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Sentence after probation revocation may run consecutive to other sentences

State v. Ricky Rodriguez, 2021AP2053-Cr, 6/14/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rodriguez was convicted of two misdemeanors and placed on probation in early 2017. a few months later, he committed two felonies and was sentenced to prison. His probation for the misdemeanors was revoked, and he was sentenced to 9 months in jail consecutive to any other sentence. In his pro se appeal, he argued that his sentence after revocation cannot, as a matter of law, run consecutive to the sentence for his felonies based on Drinkwater v. State, 69 Wis. 2d 60, 230 N.W.2d 126 (1975). The court of appeals says that it can.

Drinkwater stated that under the 1973-1974 version of § 973.10(2) “[a] sentence imposed upon the revocation of probation cannot be made consecutive to a sentence previously imposed.” Id., 69 Wis. 2d at 74). The State replied that the law has since changed, so Drinkwater no longer applies.  The court of appeals sided with the State.

¶16 The statute that the circuit court cited in denying the motion for reconsideration, WIS. STAT. § 973.15(2)(a), states in pertinent part that a “court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously.” This permitted the circuit court here to impose the consecutive sentence.

¶17 As noted, Rodriguez relies on Drinkwater. But, as the State now argues, Rodriguez’s Drinkwater-based argument has been rejected by this court based on statutory changes made by the legislature since 1975. See Cole, 233 Wis. 2d 577, ¶¶2, 5, 7-8 (noting statutory revisions post-dating Drinkwater); Thompson, 208 Wis. 2d at 256-57 (same; further noting that “revocation merely triggers the execution or implementation of the sentence”). The State also could have cited, as part of this same line of authority, State v. White, 97 Wis. 2d 517, 519-20, 294 N.W.2d 36 (Ct. App. 1979) (noting statutory revisions which “provide that sentencing on probation revocation may be concurrent with or consecutive to any sentence imposed subsequent to the imposition of the original probation.”). Without tracing the history in detail, these cases explain that the legislature has revised WIS. STAT. §§ 973.10(2) and 973.15(2) in ways that make Drinkwater no longer supportive of Rodriguez’s position.

¶18 I need not elaborate further, because after the State cites this line of authority, Rodriguez fails to explain why the authority cited by the State is not dispositive, which concedes the point. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to argument made in response brief may be taken as concession). Rodriguez may intend to base some of his arguments on language in WIS. STAT. § 973.10(2)(b) (“If the probationer has already been sentenced, order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison”) that he contends conflicts with WIS. STAT. § 973.15(2)’s authorization of imposing “any such sentence … consecutive[ly] to any other sentence imposed … previously.” However, as the above background demonstrates, Rodriguez had not been already sentenced, meaning § 973.10(2)(a) applied, which explicitly incorporates the unambiguous terms of § 973.15(2).

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