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DOC erred in recalculating string of consecutive sentences after one was vacated

State v. Steven F. Zastrow, 2015AP2182-CRAC, District 3, 6/27/17 (not recommended for publication); case activity (including briefs)

Zastrow was serving a string of four consecutive prison sentences, the first imposed in June 2006 in Winnebago County, the other three imposed in October 2006 in Outagamie County. In 2008 the Winnebago sentence was vacated and Zastrow was resentenced to imposed and stayed prison time and placed on probation consecutive to the Outagamie sentences. DOC thereafter recalculated the release dates on the remaining three Outagamie sentences, and decided those sentences started running in 2008, when the Winnebago sentence was vacated. (¶¶2-4). Wrong, says the court of appeals. Those sentences began back in October 2006, on the date they were imposed.

¶6     Zastrow’s sentence in Outagamie County case No. 2002CF1013 was ordered to be served consecutive to the Winnebago County sentence. However, when the Winnebago County sentence was vacated, the Winnebago County sentence became void. See State v. Lamar, 2011 WI 50, ¶39, 334 Wis. 2d 536, 799 N.W.2d 758 (“To vacate means ‘to nullify or cancel; make void; invalidate.’” (quoting Black’s Law Dictionary 1435 (9th ed. 2009))). As a result, the vacated Winnebago County sentence “lack[ed] force or effect and place[d] the parties in the position they occupied before entry of the [sentence].’” See id., ¶39 n.10 (citation omitted). In other words, it was “as if there had been no [Winnebago County sentence].” See id. (citation omitted).

¶7     Because the Winnebago County sentence ceased to exist once it was vacated, Zastrow’s prison sentence in Outagamie County case No. 2002CF1013 began on October 18, 2006, the date he was sentenced in that case. See Wis. Stat. § 973.15 (“Except as otherwise provided in this section, all sentences commence at noon on the day of sentence ….”). It follows that Zastrow’s sentence in Outagamie County case No. 2005CF285—the only Outagamie County case he appeals—began on October 18, 2013, the date he completed serving the initial confinement portions of his sentences in [the other two] Outagamie County case[s]. Thus, the DOC is required to use October 18, 2013, as the start date to recalculate Zastrow’s release date to extended supervision based upon this proper understanding of when Zastrow began serving his consecutive sentences in the Outagamie County cases.

¶8     Our conclusion is consistent with the rule enunciated in Tucker v. Peyton, 357 F.2d 115 (4th Cir. 1966). “The rule set forth in Tucker is that when a defendant is sentenced on consecutive sentences for related offenses and the earlier sentence is invalid, the later sentence must be advanced to the date it would have begun but for the intervening invalid sentence.” State v. Allison, 99 Wis. 2d 391, 393, 299 N.W.2d 286 (Ct. App. 1980) (footnote omitted); accord Miller v. Cox, 443 F.2d 1019, 1020-21 (4th Cir. 1971) (recognizing that “where a prisoner serving consecutive sentences on several convictions succeeds in having one of the sentences invalidated after it has been fully or partially served” the Tucker rule requires “an adjustment of the administrative records of the prison authorities so that service on the remaining valid sentences would commence at an earlier date”).

In defending DOC’s decision to start the Outagamie sentences in 2008 the state argues Zastrow was given credit for the time from 2006 to 2008 on the imposed and stayed Winnebago sentence. This is bogus and wrong: Bogus because Zastrow might never serve that imposed and stayed time, and credit should be used on the sentences actually imposed, State v. Wolfe, 2001 WI App 66, 242 Wis.2d 426, 625 N.W.2d 655; and wrong because back in 2006 the Outagamie court gave Zastrow credit toward its consecutive sentences for the time Zastrow was in custody on the Winnebago case. Of course, the Outagamie judge was wrong to do that under State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), but it turns out to have been right in the long run. (¶¶9-11). Let’s call it sentence credit karma.

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