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Correct information about sentence credit constitutes a “new factor”

State v. Dennis R. Armstrong, 2014 WI App 59; case activity

The fact that Armstrong was entitled to eight months rather than approximately two years of sentence credit is a “new factor” because the information was unknowingly overlooked at sentencing and the amount of sentence credit was highly relevant to the circuit court’s imposition of the sentence:

¶13      At the sentencing hearing, Armstrong’s trial counsel told the circuit court that Armstrong was entitled to “two years something” of sentence credit. The prosecutor did not object to this statement, but rather stated: “We would have to stipulate to that amount.” The court’s statement, “[s]ure would be helpful if the court knew what the credit time is,” demonstrates that the court was not otherwise aware of the amount of sentence credit to which Armstrong was entitled at the time of the sentencing. The prosecutor’s and defense counsel’s each answering “Yes” to the court’s query, “You have not got it figured out? It is considerable if it is approaching two years[,]” confirms that the parties and the court at that point believed that Armstrong was entitled to approximately two years of sentence credit. These exchanges at the sentencing hearing demonstrate that the fact that Armstrong was entitled to only eight months of sentence credit was “unknowingly overlooked by all of the parties.” Rosado [v. State], 70 Wis. 2d [280,] 288[, 234 N.W.2d 69 (1975)].


¶16      We agree with Armstrong that the amount of sentence credit to which Armstrong was entitled was a factor “highly relevant to the imposition of [the] sentence.” Rosado, 70 Wis. 2d at 288. Throughout the sentencing hearing, the circuit court pointedly and repeatedly drew attention to the amount of sentence credit to which Armstrong would be entitled, and made clear why the topic was important to the court. The court made statements that included the following: “We need to get [the sentence credit] figured out,” and “[H]ow does [sentence credit] calculate in.” The court noted that the sentence credit would be “considerable if it is approaching two years.” And finally, the court explained: “You know, you [Armstrong] have a lot of credit. The time that you are going to be serving in confinement is not going to be long.” The court’s repeated references to sentence credit were consistent with the court’s stated intent that Armstrong “serve some confinement time” that “is not going to be long” in order to give Armstrong a chance to “show that absolutely this is the last time that I [Armstrong] am going to be doing stuff like this.”

Because Armstrong has shown a new factor, the case is remanded for the circuit court to determine whether the new factor justifies modification of the sentence. (¶¶10, 33).

In addition to its grant of relief, the decision is notable for its discussion of Struzik v. State, 90 Wis. 2d 357, 279 N.W.2d 922 (1979).  (¶¶21-31). Struzik was entitled to fourteen days of sentence credit and was sentenced to five years, fourteen days in prison. Struzik, 90 Wis. 2d at 367. The supreme court reversed the sentence, saying “the trial court should first determine an appropriate sentence, then determine the time spent in preconviction custody, and finally credit that time toward the sentence imposed.” Id. The state argues Struzik establishes a rule that a judge can’t consider the amount of sentence credit before deciding the sentence to be imposed; therefore, if Armstrong’s sentence credit was highly relevant to the sentence, then the sentence (and any modification based on correct information about credit) violates Struzik. (¶19).

After considering Struzik in light of the law governing sentence credit and the clarification provided by cases interpreting it, the court concludes it addresses a “clearly defined problem: a court acting with the improper purpose of depriving a defendant of sentence credit by enlarging the sentence.” (¶27). When that clearly defined problem isn’t present, Struzik‘s statement about determining the sentence before addressing credit is not a strict requirement. (¶27). Moreover, other cases, e.g.State v. Gallion, 2004 WI 42, ¶43 n.11, 270 Wis. 2d 535, 678 N.W.2d 197, expressly recognize that the length of pretrial detention is a factor a court may consider when determining the sentence. Thus, the state’s narrow reading of Struzik is incorrect. (¶21).

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