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State v. Cesar Antonio Lira, 2021 WI 81, 11/18/21, reversing an unpublished court of appeals decision; case activity (including briefs)

Section 973.15(5) provides that if an offender convicted in Wisconsin is “made available” to another jurisdiction, he or she gets credit toward his or her Wisconsin sentence “under the terms of § 973.155” for the duration of his or her custody in the other jurisdiction. The supreme court holds this language unambiguously requires that to get credit, the offender’s custody in the other jurisdiction must meet § 973.155’s requirement that the custody be “in connection with” the conduct for which the Wisconsin sentence was imposed.

After being given various sentences in Wisconsin, Lira both absconded from supervision and escaped from custody and fled from the state. He made it to Oklahoma, where he committed new offenses that resulted in a new conviction and a sentence. After being sentenced in Oklahoma, he was returned to Wisconsin in 2005 to deal with pending cases. While here, he was mistakenly released, so he hightailed it to Texas. He was later arrested and shipped back to Wisconsin. After finally disposing of his Wisconsin cases, he was shipped back to Oklahoma in 2006. He finished his Oklahoma sentence in 2017 and was then sent back to Wisconsin. (¶¶4-12).

Lira convinced the court of appeals that he should get credit toward some of his Wisconsin sentences for almost a decade of time he spent in Oklahoma. The ground for his claim was that he had been “made available” to Oklahoma in 2006 and, therefore, under § 973.15(5), as construed by State v. (Kevin) Brown, 2006 WI App 41, 289 Wis.2d 823, 711 N.W.2d 708, he was entitled to credit regardless of the lack of any factual connection between his Wisconsin sentences and the conduct that got him locked up in Oklahoma. (¶¶17-19).

Brown held that an offender should receive credit for time he served in a federal institution after a Wisconsin sentence was imposed and the offender was taken into custody by federal authorities and sentenced to federal prison. Brown reached this result even though sentencing of the defendant to federal prison arguably meant he was no longer in custody in connection with his Wisconsin sentence because the federal sentencing “severed” the connection between Brown’s custody and his Wisconsin case, a la State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985). Yet Brown held that the factual connection test “is not the correct test” for determining under § 973.15(5) whether a Wisconsin offender who has been convicted and sentenced here, and then “made available” to the authorities of another jurisdiction, is still entitled to credit toward his Wisconsin sentence. Instead, Brown concluded the statute replaced the factual connection test and effectively declared that the Wisconsin sentence continued to run, regardless of § 973.155.

This conclusion was immediately criticized by another court of appeals judge as inconsistent with the plain language of § 973.15(5) and case law that interpreted the credit statute as requiring a connection between the custody and the Wisconsin case. State v. Martinez, 2007 WI 225, ¶¶19-23, 305 Wis. 2d 753, 741 N.W.2d 280 (Nettesheim, J., concurring). The criticism was prescient, for Lira now overrules Brown: “The language of Wis. Stat. § 973.15(5) is unambiguous: credit is due under the provision only if it is warranted under § 973.155, which includes the factual-connection test found in § 973.155(1)(a).” (¶¶35, 43).

That means Lira doesn’t get his credit. Once he was sentenced in Oklahoma, Lira was not entitled to credit toward his sentences in Wisconsin for time in custody while that Oklahoma sentence was running—not even for the time he spent back in Wisconsin to resolve the pending and unrelated new Wisconsin charges—because that sentence was ordered to be consecutive to his Wisconsin sentences, and under State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), he is entitled only to day-for-day credit toward the total consecutive sentences. (¶¶32-35).

As to the time he spent in custody in Texas after fleeing Wisconsin, while that time was procedurally related to his Wisconsin sentences in that Lira’s time in custody in Texas was because of his flight from Wisconsin, none of that was factually related to any of the cases for which the court of appeals granted him credit. (¶¶53-63).

Lira is, to put it mildly, factually messy. To cut through his odyssey between Wisconsin, Oklahoma, and Texas, the basic point of Lira is this: under § 973.15(5), the text of § 973.155, along with the case law interpreting the statute, determine whether offenders who have been sentenced in Wisconsin and then “made available” to another jurisdiction are entitled to credit toward their Wisconsin sentence for their custody outside Wisconsin.

Given the basic rule established by § 973.155 and the relevant case law, someone “made available” to another jurisdiction could see their Wisconsin sentence effectively suspended for some period of time if they are transferred to the other jurisdiction and get sentenced there. That is because sentencing in the other jurisdiction could sever the connection between their custody and the Wisconsin sentence for some period of time. Whether that severance happens, and what it means for the Wisconsin sentence, will depend on the sentence imposed in the other jurisdiction.

For instance, if the other jurisdiction imposes a concurrent sentence, the Wisconsin sentence would continue to run—just as would be the case if the offender serving a sentence imposed in one county in Wisconsin was given a new, concurrent sentence in another Wisconsin county. If the other jurisdiction imposes a consecutive sentence—as the court says happened in Lira’s case—that sentence would, presumably, be served to its release date and the offender would then be returned to Wisconsin to finish the remainder of the Wisconsin sentence. (Unless the other jurisdiction sent the offender back to Wisconsin to finish our sentence, and then put a detainer on the offender to finish its consecutive sentence when Wisconsin is done with him.)

It might also be the case that the offender’s custody in the other jurisdiction before sentencing there should be credited to the Wisconsin sentence based on what, if any, credit the offender is given toward the sentence in the other jurisdiction. For instance, if the offender sits for 6 months in the other jurisdiction before being given a consecutive sentence and the other jurisdiction gives him zero credit for those 6 months (perhaps believing it will be credited to the Wisconsin sentence), the time should be credited to the Wisconsin sentence, as there was no severance of the connection till the date of sentencing and the time was not credited to the consecutive sentence (i.e., the offender was not given improper dual credit).

These are relatively simple examples, but the scenarios could get quite complex if the offender has multiple cases in both jurisdictions or is shunted back and forth between the jurisdictions more than once. If you find yourself representing a client with a travelogue like Lira’s, making an accurate credit calculation will require collecting information about where the person was in custody, the dates of that custody, and under what sentences, and how those sentences related to other existing sentences—assuming they were even taken into account. , or the records or laws of the other jurisdiction make the effect of the other jurisdiction’s sentence unclear

Also, it may be that most of the time a person is “made available” to other jurisdictions under the IAD, which has its own credit provision—Wis. Stat. § 976.05(5)(f), which says that “[d]uring the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence [imposed in the sending state] shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence allows.” Lira pointedly said it was not interpreting that statute, as Lira was not in Oklahoma under the IAD; in fact, he was sent to Wisconsin from Oklahoma under the IAD. (¶¶49-50). Yet § 973.15(5) itself refers to offenders made available “under ch. 976,” so as a practical matter the result is that credit for someone transferred under the IAD will also have to conform to the terms of § 973.155.


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