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  • November 23, 2021

    Supreme Court Affirms ‘Connected to Conduct’ Rule for Sentence Credit Calculation

    A man who served nearly 12 years in prison out-of-state after being sentenced in Wisconsin is not entitled to have that time credited against his Wisconsin sentences because it was not connected to the conduct underlying the Wisconsin sentences, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    Drunk Driving

    Nov. 23, 2021 – A man who served nearly 12 years in prison out-of-state after being sentenced in Wisconsin is not entitled to have that time credited against his Wisconsin sentences because it was not connected to the conduct underlying the Wisconsin sentences, the Wisconsin Supreme Court has ruled.

    In State v. Lira, the supreme court affirmed the link between Wis. Stat. section 973.15 and section 973.155 and restated that the test under section 973.155(5) for whether an inmate is entitled to sentence credit for a subsequent sentence requires a factual connection, not merely a procedural one.  

    ​​Prison Time in Three States​​​

    After Cesar Antonio Lira was convicted in 1992, the Milwa​ukee County Circuit Court sentenced him to 10 years. Lira was paroled in September 1996.

    The court revoked Lira’s parole in January 1999, after he was charged in Milwaukee County with four crimes. Lira pled guilty to two of the crimes.​

    Upon Lira’s release from prison in January 2001, the court placed him on parole for the 1992 conviction and probation for the 1999 convictions.

    When a corrections agent tried to take Lira into custody in November 2002 for allegedly violating his conditions of release, Lira escaped.

    Agents from the Wisconsin Depart​​ment of Justice arrested Lira in January 2004. Lira’s probation officer placed holds on Lira for the 1992 and 1999 cases, and the district attorney charged Lira with endangering safety by use of a dangerous weapon.

    In April 2004, Lira escaped and fled with his girlfriend to Oklahoma. Wisconsin authorities charged him with escape. The court revoked Lira’s probation and parole, removed the stay on the sentence imposed in 1999, and ordered his confinement on the 1992 case.

    Jeff M. Brown Jeff M. Brown​ is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    After a high-speed chase in Oklahoma that left his girlfriend dead, Lira pled guilty to second-degree murder and other charges. In September 2004, an Oklahoma court sentenced Lira to 20 years in prison.

    Oklahoma officials transported Lira to Wisconsin in May 2005 on a detainer, to face the escape and endangering safety charges. Authorities released Lira by mistake in June 2005 and he fled to Texas.

    After Lira was arrested in San Antonio in December 2005, Texas authorities sent him to Wisconsin in January 2006.

    Lira entered a global plea agreement on the escape and endangering charges from 2004 and the bail jumping charge from 2005. The Milwaukee County Circuit Court sentenced Lira to three years’ incarceration and three years extended supervision, both to be served consecutive to his Oklahoma sentence.

    Wisconsin sent Lira to Oklahoma in April 2006, under the terms of the Interstate Agreement on Detainers (IAD), to finish serving out the Oklahoma sentence. Lira finished the sentence in June 2017, and Oklahoma sent him to Wisconsin.

    Court Bound by Legislature

    Section 973.15(5) entitles a prisoner “who is made available to another jurisdiction” to a credit for the time spent in custody in that jurisdiction. But that subsection is expressly limited by the terms of section 973.155, “the state’s ‘foundational sentence-credit statute,’” Ziegler wrote.

    Under section 973.155(5), a prisoner is entitled to sentence credit only for time that “has a factual connection to the offense for which he or she was convicted,” Ziegler noted.

    Because the policy behind section 973.155(5) is that no prisoner serve more time than he or she was sentenced to, the supreme court has held that prisoners “are not entitled to credit already counted toward a separate and consecutive sentence.”

    Lira did not contest that the 1992 and 1999 sentences lacked a factual connection with the high-speed chase in Oklahoma. Neither did Lira contest that the sentences resulting from the global plea deal he agreed to in 2006 ran consecutively with the Oklahoma sentences.

    Rather, Lira argued that requiring that any sentence he served out-of-state be factually connected to the conduct for which he was sentenced in Wisconsin would render the “made available” test in section 973.15(5) superfluous. But the legislature knew what it was doing when it made section 973.15 subject to section 973.155, Zielger wrote.

    “The legislature did not choose to create a new standard when a convicted offender is transferred to another jurisdiction, nor did it leave the question unresolved for the judiciary to fashion an appropriate test. Instead, it explicitly linked section 973.15(5) to Wis. Stat. section 973.155. We are bound to uphold that decision.”

    Effect of Court of Appeals Decisions

    Lira also argued that the supreme court was bound by decisions from the Wisconsin Court of Appeals, which under section 752.41(2) have statewide effect.

    Specifically, Lira argued that State v. Brown, in which the court of appeals held that the factual connection test required by section 973.155 was the incorrect test to use in calculating sentence credit under section 973.15(5), applied to his case.  

    Regardless of the precedential effect of court of appeals decisions, wrote Ziegler, “the supreme court ‘has the power to overrule, modify, or withdraw language from a published opinion of the court of appeals … It is this court’s responsibility to interpret statutes de novo, and a plain meaning reading of Wis. Stat. section 973.15(5) and 937.15(5) conflicts with the court of appeals decision in BrownBrown’s interpretation of sections 973.15(5) and 937.155 is ‘objectively wrong’ and must be overturned.”

    The supreme court also rejected Lira’s argument that interpreting section 937.15(5) as subject to section 973.155 would violate the IAD.

    That would be true “only if Wisconsin had transferred Lira to Oklahoma on a detainer for sentencing there, Ziegler wrote. “Instead, Oklahoma had transferred Lira on a detainer to Wisconsin to face sentencing here.”

    Moreover, Lira’s interpretation of the IAD would lead to bad policy outcomes, Ziegler wrote.

    “If a defendant is entitled to sentence credit for the entire time he is in foreign custody so long as he was a ‘convicted offender’ that was ‘made available to [the other] jurisdiction,’ Wisconsin authorities would be strongly incentivized to not transfer prisoners to foreign jurisdictions. By doing so, the transfer could effectively eliminate a Wisconsin sentence and produce an importer windfall for a prisoner.”

    Procedural Connection Not Enough  

    Lira was not entitled to credit for the ten-and-a-half months he served in Texas and Wisconsin in 2005 and 2006. Even if Lira was a “revoked probationer” under the terms of section 304.072(5), that subsection is subject to section 973.155, and those ten-and-a-half-months were not factually connected to the conduct underlying Lira’s 1992 and 1999 sentences, Ziegler wrote.

    “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.”

    The supreme court acknowledged that Lira’s endangering safety charge in 2004 triggered the revocation of his 1992 case and that the removal of the stay in the 1999 case established a procedural connection between the periods of confinement. But section 973.155(5) requires a factual connection, Ziegler wrote, and “[m]ere ‘procedural connection’ is insufficient to warrant sentence credit.”

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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