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SCOW to review sentence credit for Wisconsin offenders doing time in other states

State v. Cesar Antonio Lira, 2019AO691-CR, petition for review granted 1/20/21; case activity

Issues presented (from the State’s PFR):

1. Under §973.155, a convicted offender is entitled to sentence credit for “all days spent in custody in connection with the course of conduct for which sentence was imposed.” And §973.15(5) provides that an offender lawfully made available to another jurisdiction is entitled to credit for custody time in that jurisdiction “under the terms of s. 973.155.”

The court of appeals awarded Lira over 11 years of credit for custody in Oklahoma under §973.15(5), despite the fact that the Oklahoma sentence was not “in connection with” the Wisconsin offenses for which he was sentenced. It relied on State v. Brown, 2006 WI App 41, 289 Wis. 2d 823, 711 N.W.2d 708, which holds that courts determining credit under section 973.15(5) may not consider “the terms of s. 973.155,” including whether the custody in the other jurisdiction is “in connection with” the Wisconsin offense.

Should Lira’s award of credit be reversed because, under §973.155, because his Oklahoma custody was not connected to the conduct for which he was sentenced in Wisconsin? Should Brown be overruled because it misinterpreted the interplay between §973.15(5) and §973.155?

2. Under §973.155(1)(a) and [State v. Boettcher, 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988)], credit is available only for custody that is “in connection with” the conduct for which sentence is imposed, and dual credit is not available on nonconcurrent sentences.

Here, the court of appeals awarded credit to Lira under §973.155 for a second period of custody that was not connected to the present sentences, and that duplicated credit that had already been applied in another case. Should this award of credit to Lira be vacated because it is contrary to §973.155(1)(a) and case law interpreting the statute?

On the first issue, the State argues that SCOW has never addressed the interplay between §973.155 and §973.15(5) and that Brown‘s interpretation of §973.15(5) is contrary to the plain language of the statute and should be overruled. A concurring opinion in State v Martinez, 2007 WI App 225, 305 Wis. 2d 753, 741 N.W.2d 280 likewise argued that Brown was wrongly decided. For more on that, see our post here.

On the second issue, the State contends that the court of appeals’ decision is contrary to the plain language of § 973.155(1)(a) and Boettcher.

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