Case law bars a sentencing judge from lengthening a defendant’s sentence to offset the amount of his or her presentence confinement credit. The sentencing judge in this case didn’t overstep that bar.
The bar originated in Struzik v. State, 90 Wis. 2d 357, 279 N.W.2d 922 (1979), where the judge, learning the defendant was entitled to 14 days of sentence credit, imposed a sentence of 5 years, 14 days. The supreme court concluded the “peculiar length of the sentence transparently reveals that the trial court added to the appropriate sentence the time already served, so that the sentence after the application of the credit would still constitute the sentence originally determined.” Id. at 367. Doing this violates § 973.155(1)(a)‘s mandate that a defendant be given “credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed.” And, if the defendant is indigent, lengthening his or her sentence also violates equal protection because all presentence confinement as a result of an indigent defendant’s failure to post bail “must be applied toward the diminution of the sentence imposed.” Klimas v. State, 75 Wis. 2d 244, 248, 249 N.W.2d 285 (1977).
To avoid these results, Struzik said a court “should first determine an appropriate sentence, then determine the amount of time spent in preconviction custody, and finally credit that time toward the sentence imposed.” 90 Wis. 2d at 367. And, Wittmann points out, § 973.155(2) says that “[a]fter the imposition of sentence, the court shall make and enter a specific finding of the number of days for which sentence credit is to be granted….” (¶19). But the court of appeals rejects the argument that § 973.155(2) and Struzik create a hard and fast procedural rule requiring sentence first, credit second. (¶25). Instead, based on cases applying Struzik, the court says a defendant must show “a nexus between the sentencing court’s consideration of sentence credit and the sentence subsequently imposed, such that it is clear the defendant was given a longer sentence because of the amount of credit to which he or she was entitled without a valid sentencing purpose.” (¶20).
Wittmann doesn’t show by clear and convincing evidence that either the sentence as a whole or the amount of initial confinement was affected by the amount of sentence credit. The sentencing court did ask the parties about sentence credit before pronouncing sentence, and the parties informed the court they stipulated to 245 days—i.e., about 8 months—and the court then proceeded to impose a bifurcated sentence that included 3 years, 9 months of confinement. (¶¶3-6). But this didn’t violate the Struzik rule. First, at the postconviction hearing, the sentencing judge forswore any subjective intent to offset Wittmann’s sentence credit. (¶¶8, 27). In addition:
¶28 …the term of initial confinement imposed here fell between the amounts recommended by the parties. The defense urged the court to impose a three-year initial confinement term, while the State argued for five years’ initial confinement. The PSI recommended an initial confinement term of between four and five years. The total term of the sentence the circuit court imposed was a “round” number: ten years. The term of initial confinement, too, was expressed in a simple value: three years, nine months. Unlike the sentence in Struzik, the sentence here was not expressed in a number of days that corresponded to the sentence credit, nor did the “monthly” component of Wittmann’s initial confinement directly correspond with the amount of his sentence credit.
¶29 Finally, the circuit court’s “consideration” of the amount of sentence credit amounted to two passing references to determine whether the amount of sentence credit was stipulated. The substance of the court’s analysis was focused on the proper sentencing factors in the context of the court’s articulated sentencing goals. The court stated that its usual practice was to ask about the amount of sentence credit (among other matters) up front so that those issues were not lost in the emotional turmoil surrounding the imposition of a prison sentence. The amount of Wittmann’s sentence credit played no apparent role in the circuit court’s consideration of what an appropriate sentence would be for the offense at issue….
Two procedural points. First, as has now become customary, the state argued Wittmann forfeited his Struzik claim by not raising it at the sentencing hearing itself, while the judge was pronouncing sentence. The court elects to reach the issue despite the “strong forfeiture argument here,” in part because of the constitutional issue involved. (¶¶11-12). It doesn’t cite State v. Counihan, 2020 WI 12, ¶¶4, 52, issued five days earlier, which rejected the state’s forfeiture argument regarding failures to object at sentencing when “previously unknown information is raised by the circuit court at the sentencing hearing….” Counihan‘s reasoning for not applying forfeiture in that situation should apply with equal force to Struzik claims that are first raised in a postconviction motion.
Second, Wittmann argued for a de novo standard of review, similar to cases involve claims that a sentence was based on inaccurate information. The court of appeals disagrees and applies the erroneous exercise of discretion standard because Wittmann is seeking a sentence modification–namely, reduction of his term of confinement to 3 years–based on the allegation the sentencing court erroneously exercised its discretion in crafting the sentence to offset sentence credit. Cf. Struzik, 90 Wis. 2d at 368 (adding 14 days to sentence “a clear abuse of discretion”). Also, because crafting sentence length to negate credit is essentially determining a sentence based on an improper factor, the defendant must prove by clear and convincing evidence that is what the judge did. State v. Salas Gayton, 2016 WI 58, ¶24, 370 Wis. 2d 264, 882 N.W.2d 459. (¶¶15-18).