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Additional pre-sentence credit granted after revocation of parole isn’t applied to reincarceration time

State v. Andrew M. Obriecht, 2014 WI App 42, petition for review granted 11/14/14, reversed, 2015 WI 66; case activity

When sentence credit for time spent in custody before the defendant was sentenced is not granted until after the defendant has been revoked from parole and reincarcerated, the plain language of § 302.11(7)(am) and (b) requires DOC to apply the credit to the remaining period of parole, not to the defendant’s term of reincarceration.

Obriecht was paroled in March 2011. In September 2011, he violated the conditions of parole, was revoked after a hearing, and reincarcerated. (¶2). A year later he moved the circuit court for 107 more days of sentence credit for time he spent in custody in 1998, 1999, and 2001. The court granted Obriecht’s motion and issued an amended judgment of conviction reflecting the additional credit. (¶3). Citing § 302.11(7)(am), DOC said it would apply the credit to Obriecht’s parole, shortening his maximum discharge date by 107 days, but would not apply it to the period of reincarceration in prison. (¶4). Obriecht objected, and asked the circuit court to intervene, but the circuit court agreed with DOC. (¶¶5-6). So does the court of appeals:

¶13      Under Wis. Stat. § 302.11(7)(b), Obriecht “shall be incarcerated for the entire period of time determined by” DHA. In this case, if the sentence credit were applied to the term of reincarceration ordered by DHA, instead of to the remaining period of parole, Obriecht would not be “incarcerated for the entire period of time determined by” DHA. Such an application of the sentence credit would violate § 302.11(7)(b). We therefore conclude that DOC’s application of Obriecht’s sentence credit to the period of parole, rather than to the term of reincarceration ordered by DHA, is consistent with the plain language of § 302.11(7)(am) and (b). The effect of applying the 107 days of sentence credit to the remaining period of parole is to shorten Obriecht’s overall sentence, while ensuring that he serves the entire term of reincarceration ordered by DHA.

¶14      We acknowledge that the belated application of sentence credit to reduce Obriecht’s overall sentence may not fully cure the failure to properly apply the credit at the time of sentencing. But that problem, if it is present here, commonly occurs when a challenge to a sentence credit decision comes too late to actually affect the duration of time spent in initial incarceration.

This reasoning seems cursory. It puts all its weight on the first sentence of § 302.11(7)(b), which misses the fact that the rest of the paragraph shows the “entire period” of reincarceration  time language to be part of a mandate designed to deny the revoked parolee mandatory release under § 302.11(1) or (1g), not sentence credit under § 973.155. Further, § 302.11(7)(b) assumes there has been an accurate credit determination, for § 302.11(7)(am) explicitly provides both that the remainder of the sentence for which the offender may be reincarcerated is “the entire sentence, less time served in custody prior to parole and that the revocation order “shall provide the parolee with credit in accordance with ss. 304.072 and 973.155.” And § 973.155(3) says that sentence credit “shall be computed as if the convicted offender had served such time in the institution to which he or she has been sentenced.” These provisions are far more relevant to the issue than § 302.11(7)(b), and seem to support Obriecht’s argument.

But beyond referring to § 973.155(3) in its discussion (¶11) of the granting of credit “[i]n the normal course” of things–i.e., at the time  of original sentencing–the court, beguiled by the language in § 302.11(7)(b), doesn’t address the interaction of these provisions. This is puzzling in light of the court’s acknowledgement (¶14) that its interpretation may not fully cure the failure to give Obriecht the credit at the time of sentencing. Of course, adopting Obriecht’s position would cure the problem, and would also be consonant with the cases recognizing that a sentence credit decision that effectively nullifies the sentence credit earned is improper, 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—though unlike the scenarios in those two cases, the result here doesn’t mean the credit is completely lost because it does reduce Obriecht’s time on parole, and therefore the total length of his sentence. All in all, then, the case provides another reason, were one needed, to be careful to get an accurate credit order at the time of sentencing: Getting it later may not do as much good.

{ 1 comment… add one }
  • Robert R. Henak March 27, 2014, 8:41 pm

    Yet another example of a questionable Court of Appeals decision recommended for publication and soon to be controlling precedent throughout the state despite the fact that the losing party was not represented by counsel. If the Court is interested in publishing something in a pro se appeal, it really should appoint counsel through the Appellate Practice Section’s Pro Bono Project so it has the benefit of the adversarial system and litigants aren’t stuck for years with a decision that seemed reasonable to the Court at the time only because there was no lawyer pointing out the defects in their theory.

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