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Sentence Credit – Concurrent Sentences: Each Must Be Analyzed Separately for “Connection,” Though Imposed at the Same Time

State v. Elandis D. Johnson, 2009 WI 57, affirming 2008 WI App 34
For Johnson: Meredith J. Ross, UW Law School

Issue/Holding:

¶76      We conclude that Wis. Stat. § 973.155 imposes no requirement that credit applied toward one sentence also be applied toward a second sentence if the basis for applying the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same time. The fact that sentences are concurrent and are imposed at the same time does not alter the statutory mandate that credit toward service of a sentence be based on custody that is “in connection with” the course of conduct giving rise to that sentence: i.e., custody factually connected with the course of conduct for which sentence was imposed. Because Johnson cannot satisfy this requirement, the decision of the court of appeals is affirmed.

Clear enough: just because sentences are concurrent and imposed at the same time doesn’t mean each is awarded the same amount of credit. Johnson was on a catch-and-release program: arrested, released on bond, arrested on a new offense, until finally he could no longer post cash bond. Eventually the various charges got resolved at the same time, and even though his sentences were (as relevant to the appeal) concurrent, credit toward each was differential, reflecting the different events converging on disposition. Lengthy discussion by the court of the “in connection with” requirement, more or less captured by the following:

¶46      The statute poses a simple test: whether the custody for which sentence credit is sought was “in connection with the course of conduct for which sentence was imposed.” Wis. Stat. § 973.155(1)(a). Admittedly, the answer to this statutory test is not always simple.¶47      Calculating the correct number of days that need to be credited to each of Johnson’s concurrent sentences requires that we examine separately each sentence and the time spent in presentence custody “in connection with” each sentence. We cannot, as Johnson’s argument attempts to do, conflate all the concurrent sentences imposed on the same day and make a credit determination as if there were only one overall sentence imposed.

Note that when Johnson picked up his last charge he was still “free” on bond on the first case, with that bond never being revoked. The court of appeals recognized the significance of the unchanged bond, 2008 WI App 34:

¶32      There is, however, a noteworthy parallel between Beiersdorf and the instant case. In Beiersdorf, the defendant would likely have received the sentence credit he sought if only his lawyer had thought to ask the circuit court to convert Beiersdorf’s personal recognizance bonds to cash bail during the time Beiersdorf was in custody on his new unrelated charge. Beiersdorf complained that “‘[o]nly the lack of paperwork revoking bail in the sexual assault case prevents [him from] receiving 44 days jail-time credit in the sexual assault case.’” Id. at 499 n.2. We addressed this topic as follows:

We note that defense attorneys, in countless cases, do ask trial courts to convert personal recognizance bonds to cash bail when their clients have been arrested and do remain in custody on cash bail on subsequent charges. They do so precisely because they want to assure sentence credit on both offenses. That, however, did not occur in this case.

Id. Like Beiersdorf, it appears that Johnson might have made himself eligible for the credit he seeks. Johnson was free with respect to his 2004 case during the time he was in custody in 2005 because he posted bail in the 2004 case. Thus, it appears there may have been steps Johnson could have taken to make his custody “in connection with” his 2004 case.

The dissent in the court of appeals went so far as to raise the possibility counsel “was ineffective by failing to assist Johnson in taking the necessary steps to make his custody ‘in connection with’ his [first] case,” presumably by failing to obtain revocation of his bond. The supreme court gives this problem glancing notice, ¶¶73-75, to the effect that counsel shouldn’t be second-guessed for continuing to keep alive Johnson’s quest for presentence release, something Johnson wanted. Fair enough. But that doesn’t minimize the tension for the harried practitioner representing any given client determined to reoffend. The court suggests that “a defendant is probably entitled to move for revocation of his own presentence release” (but cautions that once set, course-reversal would be difficult), ¶74 n. 20, so revocation of bond the defendant can’t meet anyway is a potential remedy. One more strategic consideration to make.A 3-Justice concurrence questions whether State v. Warrick D. Floyd, 2000 WI 14 (pre-trial confinement on a read-in charge related to sentenced offense, therefore qualifies for sentence credit) remains viable in light of State v. David G. Straszkowski, 2008 WI 65 (read-in no longer deemed an offense admitted by defendant): “This new analysis now leaves open the question of whether the defendant is being sentenced for the same ‘course of conduct’ because under Straszkowski, read-in offenses are not admitted,” ¶90. The concurrence may be reading a bit much into Straszkowski, which also holds, ¶93, “that a defendant’s agreement to read in a charge affects sentencing in the following manner: a circuit court may consider the read-in charge when imposing sentence but the maximum penalty of the charged offense will not be increased; a circuit court may require a defendant to pay restitution on the read-in charges; and a read-in has a preclusive effect in that the State is prohibited from future prosecution of the read-in charge.” But we’ll see.

 

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