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Kinda a defense win on a complicated sentencing issue

State v. Richard H. Harrison Jr., , 2017AP2440-2441-CR, 3/21/19, District 4, (not recommended for publication); Review Granted 8/14/19, reversed, 2020 WI 35case activity (including briefs)

This post requires some concentration. Harrison was sentenced to 3 years IC (Initial Confinement) and 3 years ES (Extended Supervision) in a 2007 case and a 2008 case. In an unrelated 2010 case he was sentenced to 13 years IC and 7 years ES. And in a 2011 case he received 30 years IC and 10 years ES. The 2010 and 2011 sentences ran consecutive to all other sentences.  Harrison served the IC parts of his 2007 and 2008 cases and started serving his IC in the 2010 case when–lucky him–both his 2010 and his 2011 convictions were vacated. By this point all he had to serve was the ES of his 2007 and 2008 cases.

What to do about the time he had started serving on the now vacated 2010/2011 convictions? The circuit court gave Harrison sentence credit for the IC he served on them to offset his ES on his 2007/2008 cases. The court of appeals reversed on this point of law, holding that §973.155(1)(a) allows sentence credit only for “days spent in custody in connection with the courts of conduct for which sentence was imposed” The 2007/2008 cases did not involve the same “course of conduct” as the 2010/2011 cases. Opinion, ¶¶13-15.

However, the court of appeals also held that as a practical matter the circuit court reached the right result–just for the wrong reason. Instead of awarding sentence credit, the circuit court should have “advanced the start dates” of the extended supervision time in the 2007/2008 cases. Opinion, ¶20 (citing Tucker v. Peyton, 357 F.2d 115 (4th Cir. 1966) and State v. Zastrow, No. 2015AP2181 (Ct. App. 6/27/17)(unpublished). The court of appeals explained:

¶25 Harrison’s sentences in the 2010 and 2011 cases both ceased to exist at the time each was vacated. It follows that Harrison’s periods of extended supervision in the 2007 and 2008 cases began as soon as Harrison completed serving the initial confinement portion of his still valid sentences. We, therefore, conclude that Harrison’s release date to extended supervision in the 2007 and 2008 cases should be calculated using those dates.

¶26 Accordingly, we reverse the circuit court order requiring the DOC to credit the periods of initial confinement already served in the 2010 and 2011 cases to reduce Harrison’s periods of extended supervision in the 2007 and 2008 cases. We remand with the direction that the court order the DOC to advance the commencement of Harrison’s extended supervision periods in the 2007 and 2008 cases, so that these extended supervision periods commence on the dates on which Harrison completed serving the initial confinement portions of his sentences in the 2007 and 2008 cases.

So this decision’s mandate line looks like a defense loss. But it kinda seems like a defense win.

{ 2 comments… add one }
  • Matt March 25, 2019, 11:50 am

    Hopefully this never happens, but if Harrison’s ES is revoked for some reason, the logic of the court seems to indicate he would not get sentence credit for the time he was in custody on those vacated cases. That seems to be an inequitable result.

  • Randy March 27, 2019, 11:58 am

    Watch out what you wish for, as this guy has been there, and already done that.

    Conversion of remaining Initial Confinement to extend an ES term following program completion (CIP / ERP) is a nice reward for good behavior, and is a conversion that is authorized by statute. The flip side, which has occurred here, converting the hard time already served at Jackson, by advancing your ES release date to shorten your time on ES on two prior cases, now possible because of these two consecutive cases being vacated, might somehow kinda sorta seem like a reward too, unless of course you get caught up in the revolving door of ES, and you’re revoked as this guy has been; then you’ve got basically nothing for the hard time you shouldn’t have served.

    Luckily, or not so luckily, Harrison has also plead no contest recently to re-filed charges, of a F felony nature now, instead of the original B, so now those normal rules of sentence credit will apply and he will get all that credit he is rightly due for the hard time he served, toward a soon to be newly ordered term of Initial Confinement additionally as well.

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