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Defendant not entitled to sentence credit for charges dismissed but not read in

State v. Demario D. Fleming, 2017AP1851-CR, District 1, 7/17/18 (not recommended for publication); case activity (including briefs)

Applying its recent decision in State v. Piggue, 2016 WI App 13, 366 Wis. 2d 605, 875 N.W.2d 663, the court of appeals rejects Fleming’s request for sentence credit for time he spent in custody on charges that were dismissed, but not read in, as part of a plea agreement.

Fleming was in custody awaiting trial on armed robbery charges. He was recorded on jail telephone calls urging M.H., his intimate partner, to contact witnesses and dissuade them from showing up at trial. The dissuasion worked, but it also led to witness intimidation charges. Fleming eventually agreed to plead to two counts of witness intimidation, and the State agreed to dismiss the armed robbery charges outright. Fleming didn’t want the armed robbery charges read in—perhaps to avoid paying restitution, perhaps because the circuit court advised him (inaccurately: see below) that if the charges were dismissed outright they couldn’t be “considered” at sentencing. (¶¶4-14). In any event, at sentencing Fleming took responsibility for the armed robberies as well as the intimidation, so the circuit court expressly considered the allegations in deciding the sentence. (¶¶17-18).

Fleming argues the time he spent in custody on the robbery charges should be credited against the sentence on the intimidation charges. While State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, held that a defendant is entitled to credit for custody only on read-in charges, he says the logic of Floyd should be extended to any dismissed charge that a defendant admits and that the sentencing court considers. Why? Because State v. Straszkowski, 2008 WI 65, 310 Wis. 2d 259, 750 N.W.2d 835, abrogated the rule that a read-in is an admission of guilt, and it was that rule that led Floyd to limit its holding to read-ins. (¶¶25-26).

This is a variation of the argument rejected in Piggue, where the defendant was charged with intimidation of a witness in a sexual assault case that resulted in acquittal; the sexual assault was “considered” at the witness intimidation sentencing, so the defendant asked for credit for the time he was in jail on the sexual assault. The court of appeals rejects the argument here for the same reasons it did so in Piggue.

¶32     …[I]n Piggue this court … held that Straszkowski did not alter the holding in Floyd: “Even though Straszkowski may have clarified that read-ins are not to be construed as admissions, the fact is that read-ins are still distinguishable from acquittals and non-read-in dismissals.” Piggue, 366 Wis. 2d 605, ¶13. “Floyd therefore remains good law.” Id. We specifically rejected Piggue’s challenge, saying, “We therefore decline to expand Wis. Stat. § 973.155(1) beyond the limits set by Floyd.” Id.

¶33     We conclude that Fleming is not entitled to any credit for the time spent in custody on the dismissed armed robberies. They were not read-ins and do not fall within the mandatory credit of Wis. Stat. § 973.155(1) as interpreted by the case law. Read-ins are different from acquittals and other non-read-ins. A defendant who agrees to a read-in agrees that his sentence can be increased based on the read-in. See Floyd, 232 Wis. 2d 767, ¶26; State v. Frey, 2012 WI 99, ¶¶68-73, 343 Wis. 2d 358, 817 N.W.2d 436. In return, the defendant cannot be separately prosecuted for it, or convicted of it, or sentenced to the maximum possible penalties for it. A dismissed charge that is not read in gives the defendant no protection from future conviction and sentence exposure on the conviction.

¶34      And while it is true that the trial court may consider a dismissed charge that is not a read-in at sentencing, that is true for all matters of a defendant’s background and character. The trial court can consider past record, both charged and uncharged offenses, as part of character. No admission is required. Piggue, 366 Wis. 2d 605, ¶13. Here, Fleming explicitly declined the opportunity to have the armed robberies treated as read-ins. As the trial court made very clear, it did not sentence him on the armed robberies. Neither by analogy nor by the holdings of Floyd, Straszkowski, or Piggue is Fleming entitled to any credit here. ….

Fleming also contests the condition of supervision that he have no contact with M.H. She was the conduit for Fleming’s efforts of intimidation, not one of the targets, so Fleming argues she wasn’t a victim and he should be able to have contact with her. The circuit court’s imposition of the condition was a proper exercise of its discretion to set reasonable and appropriate conditions of supervision that “assist[] the convicted individual in conforming his or her conduct to the law,” State v. Rowan, 2012 WI 60, ¶10, 341 Wis. 2d 281, 814 N.W.2d 854:

¶37     …. The trial court clearly explained why it was imposing the condition: because Fleming put M.H. in the position of assisting Fleming in committing the crime of intimidation of a witness, and then when she cooperated with law enforcement, Fleming hounded her out of a job, home, and town. She was a victim of his controlling and criminal behavior as the trial court made clear. As the court also noted at sentencing, Fleming is not barred from contact with his [and M.H.’s] daughter and can make other arrangements to contact her. The court’s reasons were clearly explained and were supported by the record and proper legal principles. Therefore, we affirm the imposition of this condition as a proper exercise of discretion.

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