in the first 2004 case.
¶ 13. On 24, 2007, March Johnson submitted a pro arguing se motion for sentence credit, that the 45 credit he received for the sentence *7 in the 2005 case also should be credited toward the sentence in the first 2004 case. Shortly acquired thereafter, Johnson an at-
torney who submitted a revised motion for sentence judgment credit and a motion for an amended argued conviction. The revised motion that Johnson days was entitled to 50 of credit, rather than 45, for the days sentence in the 2005 case and that those 50 also should be credited toward the sentence in the first 2004 case. Specifically, argued Johnson that State v. (Ct.
Ward, 1989), App. 743, 452 N.W.2d158 App Yanick, and State v. 2007 WI 30, 299 456, Wis. 2d " '[w]hen 728 365, N.W.2d direct that concurrent sen imposed tences are at the same time . . . sentence credit days is to be determined as a total number of and is to against imposed'" regardless be credited each sentence " of whether the sentences are 'in connection with' the same course Ward, of conduct." 153 746; Wis. 2d at see Yanick, ¶¶ 456, Wis. 2d 16-17. Johnson contended that, because the sentence in the first 2004 case and the sentences in the 2005 case were at the same other, he was with each made concurrent time and were toward all three sentence credit days entitled to sentences. 2007, circuit court10 23, 16. On April days the 45 change to request Johnson's
granted but days, in the 2005 case to credit for the sentences of credit to those 50 his request apply it denied The circuit court in first 2004 case. the sentence as follows: its denial explained 29, decision, in its March explained
As the court in connection with not the defendant was April 2005 to period for the case] first 2004 [the case on posted bail was June 2005 because from he was released August 2004 and time. jury in reading of the above-referenced A broad (1995)11,] might struction[, SM-34A Wis JI —Criminal to concur who is sentenced that a defendant suggest equal credit receive is entitled to prison rent terms of the regardless concurrent against each custody in actually spent days he or she number of The court sentence. each concurrent connection with com of the Committee's interpretation rejects such an observed that Committee further because the ments period where the custodial such as this circumstances not same, different charges multiple from exactly the due.... This is of credit will be amounts *8 here. Defendant presented that is kind of situation of with each in in connection Johnson was (i.e. days 4 in periods different custodial these cases for case]). days [the case] and 50 first 2004 [the days four only entitled to receive Consequently, he is Timothy M. County Judge Witkowiak Circuit Milwaukee on March 2007. motion assigned to review Johnson's Jury Instruc- subsequent references to Wisconsin All indicated. otherwise 1995 version unless tions are to the [the credit in days case] first 2004 and 50 case], though [the 2005 even the sentences for these separate offenses were ordered concurrent. appealed
¶ 17. Johnson the circuit court's deci- appeals. appeals, sion to the court of The court of building analysis, on the circuit court's denied request Johnson's to have the 50 of credit from the applied sentence in the 2005 case to the sentence in the Johnson, first 2004 ¶ case. Elandis 9. opinion, appeals began 18. In its the court of its 973.155(l)(a) by stating discussion of Wis. Stat. "[t]here that nothing suggesting excep- in the statute an requirement tion 'in to the connection with' when credit against imposed is due a concurrent sentence at the Ultimately, Id., same time." the court affirmed the approach, asserting circuit court's the circuit statutory requirements." court's "decision tracks the Id., appeals
¶ 19. The court of also clarified Ward and Jury special the Criminal Instructions Committee's pointed ¶¶ materials on sentence Id., credit. 19-29. It reading proposition out that Johnson's of Ward—for the presentence custody against that time in due as credit against one sentence must be credited all other concur- imposed regardless rent sentences at the same time, presentence custody whether the is "in connection with" all the concurrent sentences —was based on the incor- assumption presentence custody rect time credited in Ward was not "in connection with" all the imposed. ¶¶ concurrent Id., sentences 15-16. The appeals parties' court of referenced the briefs in Ward to presentence custody against show that the credited all three concurrent sentences was, Ward [same] fact, "in connection with the course of conduct *9 were] imposed." [the] ¶¶ Id., 11, for which sentence^ appeals determined that words, In the court 16. other presentence "in all was connection with" Id. three sentences. appeals
¶ stated that Moreover, 20. the court of Jury suppose to that the Criminal "there is no reason convey rule intended to Instructions Committee Specifically, urged by ¶ Id., 21. the court of Johnson." appeals that "the committee did not antici- concluded language pate [imposed-at-the-same-time] was that the being saying susceptible be read as credit must to against all concurrent sentences awarded regardless sentence meets time, whether each same requirement." ¶ Id., There- 'in with' 25. connection appeals affirmed the circuit court's fore, the court of deny of 50 additional on Johnson credit decision ¶ Id., in the first 2004 case. 33. the sentence petitioned ¶ review, court for 21. Johnson this granted April petition 14, on and his OF REVIEW II. STANDARD requires in this case us to decide 22. The issue that Johnson must the amount of sentence under Wis. Stat. receive for 973.155(l)(a). interpret this, do we must To Statutory interpretation pre language of the statute. question review de novo. State v. a of law we sents Johnson, 27, 318, Marcus 2007 WI statutory interpre the extent that 735 N.W.2d505. To issue, this issue also raises a constitutional tation question presents de novo. See of law that we review Anderson, 37, 291 Wis. 2d v. 2006 WI State 717 N.W.2d
III. ANALYSIS 23. the result in this case is rela- Determining ¶ easy. a rationale for this result tively Producing terms reconcile synthesize that and case law existing and the almost endless of fact anticipate variety pat- terns that tend emerge to under the sentence credit statute is considerably more difficult. aside the second case Putting for
which Johnson sentences, received consecutive Johnson three concurrent given sentences the same These sentencing hearing. three sentences came from two cases. Johnson seeks separate identical sentence sentences, credit on all three even the two though cases at issue arose out of are events that more separated by than eight months, his presentence custody came at two times, different and each period of is tied directly to one case. only Johnson § contends that Wis. Stat. 973.155
must be construed that, in the require limited circumstance where a court imposes multiple, equal length concurrent sentences at time, the same the court must same sentence apply credit toward all the sentences. He insists that Ward this result requires and this result is prescribed by Wis JI —Criminal SM-34A. Johnson also identical suggests in this circumstance is essential to avoid a constitutional violation of of equal protection the law. 973.155(l)(a) A. Wisconsin Statute 26. We our begin analysis with the language the sentence credit statute. Wisconsin Stat. 973.155 reads, in relevant part, as follows: (l)(a) given credit A convicted shall be offender his her sentence all toward the service or custody in with the course con- spent in connection imposed. which sentence was As used this duct for includes, subsection, days spent custody" "actual enumeration, by confinement re- without limitation ultimately to an offense for which the offender is lated sentenced, any arising out of the or for other sentence conduct, which occurs: same course of trial; awaiting 1. While the offender tried; being 2. While the offender is *11 of awaiting imposition the offender is 3. While after trial. (a) (lm) (b) include categories par. The in and sub. custody offender is in or in of the convicted which whole probation, supervision extended or part the result of a 302.113(8m), 302.114(8m), parole hold under s. 973.10(2) 304.06(3), upon person for the placed or resulting in the new same course of conduct as conviction. 973.155(1) added). § (emphasis
Wis. Stat. In an offender is entitled to deciding whether statute, sentence credit under the amount of particular (1) determinations: whether a court must make two of Wis. custody" meaning the offender was "in within the (2) 973.155(l)(a); and whether all or of part § Stat. "in is was "custody" sought for which sentence with the course of conduct for which sentence connection Johnson, 318, Id.; Marcus 304 Wis. 2d see imposed." 582, 578, 225 2d 593 31; State v. Wis. Thompson, (Ct. 1999); Beiersdorf, v. 208 875 State App. N.W.2d (Ct. 492, 496-97, 749 App. Wis. 2d 561 N.W.2d 1997); v. Gavigan, State (Ct. 1984). After these deter App. making
N.W.2d make and enter a minations, specific "the court shall the number of for which sentence credit finding days of 973.155(2).12 § granted." is to be Wis. Stat. no that Johnson was "in dispute 28. There is a total of 54 on these cases before he
custody" days was sentenced on our August Consequently, days13 focus is how credit for these 54 principal statutory should be that an applied, given language all days offender's sentence "shall" be credited "for spent with the connection course conduct for of 973.155(l)(a) which sentence was Wis. Stat. imposed." added). More we must determine (emphasis specifically, whether four of re days directly sentence, imposition After the of the court make shall specific finding and enter a of the of number for which granted, sentence credit is to be which conviction. In the probation, supervision extended case revocation or waived, parole, department, hearing if the or the hearings appeals department division of administration, in the hearing, case of a shall make such a finding, which shall be included in the revocation order. 973.155(2). Stat. Wis. argument, attorney posi- At oral Johnson's altered her *12 tion, asking days applied of credit be 54 to each of position logically Johnson's concurrent This sentences. is con- with argument sistent Johnson's oral but inconsistent with argued Johnson's brief: "Mr.Johnson never all of the credit together. from each concurrent sentence should be added Rather,... argued greater (here, he that the amount of credit days) applied give 50 should be to both sentences in order to by effect to that credit." The outcome of this case not affected is requests days days whether Johnson that 50 or 54 of he sentences; applied therefore, to each of his concurrent we proceed request under Johnson's for 54 of credit.
34 applied lated to the first 2004 case should be as credit toward the case, concurrent sentences the 2005 and days presentence custody directly whether 50 related applied to the 2005 case should be as credit toward the concurrent sentence in the first 2004 case. The answer depend interpretation will on the of the "in connection 973.155(l)(a). with" clause in Wis. Stat. interpreting
¶ 29.
that,
We note
Wis. Stat.
973.155(l)(a)
proper
to
resolve
amount of sen
tence credit
offender,
for an
some Wisconsin courts have
statutory language
susceptible
determined that the
is
to
interpretation
more than one reasonable
and is thus
ambiguous.
e.g.,
See,
Johnson,
Marcus
304 Wis. 2d
Floyd,
¶¶ 34, 68;
¶14,
State v.
2000
n.6,
WI
13
232
Tuescher,
Wis. 2d
155;
606 N.W.2d
State v.
226
(Ct.
1999);
App.
465, 471,
Wis. 2d
¶ 30. Whether this statute is deemed
likely
depend
difficulty
applying
to
on the
its
language
complex
or unusual facts and the existence
competing
of reasonable
views on how the statute
interpreted.14 Statutory
should be
text that is clear in
Johnson,
318, 34,
See
(finding
Marcus
63-68
ambiguity
determining
juvenile
when
whether
extension
commitment
against
is considered
for which credit
an
required);
Floyd,
adult sentence is
State v.
2000 WI
767,13 n.6, 18,
Wis. 2d
(finding ambiguity
most
that,
conclude
fact
We
patterns.15
unanticipated
for
(Ct.
475, 479,
App.
465, 470-71,
to prevent a defendant
from serving more time than his
sentence or
Beets,
his sentences call for.
or other 498). fice.") (citing 2d at Beiersdorf, 208 Wis. illustrate, the defendant Beiersdorf, To 34. jumping charged after with bail arrested and was violating recognizance personal of his the conditions place his unresolved as a result of bond, was which 2d at 494-95. 208 Wis. Beiersdorf, sexual assault case. being pleading guilty sentenced on both and After presentence charges, requested he that his jail charge prison a or for which was a result of the criminal imposed on which such is or as a result of conduct sentence charge is based.... resulting from bail jumping charge, for which his sentence was stayed probation, favor of applied be Id. for his sexual assault charge. 35. The court of affirmed the circuit appeals court's order denying this request: "Although defen- dant may that perceive custody is at least partly crime, connection with another mean does not for credit custody, purposes, related to the course Id. at of conduct which sentence was imposed." (internal omitted). citations and quotations Because the sentence "in imposed was connection with" the sexual assault but charge, custody was "in connection with" the bail jumping charge, there was no factual connection the presentence between and the sentence imposed. Id. at 498-99. This true despite the obvious procedural connection between the bail charge and the jumping original sexual assault charge: i.e., without the sexual assault there charge would have no personal bond, been recognizance thus, no bail jumping. See id. at 498. no Consequently, time was credited to the sexual assault sentence. Id. Johnson, in Marcus Similarly, this court denied the defendant's sentence credit request because *16 there was factual no connection between the sentence issue. Marcus imposed presentence and the custody Johnson, 318, 2001, 63-76. In June ¶¶ after adjudicated being delinquent, the defendant be- gan juvenile serving a commitment. This commitment was in May 2002, 2003, extended and in again May because of Johnson's behavior and poor plethora a Id., 11, commitment infractions. 16-20. Less than ¶¶ two weeks his May extension, after 2002 commitment the defendant battered another in juvenile the same Id., 12. in facility. This resulted the defendant being ¶
39 felony. Id. The defendant and with a charged arrested posting after felony battery charge on the was "free" a juvenile he returned to bond, but was signature Id., 13. facility. ¶ custody in at the remained 37. The defendant
¶ for commitment juvenile juvenile under his facility his in 2004 sentencing February until most of the time Id., Following 12-15. battery charge. for ¶¶ the the time requested the defendant sentencing, his his for facility after arrest juvenile he the served Id., the sentence. against battery be credited battery credit, reason- court disallowed such 21. The circuit ¶ under commit- juvenile the defendant's ing that with his for way no connected sentence ment was Id., 23-25. battery. ¶¶ On this court affirmed the circuit appeal, denial, that Marcus Johnson's noting signature
court's case in effect until the in the remained battery bond for and his charge, his time facility juvenile commitment in the would extended Id., incident.17 regardless battery have occurred result, this court held that the defendant's 76. As a facility following juvenile "in battery battery was not connection with" support had in the The Marcus Johnson court extensive for its conclusion that the defendant's commitment record battery if May 2003 even had would have been extended example, not For "in June Johnson accumulated occurred. orders, disruptive disobeying con- charges nine additional staff, staff, battery creating duct, attempted to an threats condition, unsanitary conduct." Mar- inappropriate sexual Also, Johnson, July "[b]etween cus 2d Wis. accumulated 45 additional and December Johnson battery charge in charges," including an additional November 2002. Id. *17 Thompson, Id., 81;
sentence.
¶ 39. In cases, contrast to these two sentence applied presen- must be credit when the defendant's factually tence "in connection with" the imposed. course of which conduct for sentence was See 973.155(l)(a). Stat. Wis. example, Floyd,
¶ 40. For this court credited endangerment the defendant's for sentence reckless spent presentence custody with the time he for an robbery robbery unrelated armed because the armed charge sentencing was read in for reckless endangerment. Floyd, ¶¶ 767, 232 Wis. 2d 1-2. The charges court reasoned that read-in are considered at sentencing; charges therefore, the read-in become a sentencing factual consideration determination. Floyd, Consequently, ¶¶ 767, 25-26. charges read-in were determined "related to be to" the endangerment sentence, reckless therefore, con charges factually on finement the read-in "in was con nection with the which course conduct for imposed." 973.155(l)(a); Floyd, Stat. was Wis. ¶¶ 2d Wis. 31-32.18
18In Floyd, alternative, proce the defendant asserted an durally argument Floyd, based for sentence as well. 2d Wis. The defendant asserted that the robbery for "in charge his armed connection with" endangerment the sentence imposed for his reckless charge he agreed guilty plea because endangerment to a reckless exchange for robbery charge. a of the armed dismissal Id. This unanimously rejected argument, court stating defendant's proposition procedural "the may satisfy connection *18 concerning appeal Gilbert,
¶ a consolidated 41. In had their sentences cases, the defendants each two given probation, stayed but as condition of a and were spend they required probation, time in the to some were serving county jail. Gilbert, 115 at 373-76. After Wis. 2d being had his released, each defendant time and this probation the convic- and was sentenced on revoked stayed. 374, been Id. at tions for sentence had which request denied each defendant's 376. The circuit courts jail days spent apply a in as condition to probation those probation was after to the sentences deci- reversed the at 374-76. This court revoked. Id. jail time circuit courts and credited sions the two presentence because the to the defendants' sentences custody crime for "in with" same was connection imposed. 376, Id. at 380. This each was which sentence direct, between the saw factual connection court a custody the course in defendants' time respective sentences were conduct for which the of imposed. Similarly, ¶ Yanick, 1, ¶ 299 Wis. 2d custody his as a condition of the defendant was probation, the revoca- which was later revoked. After underlying and his tion, he sentenced for the crime spent presen- he credited the time sentence was though custody, time con- was served tence even recently imposed for an with another current unrelated crime. Id. distinguished Beets, 124
¶ 43. The Yanick court 378-79, 2d at this court held that Wis. where charge any imposition a sentence one severs on pending charges may later result further credit for Id., already rejected." statutory requirement has been Beiersdorf, to State v. (referring 2d 561 N.W.2d 208 Wis. (Ct. 1997)). App. sentence, in a by that "Beets does stating not address service of a sentence and concurrent service of time a pursuant which disposition, is the sort of concurrent Yanick, time at issue here." Wis. 2d 44. Because the defendant in Yanick was ulti-
mately sentenced for the same crime for which he was custody as condition of his probation, the court of determined that appeals time in custody was "in con- *19 nection with the course of conduct for which sentence 973.155(l)(a). Id., 24; [was] imposed." § Wis. Stat. ¶ 45. In applying 973.155, Wis. Stat. ¶ these cases to attempt time in distinguish spent presentence cus- tody that is "in factually connection with the course of conduct for which sentence was imposed" from time spent presentence custody that is not "in factually connection with the course of conduct for which sen- tence was imposed." The statute does not sen- provide tence credit for time in custody related, that is not or is only procedurally related, to the matter for which sentence is imposed. Floyd, See 232 Wis. 2d 15-17; Beiersdorf, 208 Wis. 2d at ¶¶ 498. 46. The statute poses a simple
¶ test: whether the for custody which sentence credit was "in sought connection the with course of conduct for which sentence 973.155(l)(a). Wis. imposed." Stat. Admittedly, answer to this test is statutory not always simple. 47. Calculating correct number of days that need to be credited to each of Johnson's concurrent sentences requires that we examine each separately sentence and the time spent presentence "in custody connection with" each cannot, sentence. We as Johnson's argument attempts do, conflate all the concurrent make a credit and day on the same
sentences sentence only one overall as if there were determination imposed. of days the four dispute There is no 48. arrest from Johnson's custody resulting
presentence "in connection with factually case is first 2004 that case [in [the] for which of conduct course that the Likewise, dispute there is no Id. imposed." was] from resulting custody of days presentence "in con- is factually 2005 case arrest Johnson's [the] for which conduct the course of nection with Id. imposed." were] case in the 2005 sentence^ be- no factual connection However, there is in 2004 and custody days of presentence tween the four in the the sentences of conduct which the course factual connec- nor is there a imposed, 2005 case were in 2005 days presentence between the tion in the for which the sentence of conduct and the course Floyd, See imposed. first 2004 case was Thus, only 2d 208 Wis. 15-17; Beiersdorf, ¶¶ credited to must be days four case, only in the first the sentence *20 credited to the sentences must be 973.155(l)(a). No case. See Wis. Stat. in the 2005 either case. is due for sentence credit other SM-34A and Wis JI —Criminal B. State v. Ward case, is not relying Johnson present In the because, as dem- of the statute language the plain on for sen- its onstrated, satisfy requirements he cannot on an alternative Instead, he is relying credit. tence sen- received concurrent a defendant test: whether sentences were those concurrent tences and whether If this test two-part time. same imposed argues, any presentence custody satisfied, he time in credited toward one of the concurrent sentences must be credited toward all the concurrent sentences im- posed support at that To time. this test, alternative heavily following Ward, Johnson relies on the cases Ward, and Wis JI —Criminal SM-34A. requires
¶ 51. The Ward case close examination support because the facts of the case do not Johnson's position. appeals The court of stated the facts as fol- lows:
Following the probation, revocation of his Houston Ward was sentenced to indeterminate terms of three years incarceration on each of three convictions delivery marijuana. The trial court directed that each sentence be concurrent with the others and with a three-year by sentence imposed judge different an granted unrelated case.. . . The trial court Ward 233 days of credit as the pre-sentence result of Ward's incarceration, applied only but the credit to the first of the three argues concurrent sentences. Ward that he is entitled to have applied the credit to each of the concurrent terms.... The state concedes error. We agree, and reverse. (internal
Ward,
¶ 52. The Ward court thereafter applying "pre-sentence against only one of the three-year concurrent terms defeats the concurrent nature of the sentence because the first term is reduced years days, remaining to two and 132 while the two years." terms stand at three full Id. at 745. The court then noted its result was consistent with the Jury conclusion of the Wisconsin Criminal Instructions opined Committee, which that" 'When concurrent sen tences are at the same time or for offenses
45 conduct, the same course from arising days number of and as a total determined credit is to be Id. sentence imposed.' " each against to be credited (1982) SM-34A at JI —Criminal Wis (quoting added)). (emphasis reliance on Johnson's with 53. Confronted the briefs Ward to
Ward, went to the court of appeals The of the facts. statement complete a more obtain was ar- Houston Ward following: briefs revealed time, he was on 19, 1988. At that September rested on three counts of conviction for for a 1984 probation arrest, his Ward was Following marijuana. delivering and possession of cocaine delivery with charged 20, 1988, On September intent to deliver. cocaine with his proba- on Later placed hold was Ward. a probation result, As a was revoked. the 1984 conviction tion on the three with both connection Ward was cocaine the two 1988 marijuana charges in each until he was sentenced from his arrest charges cases. of the two first. On Febru- sentences came 54. The cocaine charges, the cocaine 7,1989, guilty to
ary pleaded Ward counts, three-year he received and on each of the two other, each concurrent with term. The sentences were credit for sentences, Ward received and on both the time he custody, representing 19,1988, February September was in from 9, 1989, Ward was sentenced 55. On February charges, On each of the three the marijuana charges. on but years prison, to a term of three he was sentenced sentences should determined that the three the court with the sen- other and also be concurrent with each charges. on the cocaine tences previously imposed *22 in he days jail before was spent 56. Ward had marijuana charges three for the on placed probation of credit on each days he entitled to 91 Thus, was 1984. He on the sentence. also was marijuana 20, 1988, February until from September hold probation agreed All parties he was sentenced. when to the sen- days custody prior spent Ward had However, charges. marijuana on the three tences on one of those sen- only awarded credit circuit court received full that he should have tences. Ward contended sentences. marijuana all three credit on It noted, conceded error. con- As State of credit on all days entitled to 233 ceded that Ward was There was no dispute sentences. marijuana three of credit on all five days entitled to Ward was of credit cases, days but the full 233 in the two sentences brief, In sentences. his marijuana to the only applied follows: Hicks, as explained Michael attorney, Ward's allowed on properly credit were [I]f the sentence marijuana convic- for the sentences] concurrent [the tions, imposed [in case] the cocaine then the sentences control, they longest concurrent as would be would days applies credit on those only 142 sentences since still loses the Ward computation, this sentences. Under with the spent jail in connection days that he However, he must penalty that is the marijuana cases. committing a new probation by violating his suffer for crime. added.) (Emphasis by undercut analysis This solid in the on a passage when it relied appeals
court of Instructions Jury from the Criminal materials special Committee: imposed at the same sentences are concurrent
When course of arising from the same time or for offenses sentence credit is to be determined as a total conduct, number and is against to be credited each imposed. against Credit each sentence re- quired against only because credit one sentence would by negated Thus, be the concurrent sentence. if the sentences, against was not awarded both offender would not receive the credit to which he is entitled. *23 (1982)
Wis JI —Criminal SM-34A at 11 (emphasis added). 59. This whole is paragraph unfortunate be-
¶ it cause is too broad. The Criminal Jury Instructions Committee's of the use word "or" in the first sentence of the paragraph implicitly creates two distinct theories of credit, only one of which is grounded Wis. alone) § Stat. If the 973.155. first theory were (standing valid, it would out wipe the need to adhere to the of the language statute. Tuescher, 60. In the court of appeals
¶
referenced
Ward's use of this suspect
"The
paragraph:
application
of the statute
..
is.
relatively straightforward when
multiple sentences are
the same time. If are concurrent,
sentences
time spent
in presentence
custody is credited toward each sentence. See State v.
Tuescher,
Ward ....''
Example burglaries,
Smith was arrested for two charged in a information, two count and convicted of both day. spent year jail He one charges on the same serve He was sentenced to awaiting disposition. count, to run years on each sentences five one concurrently with another. order judgment of conviction should
The days pursuant for 365 to 973.155. credit is due prison, regis- judgment reaches the When the with credit each of the concurrent sentences trar will they though the sentences as days, computing thus begun days earlier. had at 9.
Wis JI —Criminal SM-34A statutory satisfies the fully 62. This "example" be given that a convicted offender requirement in connection with "for all days spent sentence was imposed." of conduct for which course Wis. Stat. 973.155. out of this Taking suspect paragraph and ex- other ignores explanations
factual context To wit: in the materials. special amples *24 Days for Credit Determining the Number of Which III. is Due 973.155(l)(a) requires two determinations:
Section second, custody"; first, offender was "in whether the custody "in connection with the course the whether imposed." conduct for sentence was of which JI —Criminal SM-34A at Wis charges for on unrelated
4. Concurrent sentences due[.] of different amounts credit are which periods the There will also be situations where of concurrent credit is due on unrelated time which for up will line with each other. Some sentences not and a amount will be due on one sentence different credit will be due on another. If different judges are involved, unlikely it be judge will each will be aware the sentence credit in the other situation case completing judgment, when his or her own but judge imposing try the second sentence should become informed of against the credit awarded the first sentence. cases, registrars
In such properly compute shall against the credit ordered each sentence. If a defendant days two-year is entitled to 10 of credit on one sentence and 150 two-year credit on a concurrent sen- tence, registrar will compute sepa- each sentence rately and the controlling defendant's sentence will be two-year with lesser amount of credit. added). Id. at 12 (emphasis 64. Properly Ward nor the neither interpreted, special materials leads to the result sought by Johnson. facts Ward and the Both the in the examples special materials provide support the court of appeals' interpretation of the statute in this case. 65. Ward demonstrates that when a defendant
spends time
presentence custody and the reason for
that presentence
is "in
connection with the
course of conduct
for which sentence was imposed,"
then the time
spent
custody must be
credited against
the ultimate
sentence imposed. See
Ward,
order for time in presentence custody to be credited to the sentence imposed, there must be a factual connec tion between the presentence the sentence. *25 See id. at each (crediting marijuana sentence 744 with
50 not but custody, in presentence for time days spent 233 the same sentences with unrelated cocaine crediting days presentence not all 233 because days cocaine "in connection with" the custody spent were sentences). his cocaine sentences and Ward's Although concurrent length, equal sentences were marijuana time, the same nearly other, and imposed with each from his 1984 custody days presentence Ward's because, at the erased effectively arrest were marijuana he still complete, sentences were marijuana time Ward's sentences. Ward on his cocaine remaining had 91 days days since those were days those 91 of credit lost out on cases, not the marijuana only in connection with cocaine cases.19 mate- sum, special neither Ward nor In 67. with" requirement the "in connection
rials displace § 973.155. under Stat. Wis. that, like Houston acknowledged It must be he days spent credit for
Ward, Johnson "loses" he this time because But he loses custody. sentences, concurrent being given from benefits he time that amount of the overall thereby reducing in post-sentence to spend been required have might concur- that his unrelated complain He cannot custody. this loss. to avoid not line up perfectly rent sentences do of Wis. Stat. language the plain The result upholds 973.155(l)(a) spends that Johnson and ensures each unrelated sen- for 365 days requisite tence imposed. and credit to decide otherwise If were we be we would days, sentences with
each of Johnson's than 365 less spend Johnson allowing sentence imposed. each 19 Supra, 56-57. ¶¶ *26 70. While we must ensure "that a not person
¶ more serve time than that for which he sentenced," is Beets, 379, 124 Wis. 2d at we must also ensure that a serves the person actually requisite number of days to which he was sentenced. Our ruling today accomplishes that result.
C. Equal Protection of the Law 71. There were passing
¶ references to equal pro tection of the law in the defendant's brief and more on emphasis equal protection his oral argument. Equal protection also was the gist of Judge Charles Dykman's dissent hr the court of appeals. See Elandis Johnson, 735, 34-36 (Dykman, J., ¶¶ dis senting). However, an equal protection argument has not fully been developed briefed, thus, or the court is not required to issue a comprehensive response. See State v. Franklin, 2004 38, n.5, WI 270 Wis. 271, 2d 677 N.W.2d ("[BJecause 276 applicability [the was statute] not fully briefed by parties, we do not further address it."); P., State v. Jeremy 2005 WI 22, 278 App ¶ ("Because Wis. 2d 311 N.W.2d this issue is not (citation fully briefed, omitted)). we need not address it." 72. Nonetheless, ¶ we will comment briefly on one point by made Judge Dykman in his dissent. Judge Dykman suggested that Johnson's trial attorney may have "performed deficiently by failing to ask the circuit court to revoke [Johnson's] bail in the case," so that he would have been "in custody" that case when he "in on custody" the 2005 case. Johnson, Elandis Wis. 2d (Dykman, J., 35¶ dissenting). Judge asked Dykman the case be re- manded for an evidentiary "If his hearing: attorney was taking to assist Johnson by failing ineffective with' 'in connection his to make necessary steps bis relief in the form entitled to case, [Johnson] Id., credit." of sentence the time note, response, 74. We case, he had on his 2005 into was taken
Johnson *27 awaiting felonies and was to three guilty already pleaded $15,000 cash The court imposed on them. sentencing Johnson's charges. felony of two new in the face bond this to reduce the court later attorney persuaded trial released for 84 Johnson was bond, ultimately, and sentencing.20 August before his revocation of to seek the attorney an Asking bis then turn around felonies and bail on three client's on those release his client's presentence and obtain (which committed when felonies, more were and two court can more than the bail), is asking was on client re- Presentence from trial counsel. reasonably expect release wanted. His is what Johnson lease Second-guessing sentencing. him at have benefitted may specula- facts would be on these performance counsel's tive, at best.
IV CONCLUSION im- § Stat. 973.155 that Wis. We conclude one toward applied that credit no requirement poses if the a second sentence toward also be applied reduction, "Grant, § entitled 969.08 is Stat. Wisconsin (5) of release." Subsection of conditions increase or revocation in a motion to attorney must show a district what describes Although a defendant pretrial release. conditions of revoke the presen- of his own for revocation to move probably is entitled difficulty 969.08(9), he would have release, see Wis. Stat. tence 969.08(5)5. course, Stat. reversing see Wis. applying basis for the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same The time. fact that sentences are concurrent and are at the same time does not statutory alter the mandate that credit toward service of a sentence be based on "in connection giving with" the course conduct rise to that sentence: custody factually i.e., connected with the course of imposed. conduct for which sentence was Because satisfy requirement, Johnson cannot this the decision appeals of the court of is affirmed.
By appeals the Court.—The decision of the court of is affirmed. {concurring). 77. DAVIDT. PROSSER, J. In her argument attorney,
oral court, the defendant's proposed Ross, Meredith the "Bill Rule," Gates which spend she defined as a rule that no defendant more time custody, pre-sentence post-sentence, than bil- spend lionaire Bill Gates would have to for the same *28 formulating Attorney conduct. In this "rule," Ross as- always sumed that Mr. Gates would be able to make bail opportunity. at the earliest Attorney argued ¶ apply 78. Ross that a failure to days at least 50 of sentence credit to each of Johnson's three concurrent sentences meant that Johnson had to spend days 46 more than Bill Gates would spent, thereby violating have denying the "Bill Gates Rule" and equal protection
Johnson of the law. Attorney ingenious ¶ argument 79. Ross's is grounded questionable premise showing on the that a disparity hypothetical between a situation and a real exposes equal protection situation a violation of of the may hypothetical law. It well be that our Mr. Gates position post any would have been in a amount of any he in the three cases if were bond in his cash person position of Mr. However, as Johnson. a same captured good notoriety a deal more would have Gates' good is Johnson, thus, and there a than attention if had would have been revoked he chance that his bond drug dealing charge felony appeared on a second County Circuit Court. Milwaukee any not a event, defendants do have In "right" those sentences to concurrent sentences when separate, cases. See Wis. Stat. out of unrelated arise an exercise of sentences entail 973.155. Concurrent judicial Wis. 973.15. It was discretion. See Stat. sound Judge Sosnay made William a matter discretion with 2005 case concurrent sentences Johnson's Moreover, it in the first case. his sentence merely in the that Johnson was sentenced fortuitous Judge Judge Sosnay by Mel rather than first 2004 case signifi- Flanagan, judge plea. This took his who Attorney "Bill that the Ross did not insist cant because involving apply to different Rule" situations Gates judges. days for the two effect, In Johnson served 50 post- as all his 2005 case inasmuch
felonies
overlapped the 361
time on those felonies
post-sentence
can
2004 case. This
on
first
he served
hardly
as
severe sentence.
be described
might
circuit court
have determined
82. The
having spent
hypothetical
Gates,
zero time
Mr.
badly
having
his
abused
in
privileged position
by committing
felonies
additional
longer
while
in the
sentences
bail,
on
should receive
*29
emphasize the
to
serious-
case than Johnson did
public,
protection
his
of the
and
crimes,
of his
the
ness
pretrial
his
release.
conditions of
defiance
the
Rule,"
it,
The "Bill
if
Gates
we ever adopted
a rationally
would
based statute that
an
gut
requires
given
offender be
credit toward service of his sentence
with
connection
the
"for all
days spent
custody
course
conduct
which sentence was imposed."
(2007-08)1
added).
Wis. Stat.
973.155
The
(emphasis
Rule,"
conclusion,
"Bill
to
Gates
extended
its logical
would
to
that a
stack
appear
require
court
up
from all concurrent
sentences
from all relevant
apply
resulting
cases and
number
of days as credit to all those
But the
sentences.
fact that
Mr.
cases,
Gates would make bail in all his
both related
unrelated,
would
change
not
requirement
the statute
tied,
toward a sentence be
factually,
to
connection
each
with
sentence.
See Wis. Stat.
State v. Floyd, 2000 WI
973.155(l)(a);
14,
15-17,
767,
155;
232 Wis. 2d
State v.
606 N.W.2d
¶¶
(Ct.
Beiersdorf,
492, 498,
Wis. 2d
concur. (<con 85. ANNETTE ZIEGLER, KINGSLAND J. curring). I write separately address "Bill Gates Rule" and also to that the State clarify cite to majority's v. Floyd, 2000 WI 606 N.W.2d not to be authority construed as for the proposition a read-in offense entitles one to sentence credit for that read-in offense as a matter of all law under circum stances. subsequent All references to the Wisconsin Statutes are to version 2007-08 unless otherwise indicated.
I argument ¶ In counsel's oral and the defense concurrence, are made to in references Justice Prosser's that "rule" as one the "Bill Gates Rule." Counsel defines spend more that no defendant which should ensure custody spend Bill time in than billionaire Gates would in for the same conduct. argument that Bill Gates assumes 87. This oppor- always post able to bail at the earliest
would be tunity. argument other assumes that This also post We must be unable to bail. also defendant would argument that Bill Gates assume for the sake of this any sen- and received the exact same other defendant assuming case, to he the tence. Even these factors reality, not, however, the "Bill Rule" does in Gates argument. forward the defense counsel's reality, defendants, Gates, here Bill In some spend post in thus, are and would not time able to bail custody pre-sentencing. defendants, cannot Other who custody pre- post spend bail, would indeed time may days sentencing. spend zero Thus, Bill Gates may custody pre-conviction and the other defendant custody pre-conviction. spend, example, days for assuming However, defendants receive both sentencing, period Mr. Gates same of incarceration actually time in serve 50 more would post-sentencing because than the other defendant § 973.155, Stat. sentence credit. Under Wis. pre-sentence In this incarceration. credit is awarded example, credit Bill is entitled to receive Gates not post-sentencing defendant then would other days. post-sentencing The receive credit relief given great equalizer. I 89. write this concurrence to outline fatal argument. is, flaw of the defense counsel’s That credit is pre-sentence due for those who deserve credit for incar- Such ceration. spend credit is not due for those who do not custody pre-sentencing. time As result, *31 credit, because of mately each defendant will ulti- custody. serve the exact amount same of time II separately clarify I write to the majority's Floyd example use of is as an but not as authority proposition for the time served for a always given read-in offense will be as sentence credit. 973.155(l)(a) Wisconsin Stat. entitles an offender to days spent credit all "for in connection with imposed." the course conduct for which sentence was However, whether due for the same course of may depend conduct on facts of the case and Straszkowski, whether State v. 65, WI changed analysis Wis. 2d N.W.2d Floyd. Floyd decided, When a read-in offense was purposes sentencing. deemed admitted for the Now, longer Straszkowski, under a read-in offense is no analysis open deemed admitted. new This now leaves question being of whether the defendant is sen- tenced same "course of conduct" because under Straszkowski, read-in offenses are not admitted. As a clarify result, I to write that this issue was not briefed argued by parties or in this case and we do not question today. appropri- decide that This court then ately questions by to waits decide these raised this concurrence until we the full have benefit the adver- process guide sarial our decision. foregoing
¶ 91. For the I reasons concur. PA- that Justices to state I am authorized J. and MICHAEL ROGGENSACK DRAKE TIENCE join this concurrence. GABLEMAN