The judge who sentenced Hawley after revocation of probation stayed the sentence and ordered it to start some 14 months down the road, when Hawley would finished serving the 18 months of conditional jail time ordered in a different case. That stay was illegal, and the remedy is resentencing—not, as Hawley argues, credit for the time he was in custody since the day of his sentencing after revocation.
Hawley was convicted of two counts of misdemeanor theft as a repeater and put on probation. His probation was revoked based in part on new charges in Dane County. When he was sentenced after revocation in February 2017 Hawley was about 3½ months into the 18 months of conditional jail time ordered as part of the probation imposed in the Dane County case. (¶¶3-7).
Because conditional jail time is not a “sentence” for purposes of § 973.15(2)(a), the revocation sentence couldn’t be ordered to be served consecutively to the condition time. State v. Maron, 214 Wis. 2d 384, 395, 571 N.W.2d 454 (Ct. App. 1997). Knowing that, the sentencing judge stayed the sentence after revocation till the date in April 2018 that Hawley would finish his condition time. (¶7).
The court of appeals agrees with Hawley that Maron also prohibits that kind of stay—though the court’s agreement is based mostly on the state’s failure to mount much of a challenge to Hawley’s argument:
¶17 Hawley argues that this court’s holding in Maron controls the result, and the circuit court lacked the authority under Wis. Stat. § 973.15 to impose a jail sentence in this case consecutive to Hawley’s jail time as a condition of probation in Dane County…. In response, the State contends that the circuit court lawfully stayed Hawley’s sentence under the “legal cause” exception. See § 973.15(8)(a)1. However, the State does not respond to Hawley’s argument that Maron controls the result in this case, and the State does not develop an argument to distinguish Maron. …. In light of the State’s truncated argument on this question, I conclude that Maron controls the result under these circumstances, and the circuit court lacked the authority to impose the sentence in this case consecutive to Hawley’s conditional jail time in Dane County.³
³ In a different case involving different circumstances and arguments, the State might (or might not) again take up this issue and prevail by successfully distinguishing Maron. This is not that case.
Having decided the stay of sentence was unauthorized, the court turns to the remedy. Hawley argues that because the stay was unauthorized and void, his sentence began on the date he was sentenced in February 2017 and the time he was in custody since then counts toward that sentence (and effectively wipes it out, as he got a total of 6 months in jail) even though he was also serving condition time on the Dane County case. (¶¶3, 7, 8, 23).
Just as Hawley’s first argument lived by Maron, his second one dies by it:
¶19 In Maron, this court stated that “[a]s a general rule, resentencing is the proper method to correct a sentence which is not in accord with the law.” Maron, 214 Wis. 2d at 395. Maron argued that a remand for resentencing would allow the circuit court “to do what [Wis. Stat. § 973.15(2)] does not authorize—impose a sentence consecutive to the prior probation.” Id. This court rejected Maron’s argument because Maron’s argument assumed that “there were no lawful means available to the court to achieve its expressed goal that Maron serve additional jail time for this offense,” when, in fact, there were “other options the court might have chosen, had it understood the limitation of § 973.15(2).” Id. at 395-96. Maron further held that “[a] sentencing proceeding is not a game, and when a trial court mistakenly imposes a criminal disposition that is not authorized by law, the result should not be a windfall to the defendant.” Id. at 396. Accordingly, Maron concluded that the appropriate method to correct Maron’s sentence was a remand for resentencing. Id. Because Maron controls this case, I conclude that the proper method to correct Hawley’s sentence is a remand for resentencing.
¶20 As was stated in Maron, the circuit court here might have chosen other options at sentencing had it understood the limitation of Wis. Stat. § 973.15(2). Similar to the suggestions in Maron, 214 Wis. 2d at 395-96, the circuit court might have chosen in February 2017 to stay execution of the sentence for sixty days under § 973.15(8)(a)3. and sentence Hawley within the maximum of two years each on both counts of theft by a false representation as a repeater so as to effectuate the total of six months in jail intended by the circuit court. …. Accordingly, the circuit court had lawful means available to achieve its expressed goal that “the punishment … imposed in this case is not bundled with some other time that [Hawley is] serving.” In the manner noted above, or in another manner in the circuit court’s discretion, an intended sentence can be effectuated by the circuit court on remand.
The passage of time that is an inevitable part of the appeal process does not work to Hawley’s advantage. His postconviction motion was heard and denied in March 2018, a month or so before his condition time was to end and he was to begin the 6-month sentence in this case. (¶8). Per CCAP, it looks like he got a short delay of his April report date, and after serving about 6 weeks the sentence was stayed pending appeal. So now, a year later, at resentencing on remand, the court can simply reimpose the 6-month sentence, grant Hawley credit for any time served before the stay pending appeal, and give him a new report date for that consecutive sentence the court always intended to impose.