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Court of appeals rejects claim for duplicate sentence credit

State v. Java I. Orr, 2016AP2009, 7/5/17, District 1, (1-judge opinion, ineligible for publication); case activity (including briefs)

Orr raises and loses 3 issues relating to the sentence credit that he received in this case. He argues that (1) he should have been allowed withdraw his plea because trial counsel gave him incorrect infromation regarding the sentence credit he would receive; (2) the actual amount of sentence credit he received is a new factor warranting modification of his sentence; and (3) the trial court sentenced based on inaccurate sentence credit information.

Plea withdrawal. Orr’s claim for plea withdrawal came down to a credibility contest between him and his trial lawyer. The postconviction court simply found trial counsel more credible, and the court of appeals deferred. Op.¶¶33-35.

New factor sentence modification. Orr was entitled to  352 days of sentence credit in this case. He was facing the possibility of revocation proceedings in other cases.  The trial court made the sentence for this case consecutive to the sentences in the revocation cases.  Orr argued that the eventual finding that he was not entitled to sentence credit in both this case and the revocation cases was a “new factor” warranting modification of his sentence. The court of appeals held that duplicate sentence credit was never on the table per State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988). Op. ¶37.

¶41 This court finds that the trial court knew that Orr could not get dual sentence credit on both the revocation cases and this case when it made Orr’s sentence in this case consecutive. Because Orr had not yet been revoked in the revocation cases, the trial court granted him the sentence credit at the time of sentencing in this case. However, when he was revoked and DOC applied the appropriate sentence credit to the revocation cases, the amount of sentence credit granted in this case had to be reduced and the judgment of conviction was properly amended to reflect the appropriate reduction of the sentence credit to four days. Orr received the benefit of the 352 days sentence credit, just not all in this case. Therefore, we conclude that the amount of sentence credit applied to the revocation cases is not a new factor.

Inaccurate information. The court of appeals rejected Orr’s claim for resentencing because the information the sentencing court relied upon was, in fact, accurate.

¶44 As explained above, the trial court was aware that: (1) Orr was entitled to a sentence credit in the amount of 352 days; (2) Orr had a pending revocation in the revocation cases, but a decision on revocation had not yet been made; (3) if Orr’s sentence in this case was consecutive to the revocation cases he would only be entitled to the sentence credit in one case; and (4) if Orr was revoked in the revocation cases, the DOC would first apply the sentence credit in those cases. Because Orr had not yet been revoked, the trial court granted the sentence credit in this case at the time of sentencing. The trial court did not sentence Orr based on inaccurate information.


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