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Defense win: Person revoked from ES entitled to sentence credit until return to prison

State v. Larry Davis, 2016AP1416-CR, District 2, 7/12/17 (recommended for publication); case activity (including briefs)

Applying § 304.072(4) and State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713, the court of appeals holds that a person who is revoked from extended supervision resumes serving his sentence when he is received in the prison system, not when revocation occurs; he is therefore entitled to sentence credit up to the date he returns to prison.

Davis was on ES in April 2015 when he was arrested and charged with new crimes. His ES was revoked on July 8, but he wasn’t returned to prison until July 31. He was later convicted of some of the new charges and sentenced to imprisonment concurrent to the prison sentence he had resumed serving. The circuit court refused to grant him sentence credit on the new sentences for his custody between July 8 and July 31, reasoning that Davis’s prior sentence began running as of the date of revocation and “severed” the connection between his custody and the pending charges, State v. Beets, 124 Wis. 2d 372, 378-79, 369 N.W.2d 382 (1985) (sentence imposed after revocation of probation severed connection between custody and pending charges). (¶¶2-4).

The state agrees Davis is entitled to the credit (¶¶8-9), and so does the court of appeals:

¶10     Wisconsin Stat. § 304.072(4) provides:

The sentence of a revoked parolee or person on extended supervision resumes running on the day he or she is received at a correctional institution subject to sentence credit for the period of custody in a jail, correctional institution or any other detention facility pending revocation according to the terms of [Wis. Stat. §] 973.155.

In Presley, the State took the position “that Presley was serving a sentence once the extended supervision was revoked.” Presley, 292 Wis. 2d 734, ¶14. Rejecting this position, we pointed out that § 304.072(4) “unambiguously states that the sentence begins once the offender is transported and received at a correctional institution, not when the revocation occurs.” Presley, 292 Wis. 2d 734, ¶14. Considering Presley and § 304.072(4), we hold that Davis’ sentence on his earlier conviction resumed when he was received at Dodge Correctional on July 31, 2015. With his reception at the institution, his custody was no longer “in connection with” the course of conduct for which he was sentenced in this case; rather, his custody was then solely “in connection with” his earlier conviction. This July 31, 2015 resuming of his sentence in the earlier case then, not the July 8, 2015 revocation decision, severed the connection between the two cases. Thus, Davis is entitled to sentence credit from the time he was arrested until July 31, 2015….

This resolves an issue percolating since the legislature changed the statutes governing ES revocation after Presley was decided. When Presley was decided the circuit court made the reconfinement decision at a hearing that looked a lot like sentencing. § 302.113(9)(am) (2007-08); State v. Swiams, 2004 WI App 217, 277 Wis. 2d 400, 690 N.W.2d 452. Reconfinement hearings were eliminated in 2009 and DOC was given the job of deciding the length of reconfinement. That raised the question of whether, despite Presley, the revocation decision now qualified as a “sentencing” that severs the connection between a defendant’s custody and new charges. As the court now holds, the plain language of § 304.072(4) shows the answer is “no.”

Note that because Davis’s new sentences are concurrent to his old one, Davis is entitled to “dual” credit toward both old and new sentences up until the severing of the connection between his custody and the new case. State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989); State v. (Elandis) Johnson, 2009 WI 57, 318 Wis. 2d 21, 767 N.W.2d 207. Had the new sentences been ordered to run consecutively to his existing prison sentence, he wouldn’t have been entitled to any credit toward them. State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988).

Davis also challenges the circuit court’s imposition of an “absolute sobriety” restriction as a condition of ES, arguing it’s not reasonably related to rehabilitation or public protection, State v. Stewart, 2006 WI App 67, ¶11, 291 Wis. 2d 480, 713 N.W.2d 165. The court of appeals upholds the condition:

¶15     The State detailed for the sentencing court Davis’ noteworthy history of violence and acts of domestic abuse and informed the court that the “domestic violence supplemental report documented by the police officers who investigated this” indicated “a prior history of violence” and “multiple risk factors,” including that Davis “abuses alcohol and/or drugs.”…. Thus, the sentencing court had before it information indicating Davis has a history of substance abuse. While the State did not provide specifics as to the reasons behind the investigating police officers’ determination that Davis has such a history, the sentencing court was entitled to err on the side of caution—for the sake of Davis and the community—and rely upon the officers’ representation, via the State, over the representation of Davis’ counsel that Davis did not have a substance abuse problem because he had some “clean drug screens” while on supervision and because counsel personally was not aware of Davis having a substance abuse problem.

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