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Habeas – Challenge to Release Date – Sentence Credit

State ex rel. Christopher L. Shelton v. Smith, 2010AP719, District 2, 1/26/11 

court of appeals decision (not recommended for publication); case activity; State Resp.

Shelton was sentenced on two pre-TIS counts: an active (indeterminate) prison sentence on one count and a consecutive term of probation on the other. He served out the first sentence, with the prison indisputably holding him 143 days past his release date. He then began serving the probationary term, which was eventually revoked, and he thus began serving the consecutive prison sentence on that count. He seeks credit for the 143 days against this second sentence – the court rejects the claim.

¶9        In State ex rel. Olson v. Litscher, 2000 WI App 61, ¶1, 233 Wis. 2d 685, 608 N.W.2d 425, this court found that the State had no authority to hold an inmate beyond his mandatory release date.  Olson was in prison for sexual assault, and just as in Shelton’s case, when Olson reached his mandatory release date the State claimed they were unable to locate a residence for him.  Id., ¶2.  The State therefore kept Olson in custody.  Id.  This court held that a prisoner who reaches his mandatory release date must be released regardless of whether a residence has been found for him.  Id., ¶5.  As we have stated before, a prisoner has a constitutional liberty interest in his mandatory release date.  See Santiago v. Ware, 205 Wis. 2d 295, 317, 556 N.W.2d 356 (Ct. App. 1996). 

¶10      Shelton is currently on parole for his sexual assault offense.  Shelton makes no claim that his current sentence is constitutionally or statutorily infirm.  Shelton never sought habeas corpus relief when he was unlawfully held for 143 days during his child enticement sentence.  Only now—over ten years later and after his probation was revoked in 2005—does he seek equitable relief in the form of applying credit from the 143 days he spent in custody after his mandatory release date on the child enticement sentence to the remaining parole component of his sexual assault sentence.  Because Shelton failed to challenge the extension of his mandatory release date at the time he was unlawfully detained, he is now without a remedy as his child enticement sentence was discharged.

The court goes on to say that the credit being sought was served after sentencing and was unrelated to the subsequent probation revocation, therefore didn’t satisfy the “in connection with” requirement of the sentence credit statute, § 973.155, ¶13. Nor, the court adds, was he “in custody” on the second count during his detention on the first, ¶14, deeming “somewhat similar,” State v. Martinez, 2007 WI App 225, 305 Wis. 2d 753, 741 N.W.2d 280 (not entitled to credit for time spent in federal prison prior to revocation of state parole).

There is a certain remorseless logic to the holding. Nonetheless, consider that someone’s current supervision (whether probation, parole or ES) can be revoked for a violation occurring during a prior period of supervision (granted, in the same case). DOC v. Schwarz and James Dowell, 2005 WI 34; State ex rel Ronald McElvaney v. Schwarz, 2008 WI App 102. In other words, an inmate might be released on parole, returned to prison on revocation, re-released on parole, only to face revocation for a violation occurring during the first parole period. This state of affairs doesn’t make the court’s statutory construction wrong in Shelton’s situation, but it does make the result seem inequitable: supervision is a unitary whole for some purposes, segmented for others; it just so happens that incarcerative exposure is maximized either way.

Tangent, so long as the discussion involves credit for already-served sentences: State v. Allison, 99 Wis.2d 391, 394, 299 N.W.2d 286, 287 (Ct. App. 1980) (no entitlement to credit on current sentence for time served under prior unrelated, vacated sentence; noting, however, “that when a defendant is sentenced on consecutive sentences for related offenses and the earlier sentence is invalid, the later sentence must be advanced to the date it would have begun but for the intervening invalid sentence”).

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