When sentence credit is granted after a convicted defendant’s parole is revoked, the additional credit must be applied to the parolee’s reincarceration time, and not—as the Department of Corrections and the court of appeals thought—to any period of parole remaining after the reincarceration time is served.
Obriecht was revoked from parole on an indeterminate sentence and reincarcerated in prison for a portion of the “remainder of the sentence,” which consists of “the entire sentence, less time served in custody prior to parole,” § 302.11(7)(am). (How much of the remaining time Obriecht got isn’t specified, but it was less than the entire amount remaining.) After he was revoked and reincarcerated, Obriecht successfully moved for additional sentence credit for time he’d spent in custody before he was paroled. (¶¶7-14).
DOC refused to apply the credit to reduce the reincarceration time, and instead applied the credit to reduce the remaining parole time he would have to serve after he finished his term of reincarceration. DOC did this based on its reading of § 302.11(7)(b), which says the offender “shall be incarcerated for the entire period of time determined by the reviewing authority unless paroled earlier….” The court of appeals agreed with DOC’s conclusion that the plain language of the statute precluded applying the credit to the reincarceration time. (¶¶15-18). The supreme court holds that DOC and the court of appeals were wrong.
The court starts from the general rule that:
¶24 When sentence credit is applied at the time of sentencing,.. the circuit court should apply sentence credit to the term of incarceration. State v. Wolfe, 2001 WI App 66, ¶1, 242 Wis. 2d 426, 625 N.W.2d 655 (credit must be applied to incarceration term, not consecutive stayed sentence); Wis. Stat. § 973.155(3) (computing custody as if it were served time in the institution to which the defendant has been sentenced).
In the revocation context, the “sentence” to which the sentence credit statute applies is the original sentence imposed by the circuit court. State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 384-86, 260 N.W.2d 727 (1978); see also § 304.072(4) (“[t]he 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 s. 973.155.”). (¶¶34-35).
¶35 …. Therefore, when Obriecht’s parole was revoked, the seven-year indeterminate sentence for Obriecht’s felony conviction caused reincarceration. Accordingly, the DHA’s reincarceration order did not establish reincarceration as a new “sentence.” …. Rather, it was a continuation of the sentence meted out by the circuit court judge. Therefore, if Obriecht had not received all the sentence credit that was available to apply to the felony sentence when that sentence was imposed, he could have received it when his parole was revoked.
¶36 Stated otherwise, the computation of sentence credit is governed by Wis. Stat. § 973.155(3) that provides: “The credit provided in sub. (1) or (1m) shall be computed as if the convicted offender had served such time in the institution to which he or she has been sentenced.” The plain language of § 973.155(3) demonstrates that Obriecht is entitled to have the total amount of time he must spend in prison reduced by the amount of time he has spent in custody outside of prison when custody is in connection with the conduct for which the sentence is imposed. [State v.] Elandis Johnson, [2009 WI 57,] 318 Wis. 2d 21, ¶66[, 767 N.W.2d 207]. ….
The statute that DOC and the court of appeals cited relied on doesn’t apply here. The language, structure, and statutory history of § 302.11 show it governs mandatory release for pre-Truth-in-Sentencing prison sentences (¶¶44-46), and sub. (7)(b) of that statute simply states the general rule that revoked parolees are not subject to early release and then provides a specific example that revoked parolees are not subject to mandatory release. Thus, the statute “does not address the problem caused by custody incurred before sentencing that was not granted at sentencing.” (¶45).
While § 302.11(7) covers revocation of parole, the statute dealing with revocation of extended supervision, § 302.113(9), uses virtually identical language. Thus, the holding in this case will also govern how DOC applies additional credit granted to offenders after they are revoked from ES.
This decision corrects the failings in the court of appeals’ reasoning, which (as noted in our post on the decision) paid insufficient attention the rest of the language in § 302.11(7) and ignored case law recognizing that it is improper to effectively nullify sentence credit that has been earned, State v. (Eliseo) Brown, 2010 WI App 43, ¶8, 324 Wis. 2d 236, 781 N.W.2d 244, citing State v. Wolfe, 2001 WI App 66, 242 Wis. 2d 426, 625 N.W.2d 655. That said, the majority opinion is problematic because it goes beyond deciding the narrow legal issue presented and addresses whether all of the 107 days of credit Obriecht asked for were connected with the sentence on which he was revoked.
Obviously, satisfying the “connection” requirement is necessary to prove entitlement to credit, as the majority rightly notes in its discussion of the general principles of sentence credit under § 973.155. (¶¶25-27). But the parties weren’t arguing about the connection between the 107 days of custody and the sentence on which he was revoked; they were only fighting about how that 107 days would be applied. The state didn’t object to Obriecht’s request for 107 days in the trial court (¶14) or in its briefs in the court of appeals or the supreme court; it wasn’t until oral argument that the state “shifted its argument” and somehow suggested that not all 107 days were connected the sentence on which Obriecht was reincarcerated. (¶¶19, 20). Not raising a claim till oral argument ordinarily waives (or, in today’s nomenclature, forfeits) the claim, City of Milwaukee v. Christopher, 45 Wis. 2d 188, 190, 172 N.W.2d 695 (1969) (objection to timeliness of appeal was deemed waived where it was raised for the first time at oral argument), but that’s not what happens to the state’s argument in this case. While an appellate court can always excuse a waiver or forfeiture, the majority neither acknowledges it is doing that nor explains why it does so.
Moreover, the fact that the connection issue wasn’t raised until oral argument means it wasn’t fully briefed and argued by the parties. The rule precluding new arguments at oral argument (or in a reply brief) is grounded in fundamental fairness, for allowing a party to raise an issue at oral argument that was not briefed prevents the opposing party from having an adequate opportunity to respond. A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 490-93, 588 N.W.2d 285 (Ct. App. 1998). In addition, the lack of full briefing and argument means the majority must scour the record to flesh out a basis for the state’s newly-minted claim; that’s contrary to the rule than an appellate court “cannot serve as both advocate and judge” by developing arguments for the parties. State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
On top of those reasons for not addressing the issues is the problem posed by the record in this case, which even the majority says is “somewhat hard to follow….” (¶5). As described by the concurring justices (Bradley, joined by Abrahamson and Crooks) who agree any credit must be applied to Obriecht’s reincarceration time but don’t join the majority’s reaching out to decide the connection issue:
¶52 …[H]alf of the record is missing or has been destroyed. Notably, for computation purposes, it is the important half which covers the time periods at issue in this case. Instead, we are left to cobble together the events based on a record with discrepancies between the portions of the record available and the parties’ descriptions of events.
Finally, apart from the problems with the record, it appears (based on the facts it has gleaned from the defective record) that the majority errs in its legal analysis of the connection issue. The majority concludes that all but 42 of the days Obriecht was seeking credit for were in connection only with a seven-year prison sentence for multiple misdemeanors, while his reincarceration time was imposed only for a seven-year sentence for a felony imposed to run consecutively to the misdemeanor sentence. (¶¶7-12, 28-32, 37-41). But according to the majority’s recitation of the facts, Obriecht got the consecutive felony sentence while he was in prison serving the misdemeanor sentences. (¶¶10-12). Under § 302.11(3), all consecutive indeterminate sentences must be computed as one continuous sentence, and under Ashford v. Division of Hearings & Appeals, 177 Wis. 2d 34, 43–44, 501 N.W.2d 824 (Ct. App. 1993), periods of parole on consecutive sentences are aggregated and treated as one continuous period. Thus, upon revocation of parole, the “remainder of the sentence” under § 302.11(7)(am) is equal to the total sentence aggregate consecutive sentences minus the time spent in custody prior to parole. It doesn’t matter that one of the sentences was for misdemeanors while the other was for a felony, for § 302.11(7)(am) doesn’t distinguish between the portion of the consecutive sentence attributable to felony offenses versus the portion attributable to misdemeanor offenses. State ex rel. Darby v. Litscher, 2002 WI App 258, ¶13, 258 Wis. 2d 270, 653 N.W.2d 160.
The upshot is this: For the purposes of parole, Obriecht had one continuous 14-year sentence, which means that when he was paroled in 2011 (¶13) he was serving the remainder of both the misdemeanor and the felony sentences. Inexplicably, however, the majority says he was paroled only on the felony because “he had completed the misdemeanor sentences.” (¶13 n.9). Based on that mistaken conclusion the majority holds that Obriecht was reincarcerated only for the felony, and that any time in custody in connection with the misdemeanor sentences can’t be credited to that reincarceration. (¶¶7-12, 37-42). In fact, as Ashford shows, the reincarceration time is for the misdemeanor as well as the felony, and therefore the misdemeanor credit must be also be applied to the reincarceration time. This error may have been avoided had the issue been fully litigated—yet another reason why the majority should have ordered further briefing (or a remand to the circuit court for a fact-finding hearing) before addressing the connection between the custody Obriecht claimed and the sentence on which he was reincarcerated.