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Court of Appeals addresses a couple of common sentence credit issues

State v. Wyatt William Kontny, 2020 WI App 30; case activity (including briefs)

You’d think all the sentence credit issues would’ve been settled by now, but it’s not so! This case settles two of them.

The first issue: Does a stipulation to sentence credit at the time of sentencing preclude the defendant from later seeking credit to which he is entitled? The circuit court thought so. (¶4). The circuit court was wrong:

¶7     The purpose of Wis. Stat. § 973.155 is to prevent a defendant from serving more time than is required under his or her sentence. State v. Elandis Johnson, 2009 WI 57, ¶31, 318 Wis. 2d 21, 767 N.W.2d 207. The statute therefore provides that a convicted offender “shall 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.” Sec. 973.155(1)(a). ….

¶8     In his postconviction motion, Kontny argued he was entitled to one additional day of sentence credit for the date of his arrest—April 23, 2018. The circuit court denied Kontny’s motion, reasoning that Kontny was barred from seeking additional sentence credit because he had agreed at sentencing that he was entitled to only 161 days of credit. On appeal, the State concedes the court’s reasoning in this regard was erroneous. We agree with that concession.

¶9     An award of sentence credit under Wis. Stat. §973.155 is “mandatory.” State v. Carter, 2010 WI 77, ¶51, 327 Wis. 2d 1, 785 N.W.2d 516. “A sentencing court must give credit accorded by statute because ‘a person [may] not serve more time than that for which he [or she] is sentenced.’” Id. (citation omitted; first alteration in Carter). The plain language of § 973.155(1)(a) mandates that an offender “shall 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.” Nothing in § 973.155 authorizes the parties to agree to an amount of sentence credit that differs from the amount to which the defendant is entitled under the statute. We therefore agree with both Kontny and the State that an agreement between the parties as to the proper amount of sentence credit—even if adopted by the circuit court during the sentencing hearing—does not prevent a defendant from later arguing in a postconviction motion that the amount of sentence credit awarded by the court was erroneous.

The second issue: Does an in-custody defendant get sentence credit for the day on which the sentencing hearing happens? The plain and simple answer is “no”:

¶11      …[W]e agree with the State that Kontny is entitled to a total of only 161 days of sentence credit. As the State correctly observes, Kontny’s argument that he is entitled to 162 days of sentence credit rests on the assumption that he is entitled to one day of credit for October 1, 2018, the date on which he was sentenced. However, under Wis. Stat. § 973.15(1), “all sentences commence at noon on the day of sentence.” The sentence credit statute, in turn, provides that an offender is entitled to sentence credit for all days spent in custody “[w]hile the offender is awaiting imposition of sentence after trial.” Wis. Stat. § 973.155(1)(a)3. (emphasis added).

¶12     Reading these statutes together, we conclude a defendant is not entitled to sentence credit for the date on which he or she is sentenced. The statutory language “awaiting imposition of sentence” does not include the date of sentencing because that is the date a defendant’s sentence begins. As such, the date of sentencing is counted toward the service of the defendant’s sentence. If a defendant also received sentence credit for the date of his or her sentencing, the defendant would receive double credit for that day. That result would be absurd, and we must interpret statutes so as to avoid absurd results…. See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.

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