Sentence Credit – Wis. Stat. § 973.155(1)(a) – Credit for Time Spent in Custody in Connection with Course of Conduct for Which Sentence Was Imposed – Credit Denied
State v. Harrison, 2020 WI 35 (filed 17 April 2020)
HOLDING: The defendant was not entitled to sentence credit under Wis. Stat. section 973.155 because the days he spent in custody were not in connection with the course of conduct for which sentence was imposed.
SUMMARY: In 2011, the circuit court sentenced Harrison to concurrent sentences of three years’ confinement followed by three years’ extended supervision for crimes charged in 2007 and 2008 (hereinafter the 2007 and 2008 cases). In 2012, the circuit court sentenced Harrison to 13 years’ confinement and seven years’ extended supervision for a crime charged in 2010 (the 2010 case), which sentence was to run consecutively to those imposed in the 2007 and 2008 cases. In 2013, the circuit court sentenced Harrison to 30 years’ confinement and 10 years’ extended supervision for a crime charged in 2011 (the 2011 case), which sentence was to run consecutively to all other previously imposed sentences.
In 2015, the Wisconsin Supreme Court set aside the conviction in the 2010 case, and Harrison was not retried. In 2017, the circuit court vacated the conviction in the 2011 case after a federal court granted a writ of habeas corpus in that case.
After the circuit court vacated the conviction in the 2011 case but before Harrison was resentenced, he moved for sentence credit pursuant to Wis. Stat. section 973.155(1)(a). “Specifically, he argued that from February 2014, when he would have begun extended supervision on the sentences for the 2007 and 2008 cases but for confinement on the sentences for the 2010 and 2011 cases which later were set aside, to January 2017, when his sentence for repeated sexual assault of a child was vacated pursuant to the writ of habeas corpus [the 2011 case], he was not confined under a valid sentence. He moved to credit this period (February 2014 to January 2017) against the time he was to serve on extended supervision for the 2007 and 2008 cases” (¶ 12).
The circuit court granted the defendant’s motion, viewing its decision as “fundamentally fair” (¶ 13). In an unpublished opinion, the court of appeals affirmed but took a different approach. It adopted what it called the “advance-the-commencement-of-valid-sentences concept.”
“Under this approach, invalid sentence time is ignored, which has the effect of advancing to an earlier point on the timeline the commencement of all valid sentences. Applying that approach, the court of appeals reasoned, ‘Harrison’s periods of extended supervision in the two cases in which the convictions were not vacated should be deemed to have begun as soon as Harrison finished serving the initial confinement portion of his sentences in his only valid cases: the two in which his convictions were not vacated.’ The court of appeals, accordingly, reversed the circuit court order granting sentence credit but remanded with directions to advance the commencement of the terms of extended supervision for the 2007 and 2008 cases. Importantly, the court of appeals noted that Harrison had not been resentenced in the 2011 case” (¶ 15) (internal quotations and citations omitted).
In a majority opinion authored by Chief Justice Roggensack, the supreme court reversed the court of appeals. It concluded that Harrison was not entitled to sentence credit under Wis. Stat. section 973.155 because the days he spent in custody were not in connection with the course of conduct for which sentence was imposed; that is, the defendant’s conduct in the 2010 and 2011 cases was not related to the course of conduct in the 2007 and 2008 cases.
“He also is not entitled to sentence credit pursuant to Wis. Stat. § 973.04 because sentences for the 2007 and 2008 crimes were not vacated and re-imposed for the same crimes and the requested credit did not arise from vacated sentences for those crimes. Furthermore, we conclude that the court of appeals erred by advancing the commencement of Harrison’s terms of extended supervision for the 2007 and 2008 cases. Whether to employ advancement is a public policy decision better left to the legislature” (¶ 66).
Justice Dallet filed a concurring opinion that was joined in by Justice A.W. Bradley.
Marital Settlement Agreements – Constructive Trusts
Pulkkila v. Pulkkila, 2020 WI 34 (filed 14 April 2020)
HOLDING: 1) The marital settlement agreement in this case did not establish the exclusive remedy for breach of a life insurance provision contained therein. 2) Because the circuit court did not make findings that would support imposition of a constructive trust, the court of appeals erroneously imposed a constructive trust on the life insurance proceeds.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
SUMMARY: James and Joan Pulkkila were married in 1996 and divorced in 2009. At the time of the divorce they had two minor children. James and Joan arrived at a marital settlement agreement (MSA), which the circuit court incorporated in the divorce judgment. The MSA contained a provision requiring James and Joan to maintain life insurance with their children as beneficiaries. In this litigation, Joan alleged that James breached this provision when he made Lynnea Landsee-Pulkkila, whom he married in 2013, the sole beneficiary of his $250,000 life insurance policy. James died in an accident in 2015.
Joan sought to have a constructive trust placed on the proceeds. Lynnea opposed the imposition of a trust because the MSA contained the following language: “If either party fails for any reason to maintain any of the insurance required under this article, there shall be a valid and provable lien against his or her estate in favor of the specified beneficiary to the extent of the difference between the insurance required and the actual death benefits received” (¶ 9). Lynnea argued that this language establishes that a lien on James’ estate is the exclusive remedy for breach of the life insurance provision.
The circuit court concluded that the MSA unambiguously provides that a lien on James’ estate is the exclusive remedy for breach of the life insurance provision. It never reached the issue of whether to apply a constructive trust and found no facts and took no evidence that would relate to the imposition of a trust.
In an unpublished opinion, the court of appeals reversed the circuit court. It concluded that a constructive trust was not only available in this case but that it was necessary to accomplish the intent of the MSA (see ¶ 32). Said the court of appeals: “Equity might allow for James’ wrongdoing if his estate had $250,000, but it did not. It had $5600” (¶ 16).
In a majority opinion authored by Justice A.W. Bradley, the supreme court reversed the decision of the court of appeals. It held that whether the MSA is labeled as a judgment of the circuit court or as a contract, “[t]he MSA is clear on its face – although a lien on James’s estate is plainly an available and mandatory remedy for breach of the life insurance provision, there is no limiting language that would indicate that it is the only remedy for such a breach” (¶ 24).
Nonetheless, the supreme court concluded that the court of appeals erred when it applied a constructive trust to the life insurance proceeds in Lynnea’s possession. “[A] constructive trust will be imposed only where there is a demonstration of unjust enrichment accompanied by an additional showing of actual or constructive fraud, duress, abuse of confidence, mistake, commission of a wrong, or by any form of unconscionable conduct that has caused the one against whom a trust is imposed to either obtain or hold the legal title to property which that person ought not in equity and good conscience to enjoy” (¶ 30) (internal quotations and citation omitted).
The circuit court did not examine the relevant facts because it did not reach the constructive trust issue, and the court of appeals did not examine the relevant facts because the circuit court had found none (see ¶ 34). Accordingly, the supreme court remanded to the circuit court “to engage in factfinding and subsequently determine whether to impose a constructive trust in the first instance” (¶ 41).
Justice R.G. Bradley filed a dissenting opinion. She argued that MSAs are contracts and that the exclusive remedy available in this case is a lien against James’ estate, consistent with “the unambiguous words of the parties’ MSA” (¶ 71).
Justice Dallet and Justice Hagedorn did not participate in this decision.
Mental Health Law
Prisoners – Involuntary Medication – Due Process
Winnebago Cty. v. C.S., 2020 WI 33 (filed 10 April 2020)
HOLDING: Involuntary medication orders issued for state prison inmate under statutes that did not require a finding of dangerousness were unconstitutional.
SUMMARY: C.S. has schizophrenia and was an inmate in the Wisconsin prison system. While incarcerated, C.S. was committed and determined incompetent to refuse medication pursuant to Wis. Stat. section 51.61(1)(g) and, therefore, was the subject of multiple involuntary-medication court orders. Those orders were issued pursuant to Wis. Stat. sections 51.20(1)(ar) and 51.61(1)(g)3., neither of which require a finding of dangerousness.
In a published opinion, the court of appeals upheld the statutes as facially constitutional based on legitimate concerns about the patient’s “general welfare” irrespective of his dangerousness. See 2019 WI App 16.
The supreme court reversed and found the statutes unconstitutional, in a majority opinion authored by Justice Ziegler. “We conclude that Wis. Stat. § 51.61(1)(g)3. is facially unconstitutional for any inmate who is involuntarily committed under Wis. Stat. § 51.20(1)(ar), which does not require a determination of dangerousness, when the inmate is involuntarily medicated based merely on a determination that the inmate is incompetent to refuse medication. Incompetence to refuse medication alone is not an essential or overriding State interest and cannot justify involuntary medication” (¶ 5).
Individuals who are not inmates can be committed only upon a finding that the person is mentally ill, a proper subject for treatment, and dangerous (see ¶ 16). A dangerousness finding is not necessary to involuntarily commit an inmate (see ¶ 17). The majority discussed the statutes governing the involuntary medication of inmates and noninmates (see ¶ 20). The state could demonstrate no “essential” or “overriding” state interest that justified involuntary medication absent a finding of dangerousness (¶ 33).
Justice R.G. Bradley dissented. She said that the inmate had no protectable right under the Due Process Clause (see ¶ 47). She also criticized Wisconsin’s adherence to the view that statutes are upheld unless it is shown they are unconstitutional beyond a reasonable doubt.
Justice Hagedorn also dissented, joined by Chief Justice Roggensack. They said that the majority opinion “announces a substantive due process right for prisoners who a court has determined are incapable of making decisions regarding medication to nonetheless refuse that medication unless they have been found dangerous by a court. When wading in the waters of substantive due process, we are toying with the constitutional authority the people have given us. … Each new judicial expansion of substantive due process risks further degradation of the constitution's command that policy decisions are to be made by the other branches of government, not us” (¶ 71).
Involuntary Commitments – Recommitment Hearings – Dangerousness Findings
Langlade Cty. v. D.J.W., 2020 WI 41 (filed 24 April 2020)
HOLDING: Circuit courts are required to make specific findings in recommitment hearings, and the record in this case did not support a finding of “dangerousness.”
SUMMARY: D.J.W. was involuntarily committed and also subject to an involuntary-medication order. Both orders were extended after hearings. D.J.W. appealed, contending that the county had not made a showing that he was still dangerous. In an unpublished decision, the court of appeals affirmed.
The supreme court reversed in a majority opinion authored by Justice A.W. Bradley. Whether the county met its burden was a mixed question of law and fact (see ¶ 24). The court addressed the various statutes that govern involuntary commitments under Wis. Stat. chapter 51, especially as they relate to dangerousness. “To prevail in a recommitment proceeding, the County must prove the same elements necessary for the initial commitment by clear and convincing evidence – that the patient is (1) mentally ill; (2) a proper subject for treatment; and (3) dangerous to themselves or others” (¶ 31).
For recommitments, however, “there is an additional manner of proving dangerousness provided by Wis. Stat. § 51.20(1)(am)” (¶ 32). The “additional manner” effectively substitutes the various overt-act requirements for an initial commitment with a showing that there is a “substantial likelihood, based on the subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn” (id.).
The supreme court found the record before it “quite unhelpful” in resolving the issues on appeal. “In order to avoid this problem in the future, we determine that going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of § 51.20(1)(a)2. on which the recommitment is based” (¶ 40).
The requirement “is manifest in the language of Wis. Stat. § 51.20(1)(am), which references the dangerousness pathways of § 51.20(1)(a)2.” (¶ 41). Such findings better reflect the “important liberty interest at stake” and the “serious nature of the proceeding” (¶ 43). They also facilitate sound judicial decision-making, at both the trial and appellate court levels (see ¶ 44). The supreme court then took up the “unhelpful” record in this case, finding it insufficient to support the necessary finding of dangerousness required for a recommitment (¶ 58).
Chief Justice Roggensack dissented, in part to foster recognition that there is a class of “fragile” mentally ill persons who “are dangerous to themselves because their illness prevents them from understanding the advantages and disadvantages of treatment and, as demonstrated by their treatment history, they need care or treatment to prevent further disability or deterioration and they have a substantial probability, if left untreated, of losing the ability to function independently in the community or of losing cognitive or volitional control over their thoughts or actions” (¶ 62).
The Chief Justice was satisfied that the record supported a finding of dangerousness as provided by the “fifth criterion” of Wis. Stat. section 51.20(1)(a)2.e., as explained in a prior case. See State v. Dennis H., 2002 WI 104, 255 Wis. 2d 359, 647 N.W.2d 851.
Justice R.G. Bradley also dissented. She declined to join either opinion because, she said, she believed the case was mooted by D.J.W.’s death.
Medical Malpractice – “Alternative Methods” Jury Instruction
Barney v. Mickelson, 2020 WI 40 (filed 24 April 2020)
HOLDING: The circuit court properly read the alternative-methods instruction to the jury.
SUMMARY: This is a medical malpractice action arising out of the severe neurological defects suffered by London Barney during birth. According to the plaintiffs, London suffered fetal oxygen deprivation, which the defendant physician failed to diagnose by not using other, supposedly more accurate methods of monitoring the baby’s heart rate.
Sixteen experts testified at trial. The judge read the jury the alternative-methods instruction. Essentially, the instruction states that doctors may select any recognized method in treating a patient. See Wis JI-Civil 1023. The jury returned a verdict for the defense. In an unpublished opinion, the court of appeals reversed on grounds that the alternative-methods instruction did not apply.
A unanimous supreme court reversed the court of appeals in a decision authored by Justice Dallet. “The trial testimony demonstrates that the experts disputed whether the external monitor was continuously and accurately tracing London’s heart rate. Further, there was a dispute about whether continuing with the external monitor in the last 90 minutes of Mrs. Barney’s labor was a reasonable alternative to a pulse oximeter or a fetal scalp electrode” (¶ 27).
In a prior case (Miller v. Kim, 191 Wis. 2d 187, 528 N.W.2d 72 (Ct. App. 1995)), the experts had been unanimous that only one diagnostic method existed. Here the experts disputed several different methods. There was “ample evidence” in the record to support the alternative-methods instruction (¶ 31).