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  • August 26, 2010

    Credit for time served: Supreme court addresses rules under sentence credit statute

    A defendant, charged for a crime in Wisconsin, is later arrested and jailed in Illinois based on both Illinois and Wisconsin warrants. Does credit for time served apply to the Wisconsin sentence when the defendant is sentenced to a prison term that runs concurrently with the sentence in Illinois? The Wisconsin Supreme Court said yes in State v. Carter.

    By Joe Forward, Legal Writer, State Bar of Wisconsin

    jail

    Sept. 1, 2010 – When a defendant is jailed on the basis of both out of state and Wisconsin warrants, the defendant will get credit for presentence time served out of state if the defendant is concurrently sentenced on the Wisconsin charge that triggered the warrant.

    In other words, a defendant’s out of state custody need not be “exclusively” the result of a Wisconsin warrant to receive credit for presentence time served out of state.

    That’s what the Wisconsin Supreme Court held in State v. Carter, 2010 WI 77 (July 14, 2010), a case in which four justices agreed that defendant Patrick Carter was entitled to 305 days of presentence credit towards a sentence imposed by Wisconsin to be served concurrently with a sentence in Illinois.

    The case drew five opinions totaling 115 pages interpreting Wis. Stat. section 973.155(1)(a), which gives a convicted offender “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.”

    The majority – in an opinion written by Chief Justice Shirley Abrahamson (Bradley, J., Crooks, J., and Gableman, J. joined) – viewed the decision as “another step forward to help clarify the sentence credit in a case involving concurrent sentences.” Justice Patience D. Roggensack concurred with the majority in part, dissented in part.

    Justice Prosser, dissenting, argued the majority’s “legally mistaken” view may “inspire countless motions for additional sentence credit.” Justice Annette K. Ziegler wrote a separate dissent.

    Facts and procedure

    In July of 2003, Patrick Carter was charged with first-degree recklessly endangering safety after discharging a gun that killed someone in Milwaukee. The Milwaukee County Circuit Court issued a felony warrant for his arrest, which authorized extradition from any state.

    On Dec. 13, 2003, Carter was arrested in Chicago for violating the terms of his probation on an Illinois conviction for drunk driving. Police also listed the Wisconsin warrant as a basis for arrest and transported him to the Cook County jail.

    Two days later, according to fact-finding by the circuit court, Carter refused to waive formal extradition since the pending Illinois charge had to be resolved before he could be sent to Wisconsin. He was sentenced to jail time on the probation violation and served six days.

    Illinois authorities notified Milwaukee police that Carter was in custody, waived extradition, and advised Milwaukee authorities to instigate the formal governor’s warrant procedure for eventual extradition back to Wisconsin.

    On Dec. 19, 2003, while serving sentence for the probation violation, Carter was charged on two counts of armed robbery, which occurred in Illinois just days before his Dec. 13 arrest.

    Carter remained in jail until Oct. 19, 2004, the date on which he was sentenced to two concurrent terms of 14 years imprisonment for two counts of armed robbery. A day later, the Wisconsin governor’s warrant hold was vacated, and Carter entered an Illinois prison.

    On June 6, 2005, while serving his prison sentence in Illinois, Carter was transported to Milwaukee County pursuant to the Interstate Agreement on Detainers.

    On Aug. 30, 2005, Carter entered a guilty plea on the Wisconsin charge of first-degree recklessly endangering safety and was sentenced to seven years, six months initial confinement, and five years extended supervision, to be served either in Wisconsin or Illinois concurrently with his armed burglary sentence.

    The Milwaukee County Circuit Court denied Carter’s request for presentence credit based on custody in Illinois, ruling that “[a] defendant is not in custody in connection with the course of conduct for which the sentence is imposed until his custody is surrendered to that jurisdiction.”

    The appeals court reversed, and granted Carter 324 days of credit for time served in Illinois. The supreme court affirmed, but modified the calculation based on a more fully developed record.

    Majority

    The court relied largely on State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989), State v. Johnson, 2007 WI 107, 304 Wis. 2d 318, 735 N.W.2d 505, and State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985), to affirm the rule that a defendant is entitled to presentence credit on all concurrent sentences even if the sentences arise from unrelated charges, and regardless of whether presentence custody is in Wisconsin or another state.

    And the state agreed that under State v. Johnson, 2009 WI 57, 318 Wis. 2d 21, 767 N.W.2d 207, concurrent sentences need not be imposed “simultaneously” for sentence credit to apply.

    Instead, the dispute centered on whether, under section 973.155(1)(a), Carter’s presentence custody was “in connection with the course of conduct for which sentence was imposed.”

    The state argued that Carter was not entitled to sentence credit unless the presentence custody in Illinois was “exclusively the result of the Wisconsin charges.”

    But under the controlling decision in State v. Johnson, 2009 WI 57, 318 Wis. 2d 21, 767 N.W.2d 207, the court explained, it is not a question of “exclusivity” but a question of whether a “factual connection” exists between the presentence custody and the sentence.

    For 305 days, Carter was held in Illinois custody “in connection with the course of conduct for which he was [later] sentenced in Wisconsin,” the majority held. The custody in Illinois, based in part on the Wisconsin warrant, created the “factual connection,” the court held.

    The majority granted Carter 305 days of credit beginning on the date of his initial custody (Dec. 13, 2003) and ending the day he was sentenced for armed robbery in Illinois (Oct. 19, 2004), excluding the six-day sentence for the Illinois probation violation. 

    Concurrence and dissents

    Justice Roggensack agreed that Carter was entitled to credit, but only 302 days. “The difference may seem small, but the reason for the difference is important,” she wrote.

    Roggensack argued that a defendant must show the “legal process” that triggers the connection between his custody and the course of conduct for which sentence is later imposed.

    Roggensack argued that “no legal process caused Carter’s custody in Illinois to be ‘in connection with’ the Wisconsin crime until: (1) Illinois issued a fugitive warrant for Carter’s arrest, based on the Illinois fugitive complaint, and (2) Carter had completed his Illinois DUI sentence.”

    The Illinois fugitive warrant, issued on Dec. 16, 2003, functioned to allow Illinois to hold Carter lawfully in custody for extradition to Wisconsin. The fugitive warrant, she argued, determines “when a defendant’s custody becomes custody in connection with the Wisconsin crime.…”

    In dissent, Justice Prosser argued that section 973.155(1)(a) is derived from federal statute, and analyzed federal cases as persuasive authority for interpreting Wisconsin’s statute.

    He argued that “detention in another state based on an offense committed in that state, even if a Wisconsin warrant or detainer has also been filed, has been excluded from the interpretation of ‘custody’ for sentence credit purposes since the early 1980s.”

    Prosser advanced the exclusivity rule – custody must be based exclusively on the charge or warrant for which sentence is imposed – as the federal rule and the rule in most states.

    Justice Ziegler also dissented. Noting an “utterly deficient record,” Ziegler said a defendant must prove “in custody status” based on the Wisconsin warrant, which Carter failed to do. Like Justice Roggensack, Ziegler argued that “in custody status” results from a legal process.

    “[S]entence credit for being in custody on an Illinois charge should not be awarded to the defendant who has shown merely that a police report suggests that law enforcement knew about an outstanding Wisconsin warrant at the time he was initially arrested in Illinois,” she wrote.

    Attorneys 

    Assistant State Public Defender Ellen Henak represented Carter. Warren Weinstein, assistant attorney general, represented the state.


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