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SCOW rejects doctrine of sentence “advancement” when consecutive sentence is vacated

State v. Richard H. Harrison, Jr., 2020 WI 35, 4/17/20, reversing an unpublished decision of the court of appeals; case activity (including briefs)

Addressing an unusual issue that is now also effectively moot due to developments in the case since the cross petitions for review were granted, a majority of the supreme court holds that Harrison isn’t entitled to sentence credit or sentence “advancement” toward an earlier sentence for time spent in custody on a consecutive sentence that is later vacated.

The unusual issue and post-PFR procedural developments make for a longish story. Here goes:

Harrison served his initial confinement on two concurrent sentences in a 2007 and a 2008 case and then began serving the initial confinement portion of two sentences from a 2010 case and a 2011 case that were consecutive to the 2007 and 2008 sentences and to each other. About three years into his confinement on the two later sentences, they were vacated. The 2010 case was dismissed, but Harrison ultimately entered a plea in the 2011 case. (¶¶4-11). But before being resentenced in the 2011 case, Harrison asked the circuit court to credit the confinement time in the 2010 and 2011 cases toward his extended supervision on the 2007 and 2008 cases, arguing that time he was confined was not connected to a valid sentence and so he would otherwise have been on ES. The circuit court granted the credit. (¶¶12-13).

The state appealed. The court of appeals endorsed the circuit court’s result, but not its reasoning, as we explained here. It held the confinement time on the vacated sentences couldn’t be “sentence credit” under § 973.155 because Harrison wasn’t “in custody in connection with the course of conduct” underlying the still-valid sentences; instead, he was locked up for the wholly unrelated conduct underlying the vacated sentences. But relying on some non-binding but persuasive authority, the court said Harrison’s still-valid sentences should be treated as if they’d never stopped running, instead of having been interrupted by the confinement time on the vacated sentences. So it ordered the prison time on the vacated sentences to count toward the service of ES, though not as “sentence credit.”

The state and Harrison both petitioned for review, and both petitions were granted. Shortly thereafter, Harrison was resentenced in the 2011 case, so at that point he was once again serving a valid sentence in that case. That means he is entitled to credit on the new sentence for the prison time on the vacated sentences, § 973.04. So he conceded he is no longer entitled to credit for that time on the 2007 and 2008 cases, and he appropriately asked the supreme court to summarily reverse the court of appeals. (¶¶16-17, 41).

The supreme court denied his request because the court of appeals’ “advancement” of sentence reasoning is a novel issue that should be addressed even if it is moot. (¶¶32-33). So it’s on to the merits of that question. The supreme court notes the concept developed in the common law based on the notion that is isn’t fair that custody for a voided consecutive sentence should become “dead” or “lost” time. (¶¶51-61). But it rejects the concept on policy grounds:

¶62     We do not adopt advancement for several reasons. Primarily, we conclude that adopting advancement is a public policy decision better left to the legislature. As explained above, we have previously stated that we are bound by the plain meaning of sentence credit statutes and to some degree applying advancement would conflict with the statutory choices of the legislature….

¶63     Second, and relatedly, we again note that what is “fair” is the subject of much debate. In Allison, the court of appeals concluded that advancement would reward habitual offenders. [State v.] Allison, 99 Wis. 2d [391,] 394[, 299 N.W.2d 284 (Ct. App. 1980)]. Others have been wrongfully imprisoned but only those who were repeat offenders and sentenced to consecutive sentences are able to benefit from advancement. Those wrongfully imprisoned for a single offense have no similar recourse.

¶64     Furthermore, those serving a single sentence are not going to be placed “in the position they occupied before entry of the judgment” merely because a court declares the judgment void. [State v.] Lamar, [2011 WI 50,] 334 Wis. 2d 536, ¶39 n.10[, 799 N.W.2d 758]. These people will have lost months, maybe years, of their lives and nothing the court does will fix that. Other courts seem to agree that it would be “inauspicious social policy” to give those serving a single sentence a “line of credit” against sentences for future crimes. ….

Some additional points, one on the merits, two on the procedural posture.

On the merits, like the court of appeals, the supreme court rejects Harrison’s argument that, absent a valid sentence in the 2011 case, the time he spent in custody for those sentences interrupted his otherwise continuously running 2007 and 2008 sentences, and should be credited toward service of them under § 973.155. (¶¶38-41). This conclusion flows from one of the essential requirements of the statute: that there is a factual connection between the custody and the crime for which sentence is imposed. That connection is lacking here because there is no connection between the confinement time for the vacated sentences and the crimes for which Harrison was sentenced in the 2007 and 2008 cases. (¶¶42-50).

And two points on the procedural posture. First, two concurring justices (Dallett and A.W. Bradley) agree Harrison isn’t entitled to credit in the 2007 and 2008 cases, but assert that given the resentencing in the 2011 case the majority’s opinion on the sentence advancement issue amounts to an advisory opinion because, given the resentencing, Harrison is no longer asking the court to adopt it. (¶¶67-80). Second, after the state objected to Harrison’s motion for summary reversal, the court ordered briefing on whether Harrison was “judicially estopped” from changing his position at this point in the litigation. So there’s a short discussion reaching the blindingly obvious conclusion that he isn’t, and that his concession that he’s not now entitled to credit in the 2007 and 2008 cases was appropriate given the change in the 2011 case that goes to the heart of the issue in this case. (¶¶26-31).

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