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Defense win! Jail time credited to sentence imposed after revocation of deferred-judgment agreement

State v. Amy Joan Zahurones, 2019 WI App 57; case activity (including briefs)

Zahurones was charged with several drug-related counts along with resisting an officer and physical abuse of a child. All the counts arose out of a single encounter with the police. She ultimately pleaded to four counts. On three of those counts she got probation, but on Count 2–the felony child-abuse count–she entered a deferred-judgment agreement with the state. The court put her on a signature bond with respect to that last count, since she wouldn’t otherwise be supervised. Over the next couple of years, Zahurones spent a total of about 9 months in jail on probation holds. Ultimately both the probation and the deferred-judgment agreement were revoked. So, does she get credit for those probation holds against her sentence on Count 2, even though she was technically on a signature bond for that count when she was in jail?

The court of appeals, reversing the circuit court, says “yes.” It notes, citing State v. Johnson, 2009 WI 57, ¶31, 318 Wis. 2d 21, 767 N.W.2d 207 that the “purpose of WIS. STAT. § 973.155 is to prevent a defendant from serving more time than his or her sentence calls for.” A defendant seeking credit must show that he or she was in “custody” during the time at issue and and that said “custody” was “in connection with the course of conduct for which sentence was imposed.” (¶13). Zahurones was obviously in custody, so the question is whether that custody was “in connection with” the count for which she had a deferred judgment agreement; specifically, the court notes, there must be a “factual connection” between the custody and the conduct, not merely a procedural one.

The court finds such a factual connection because the counts for which Zahurones was on probation were part of the same general incident as the count for which she had the deferred judgment.

Namely, on July 3, 2015, police entered Zahurones’ home and found drugs and drug paraphernalia in her possession; Zahurones’ child was removed from the home and tested positive for methamphetamine, to which she was likely exposed due to Zahurones’ drug use and possession; and Zahurones refused to follow the officers’ instructions and resisted arrest. The circuit court acknowledged the factual connection between Zahurones’ custody during the probation holds and the course of conduct underlying Count 2, stating, “There is no doubt that she [was] in custody and was in custody for a course of conduct related to all of the charges.” That single course of conduct was the reason Zahurones was in jail on the probation holds for Counts 1, 3, and 5, and it was also the reason she was sentenced on Count 2.

(¶15). Adding to this “course of conduct” analysis is the fact that the legal resolutions of all the counts were intertwined:

despite the fact that Zahurones was on probation only for Counts 1, 3, and 5—i.e., the drug-related offenses and resisting an officer—she was required as a condition of her probation on those counts to “[c]ooperat[e] with the Langlade County Department of Social Services with regard to [her] children.” That condition was clearly directed at Count 2—the child abuse charge. Zahurones’ success on probation therefore depended, at least in part, on her efforts to address issues related to the child abuse charge, while her successful completion of the DEJ on the child abuse charge depended in part on her behavior during probation. These interconnections between Zahurones’ probation on Counts 1, 3, and 5 and the DEJ on Count 2 further support a conclusion that Zahurones’ custody during the probation holds was factually connected with the course of conduct underlying her sentence on Count 2.


The court rejects the state’s arguments that the existence of a signature bond necessarily rules out sentence credit, relying principally on on State v. Floyd, 2000 WI 14, ¶2, 232 Wis. 2d 767, 606 N.W.2d 155, and State v. Hintz, 2007 WI App 113, 300 Wis. 2d 583, 731 N.W.2d 646. (¶¶19-22). It also distinguishes State v. Beiersdorf, 208 Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997); State v. (Marcus) Johnson, 2007 WI 107, 304 Wis. 2d 318, 735 N.W.2d 505 and (Elandis) Johnson.

Finally, the court of appeals notes that the circuit court was wrong, both legally and factually, to conclude that Zahurones’ reception of the “benefit” of the deferred-judgment agreement somehow disentitled her to credit for her jail time:

In closing, we again reiterate that the purpose of WIS. STAT. § 973.155 is to prevent a defendant from serving more time than his or her sentence calls for. The statute’s provisions are “mandatory,” and a sentencing court must grant the defendant any credit to which he or she is entitled under the statute. Thus, the circuit court erred in this case by denying Zahurones sentence credit based in part on the court’s belief that Zahurones had already received the benefit of the DEJ on Count 2. Because Zahurones was entitled to sentence credit under the provisions of § 973.155, the court was required to grant her that credit, regardless of any equitable considerations that the court believed weighed against granting her sentence credit.

Moreover, we agree with Zahurones that under the circuit court’s analysis, the DEJ did not actually benefit Zahurones but, instead, resulted in her serving more time than was called for by her sentence on Count 2. Had judgment on Count 2 not been deferred and had the court simply sentenced Zahurones to two years of initial confinement on that count at the outset, Zahurones would have gone directly to prison and served only two years of initial confinement on Count 2. However, the combined effect of the DEJ and the circuit court’s subsequent decision to deny sentence credit was to require Zahurones to serve two years of initial confinement on Count 2 in addition to the 272 days that she had already spent in presentence custody. We agree with Zahurones that this outcome—i.e., a defendant being forced to serve more time than her sentence calls for—is “precisely the result that WIS. STAT. § 973.155 is meant to prevent.”

(¶¶29-30 (citations omitted)).


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