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SCOW will review whether time served on vacated sentence can go to valid one

State v. Richard H. Harrison Jr., 2017AP2440 & 2441-CR, cross-petitions for review granted 8/14/19; case activity

We posted about the unpublished court of appeals decision; the basic scenario is that Mr. Harrison served his initial confinement on a couple of concurrent sentences, then began serving the initial confinement portion of some sentences that had been imposed consecutive to that first set of sentences. But, about three years into those later sentences, they were vacated. So what happens to the three years Harrison was in prison on sentences that no longer exist? Do they count toward satisfying the extended supervision of his still-extant, earlier-imposed sentences?

The circuit court held that they did; it directed the DOC to grant Mr. Harrison sentence credit for those three years. The court of appeals decided this was the mostly-right result for the wrong reason. It held that the time couldn’t be “sentence credit” under Wis. Stat. § 973.155 because Harrison wasn’t “in custody in connection with the course of conduct” underlying the still-valid sentences; he was instead locked up for the wholly-unrelated conduct underlying the vacated sentences. But, the court said, relying on some non-binding but persuasive authority, the thing to do was treat Mr. Harrison’s still-valid sentences as if they’d never stopped running, instead of having been interrupted by the confinement time on the vacated sentences. So that’s what it ordered–it declared that the prison time counts toward the service of ES, though it’s not technically “sentence credit.”

The state, unsatisfied with this result, petitioned for review, arguing that the court of appeals’ solution is contrary to statute (this is a stretch; it’d be more accurate to say the statutes just don’t address this situation). Harrison also petitioned: he’s glad the court gave him less ES to serve, but unhappy that it’s not technically viewed as “sentence credit.” The reason: should he be revoked from ES, the department will have the entire ES term (which, let’s recall, he actually spent most of in prison) as potential reconfinement time under Wis. Stat. § 302.113(9)(am), whereas if that time is awarded as sentence credit, it will have been eaten up and won’t be available to use again.

The supreme court granted both petitions. Stay tuned to see which, if any, resolution commands a majority of votes.

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