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State v. Andrew M. Obriecht, 2013AP1345-CR, petition for review granted 11/14/14

Review of a published court of appeals decision; case activity

Issue (composed by On Point)

When additional sentence credit is granted after an offender’s parole has been revoked, is the additional credit applied to the offender’s term of reincarceration, or to the remaining period of parole?

Obriecht was revoked from parole and reincarcerated in prison for some portion of the time remaining on parole; how much time isn’t specified, though it wasn’t for the entire period remaining on the sentence, as the parties agree Obriecht will again be subject to parole. (¶¶2-3 and n. 1). After he was revoked Obriecht successfully moved for additional sentence credit for time he’d spent in custody much earlier in the case, well before he was even paroled. Relying primarily on § 302.11(7)(b), which says the offender “shall be incarcerated for the entire period of time determined by the reviewing authority unless paroled earlier..,” the Department of Corrections applied the credit to reduce the parole time he will have to serve after he is re-paroled at the end of his term of reincarceration. Obriecht argued the credit should be used instead to reduce his reincarceration time, but the court of appeals agreed with DOC’s interpretation of § 302.11(7)(b).

On Point’s post on the court of appeals decision criticized the court of appeals for paying insufficient attention the rest of the language in § 302.11(7) and ignoring sentence credit case law recognizing that a sentence credit decision that effectively nullifies the sentence credit earned is improper, State v. (Eliseo) Brown, 2010 WI App 43, ¶8, 324 Wis. 2d 236, 781 N.W.2d 244, citing State v. Wolfe, 2001 WI App 66, 242 Wis. 2d 426, 625 N.W.2d 655. We’ll now see what the supreme court makes of the issue.

Finally, note that while § 302.11(7) covers revocation of parole, the statute dealing with revocation of extended supervision, § 302.113(9), has virtually identical language. Thus, the holding in this case will certainly govern h0w DOC applies additional credit granted to offenders after they are revoked from ES.

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