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Lack of connection between custody and crime considered at sentencing dooms credit request

State v. Camron Rufus Spencer, 2019AP912-CR & 2019AP913-CR, District 1, 1/28/20 (one-judge decision; ineligible for publication); case activity (including state’s brief)

Spencer’s custody leading up to his sentencing was not factually connected to the crimes for which he was sentenced, so he isn’t entitled to sentence credit for that time.

Spencer was in custody for a time on battery and witness intimidation charges. (¶¶3-7). After he bailed out on those charges, he was arrested again, this time for being a felony in possession of a firearm. That case was dismissed after the feds indicted him for the offense, but he remained in custody on a federal hold. (¶¶8-9).

While awaiting resolution of the federal charge, he pled to the battery and intimidation charges. (¶10). The circuit court granted him credit for his time in custody before he bailed out on those charges, but not for the time he sat after his arrest for firearm possession. (¶¶11-18). And that was correct:

¶25     To qualify as time spent “in connection with” the course of conduct giving rise to a sentence, a period of custody must be “factually connected with the course of conduct for which sentence was imposed.” [State v.] Johnson, [2009 WI 57,] 318 Wis. 2d 21, ¶3[, 767 N.W.2d 207]. “[A] mere procedural connection will not suffice.” Id., ¶33. The term “course of conduct,” in turn, refers to the specific offense or acts embodied in the charges for which the defendant was sentenced. See State v. Tuescher, 226 Wis. 2d 465, 471-72, 595 N.W.2d 443 (Ct. App. 1999).

¶26     The course of conduct involved in the battery case was Spencer’s domestic abuse of L.M.B. The course of conduct involved in the intimidation case was Spencer’s intimidation of L.M.B. The 179-day period from June 2 through November 28, 2017, for which Spencer seeks sentencing credit was based on his possession of a firearm as a felon. Spencer’s course of conduct was not factually connected with” the course of conduct for which Spencer was sentenced in either the battery case or the intimidation case. Therefore, we conclude that Spencer failed to meet his burden of establishing that the 179-days were “in connection with the course of conduct” for which the battery or the victim intimidation sentences were imposed. ….

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