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Sentence Credit, § 973.155 – Parolee Released to Another Jurisdiction not Entitled to Credit for Time Served There Against Subsequent Revocation of Wisconsin Parole

State v. Esteban Martinez, 2007 WI App 225
For Martinez: George Limbeck

Issue/Holding: A Wisconsin inmate paroled to serve sentence in another jurisdiction is not entitled to credit for that service against subsequently-revoked Wisconsin parole; State v. Rohl, 160 Wis. 2d 325, 466 N.W.2d 208 (Ct. App. 1991), followed and State v. Kevin Brown, 2006 WI App 41, distinguished:

¶16      Rohl subsequently filed a motion for sentence credit. Id. Rohl sought credit for all time spent in custody in California. Id. The circuit court denied Rohl’s request. See Rohl, 160 Wis. 2d at 329. We affirmed the circuit court concluding that under Wis. Stat. § 973.155, Rohl’s credit request could not be granted because it would constitute impermissible double credit against two nonconcurrent sentences. Rohl, 160 Wis. 2d at 327-29. We reasoned that Rohl’s sentence of confinement was conditionally completed when he was paroled. Id. at 332. We found it highly relevant that “[t]he prospect of Rohl serving any further Wisconsin prison sentence at the time of the California sentence was speculative.” Id. We reasoned that the “critical flaw” in Rohl’s logic was that he wanted us to label the California court sentence as one running concurrent with a sentence which he “might have to resume serving in the future.” Id. We expressed our doubt that a trial court has the authority to presume the resumption of a sentence suspended due to parole where the parole has not been revoked. Id. At the time the California court sentenced Rohl, there simply was no other custodial sentence to which the California sentence could be, or could be presumed to be, concurrent. Id.

¶17      Here, as in Rohl, the critical flaw in Martinez’s reasoning is that he wants us to label the federal sentence as one running concurrent with a sentence Martinez mighthave to resume serving in the future. See id. Martinez’s Wisconsin sentence of confinement was conditionally completed when he was paroled by Wisconsin authorities. See id. Martinez wants us to interpret Wis. Stat. § 973.15(5) as entitling him to sentence credit for a sentence which was purely speculative at the time he served his federal sentence. To adopt this interpretation would be absurd. See State v. Williams, 198 Wis. 2d 516, 532, 544 N.W.2d 406 (1996) (“A statute should be construed so as to avoid absurd results.”). Because the application of credit under § 973.15(5) is mandatory (i.e., “shall be credited”), Martinez’s interpretation would dictate that the trial court must presume the resumption of a sentence suspended due to parole where the parole has not been revoked. See Rohl, 160 Wis. 2d. at 332. We rejected this result in Rohl; we reject it here.

This is a pre-TIS, parole situation, but you’d be hard-pressed to prevent its application to TIS and ES – see, e.g., State ex rel. Steven M. Rupinski v. Smith, 2007 WI App 4 (court explicitly likens parole to ES, saying, “(t)he objectives are the same,” ¶21). Note, as well, that the concurrence all but lays out a blueprint for refusing to follow Brown at all. The holding will, then, have implications beyond the immediate facts.And what about the immediate facts? Subsequent to imposition of a Wisconsin sentence, Martinez received a consecutive federal sentence. Wisconsin paroled him to that sentence which he served then was released to ultimately-revoked state parole. He sought § 973.15(5) credit against the Wisconsin sentence for time spent in the federal pen. That section says, “A convicted offender who is made available to another jurisdiction under ch. 976 or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155 for the duration of custody in the other jurisdiction.” Seems pretty straightforward, doesn’t it? Martinez was “made available to” the feds under ch. 976, and he spent time in federal custody. Where, then, is the impediment? The court apparently reads the statute to somehow exclude parole (and, again, there’s no reason to think the same won’t apply to ES) from the phrase “service of [the] Wisconsin sentence.” But that is hardly what the text says, is it? The court’s unstated syllogistic reasoning must be something like: the inmate is entitled to credit against a sentence; an inmate paroled to another jurisdiction is not serving a “sentence”; therefore, an inmate paroled to another jurisdiction isn’t entitled to credit against the Wisconsin sentence. That’s an awfully strained, not to say arbitrary, view of “sentence.”

It’s certainly true that you’re not entitled to “dual credit,” in particular, credit against multiple consecutive terms. Note the way the court finesses this issue, which is to term the sentences “nonconcurrent.” But that is overly formalistic: if the sentences are concurrent in effect, then why does it make any difference whether they are formally concurrent. That said, the court’s stress on this factor, justified or not, offers a point of distinction in any given case. Note, as well, that the federal sentence was indeed formally consecutive to Wisconsin’s—though the court certainly doesn’t hinge its result on that fact, perhaps it is another potential point of distinction.


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