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Defendant allowed dual credit for presentence custody served for a burglary and an unrelated civil commitment

State v. Joseph T. Trepanier, 2014 WI App 105; case activity

This case presents an issue of first impression: Whether a defendant is entitled to sentence credit for time spent in presentence custody for a burglary when he was also in custody pursuant to an unrelated civil commitment for contempt of court.  The State, naturally, opposed dual sentence credit. But the winner is . . . the defendant!

Trepanier was arrested and placed in custody for burglary on November 11, 2012, and the court set a $500 cash bail.  Ten days later, in an unrelated case, Trepanier was held in contempt of court for failure to pay a fine.  The court imposed a 6-month jail term with a purge condition requiring him to pay $1,000.  Trepanier began serving his jail sentence for contempt that same day.  The sentencing hearing on the burglary conviction occurred 5 months later.

The issue on appeal was whether Trepanier should receive sentence credit for the 171 days between his November 11, 2012 arrest for burglary and the date of sentencing, even though he was sitting in jail for contempt (and for failing to pay the purge condition) for 161 of those days.  Applying §973.155(1)(a), and distinguishing State v. Way, 113 Wis. 2d 82, 85-87, 334 N.W.2d 918 (Ct. App. 1983), the court of appeals held that time Trepanier served for civil contempt also applied toward his burglary sentence.

[In Way] we held a court has authority to make a civil commitment and a criminal sentence consecutive to one another, even though the civil commitment is not itself a sentence. Way, 113 Wis. 2d at 86-87. We explained the purpose of a civil commitment is to coerce payment of an unpaid fine, and “if courts do not have the authority to make commitments consecutive, then the statutory power to order commitment for nonpayment of a fine would be meaningless.” Id. at 87. The circuit court reasoned granting Trepanier credit against his burglary sentence for time spent in custody on the civil commitment would similarly undermine the commitment order’s coercive effect. Slip op. ¶22.

We disagree. From the date Trepanier began serving his six-month jail term under the civil commitment order until he was sentenced on the burglary charge, Trepanier had an incentive to pay the $1000 purge condition—doing so was one step he needed to take to be released from jail. That Trepanier also needed to pay his $500 cash bail on the burglary charge in order to be released does not obviate the civil commitment’s coercive effect. This is not a situation in which Trepanier had no reason to pay the $1000 purge condition because doing so would have no effect on his ability to get out of jail. Further, because the circuit court made Trepanier’s burglary sentence consecutive to the six-month jail term, the commitment continued to have a coercive effect after Trepanier was sentenced. Neither the circuit court nor the State has explained why it was also necessary to deny Trepanier sentence credit against his burglary sentence in order for the commitment to serve its coercive purpose.  Slip op. ¶23.

The State tried to use two “no dual sentence credit” cases to avoid this outcome, but the court of appeals distinguished them. See State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988) and State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985). Boettcher, the court explained, holds that when an offender is serving consecutive sentences, he gets credit for presentence confinement connected to both sentences only against the first sentence imposed. Here, Trepanier is not seeking credit against consecutive confinements for time he spent in pretrial custody in 2 separate cases. Slip op. ¶14. Meanwhile, Beets holds that a defendant is not entitled to sentence credit for periods of presentence custody during which he was serving an unrelated sentence because he would have been in custody absent the second set of charges. But those aren’t the facts here either:

Conversely, Trepanier would not necessarily have been in custody absent the burglary charge—he could have obtained release from custody by paying the civil commitment’s $1000 purge condition. The civil commitment is therefore distinguishable from the sentence in Beets and the juvenile commitment in Johnson. Slip op. ¶12.

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