On Point

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trial court has the authority to presume the resumption of a sentence suspended due to parole where the parole has not been revoked.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.

State v. Terrill J. Hintz, 2007 WI App 113, (AG’s) PFR granted 9/11/07
For Hintz: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding: Where an extended supervision hold is based at least in part on arrest on a new offense, § 973.115(1)(a) awards credit for time spent in custody under the hold against the sentence ultimately imposed for conviction of that offense.

Note that it does not matter that a signature bond was issued for the new offense:

¶11      Finally, the State argues that Hintz was not in custody in connection with the burglary because he was released on signature bond with respect to charges in that matter during the disputed time period. Thus, the State argues, Hintz was in custody solely for the extended supervision hold, which was based on his original OMVWI conviction. However, just because a judicial officer released Hintz on a signature bond does not mean that Hintz’s agent could not take the alleged behavior into account when placing the hold. Thus, we conclude that our interpretation of Wis. Stat. § 973.155(1) as allowing sentence credit for time in custody that is in part due to the conduct resulting in the new conviction resolves this issue.

The court also reminds that credit accrues up to, not after, reconfinement, ¶7 n. 3:

Hintz concedes that after he was sentenced on July 19, 2004, following his extended supervision revocation, any connection between his custody and the new crime was severed. ” See State v. Beets, 124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985). Hintz therefore seeks sentence credit only until his reconfinement on his OMVWI conviction.

Keep in mind, though, that Beets is probably limited to its factual context, State v. Martin V. Yanick, Jr.,, 2007 WI App 30, ¶22:

¶22      To the extent the State is suggesting that Beets holds that service of a sentence on crime A always “severs” time in custody owing to crime B for purposes of awarding sentence credit on the sentence for crime B, we disagree. Beets addressed a particular type of status—time in custody serving a sentence and awaiting disposition on a separate crime. Beets does not address service of a sentence and concurrent service of custody time pursuant to a disposition, which is the sort of concurrent custody time at issue here.

And compare, State v. Lee Terrence Presley, 2006 WI App 82, ¶13 (further limiting Beets, in the sense that mere fact of revocation isn’t enough to sever connection; instead, reconfinement must be imposed: “an offender who has had his or her extended supervision revoked is entitled to sentence credit on any new charges until the trial court ‘resentences’ him or her from the available remaining term of extended supervision”).

State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding:

 ¶13   Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”), the indigent defendant isentitled to a lawyer with whom he or she can communicate, State v. Lomax, 146 Wis. 2d 356, 359, 362, 432 N.W.2d 89, 90, 92 (1988); anything less would make a mockery of the hallowed right to effective legal representation. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. … Given what the trial court here knew, namely that Jones apparently had profound hearing problems, its inquiry into why Jones was frustrated with his lawyer’s interaction with him was inadequate to make an effective record as to why it denied his lawyer’s motion to withdraw, especially in light of the lawyer’s admission that, apparently, other than first meeting his client at the preliminary examination(!), he only met with Jones once—a meeting that, as noted, Jones told the trial court was not “a good meeting.”¶14   As we have seen, the trial court gave two reasons at the end of the hearing on the motion of Jones’s lawyer to deny the lawyer’s request to be allowed to withdraw: (1) Jones was not entitled to pick his lawyer; and (2) Jones was not being denied his Sixth Amendment right to counsel. In light, however, of the trial court’s awareness of Jones’s apparent substantial hearing problems and Jones’s repeated and non-dilatory pleas to get the lawyer off the case, these reasons are conclusory at best and do not meet the Lomax-recognized duty to make sufficient inquiry. See ibid. The trial court’s explanations for denying Jones’s postconviction motion were little better.

…

¶19   Jones submitted substantial scientific and other evidence with his postconviction motion attesting to the difficulties persons like him have in communicating with the non-hearing-impaired, and, also that those who are not hearing-impaired may overestimate their ability to communicate with those who are. He is entitled to try to prove this at what Lomax recommends is the preferred approach—a retrospective evidentiary hearing. See id., 146 Wis. 2d at 365, 432 N.W.2d at 93. We reverse the trial court’s order denying without an evidentiary hearing Jones’s motion for postconviction relief, and remand this matter to the trial court with instructions to hold that hearing, giving Jones sufficient leeway to prove, by expert testimony if necessary, his contention that he had an irresolvable breakdown in communications with his trial lawyer. If, at the conclusion of that hearing, the trial court determines that was there was a substantial breakdown in communications between Jones and his lawyer, he is to be given a new trial, which is the relief Jones seeks on this appeal.

The court, incidentally, exhorts the SPD to scrutinize attorney performance closely, albeit with an eye toward the limitations imposed by scarce reources, ¶5 n. 1: “We recognize that the limitation of resources makes monitoring of appointed counsel by the State Public Defender impossible. However, as appointing authority, it is also reasonable to expect a meaningful response to and inquiry regarding complaints about the appointed lawyer’s conduct that, if true, could seriously prejudice the client’s right to meaningful representation.” The court also uses a punctuation mark to express apparent shock at counsel’s late entry into the case, ¶13:“(first meeting his client at the preliminary examination(!).”

State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis

Issue/Holding:

¶11   As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury’s presence. The circuit court denied Burton the requested voir dire ^[1] and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton’s intent. Burton was not obliged to restate his objections in the jury’s presence and thereby emphasize the testimony he believed prejudicial. See State v. Bergeron, 162 Wis. 2d 521, 527-29, 470 N.W.2d 322 (1991). ^[2]¶12   As to Burton’s failure to raise a due process claim below, though Burton now states his claim in Constitutional language, his argument here is essentially the same as the one he made in the trial court: that Warmington’s testimony was highly and unfairly prejudicial and that its probative value was very limited. Though Burton identifies the Constitution as the grounds of his appeal, the line of cases on which he relies deals with evidentiary principles. ^[3] The State has addressed the same cases and arguments. As the State acknowledges, the rule of waiver is one of administration, not authority. See State v. Moran, 2005 WI 115, ¶31, 284 Wis. 2d 24, 700 N.W.2d 884. We see no just reason to avoid addressing Burton’s claims.

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 ^[2] The State also argues that Burton “adduced some of the evidence now complained about on appeal.” All of the testimony herein discussed was elicited by the State’s direct questioning, with the exception of Warmington’s testimony that an “excited utterance” is “usually … a very truthful statement.” Though Warmington made this statement during cross-examination, it was not directly responsive to the question asked: “Excited utterance means basically just saying something in the heat of the moment, right?” This question does not constitute a waiver on Burton’s part.

State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn

Issue/Holding:

¶13  … The State’s citation for the first time on appeal to Davis and Ross is not a new argument but citation to additional authority. Citation to additional authority and legal analysis on appeal does not constitute “new argument” or advancement of a new theory on appeal. See City of Oshkosh v. Winkler, 206 Wis. 2d 538, 547, 557 N.W.2d 464 (Ct. App. 1996) (Where we refused to apply waiver when a party gave only a scant argument to the trial court on a particular theory, but provided case authority and detailed analysis for this theory on appeal). The trial court was not blindsided by the State on appeal as Markwardt suggests. Even the short argument given by the State gave the trial court some idea of the State’s position. See id. at 548. If the court did not feel comfortable making a ruling because of the limited depth of the State’s analysis, it could have simply requested further briefing. See id.

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding: ¶44, n. 14:

The State also argues that Cockrell waived his right to object on this ground because he did not move for a mistrial. We agree with Cockrell that the case the State relies on for this argument, State v. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537, 613 N.W.2d 606, does not support the State’s position. In Davidson, the defense counsel’s objections to the prosecutor’s comments in closing argument were sustained and the defense counsel moved on without asking for a mistrial; the court held this was a waiver. 236 Wis. 2d 537, ¶5. The rationale for finding a waiver in this circumstance is that, when the court sustains the objection, without a request for a mistrial “all [the court] can assume is that the defendant was satisfied with the court’s ruling and curative measure, and that he had no further objections.” Neely v. State, 97 Wis. 2d 38, 55, 292 N.W.2d 859 (1980) (cited in Davidson, 236 Wis. 2d 537, ¶86). This rationale does not apply when the court has overruled the objection, as it did here.

State v. Martin V. Yanick, Jr., 2007 WI App 30
Pro se

Issue/Holding:

¶1    … We conclude that, when a defendant has served conditional jail time and his or her probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence.

All the rest is commentary. But here goes anyway. Yanick was given probation with 6-months condition time; while serving that time he received a concurrent prison sentence on an unrelated offense, so that his condition time “overlapped” with a prison sentence; he eventually got revoked on the probation and now seeks—successfully—credit on the revocation sentence for the overlapping condition time. It’s undisputed that you’re entitled to credit against a subsequent revocation sentence for time spent in jail as a condition of probation, State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 10-11, 572 N.W.2d 864 (Ct. App. 1997). The State resists that principle, arguing that once Yanick began serving the prison sentence he stopped serving the condition time, ¶8: conditional jail time isn’t a “sentence,” and it’s therefore not possible to serve condition time in prison. What the State says might well be true, according to the court of appeals, yet the State’s analysis simply doesn’t address whether conditional time may be served concurrent with prison time. (Interestingly, the court doesn’t quite demonstrate that it may be served in prison; instead, the court rejects the State’s analysis as non-persuasive and appears to simply take as given such authority, ¶¶8-14.) The court goes on to reject the State’s separate argument that credit is barred under State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989): in effect, the court says, credit is allocated for concurrent sentences even if they’re unrelated and awarded at different times, ¶¶15-19. Finally, the court rejects the State’s claim that State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985) disallows credit:

¶22   To the extent the State is suggesting that Beets holds that service of a sentence on crime A always “severs” time in custody owing to crime B for purposes of awarding sentence credit on the sentence for crime B, we disagree. Beets addressed a particular type of status—time in custody serving a sentence and awaiting disposition on a separate crime. Beets does not address service of a sentence and concurrent service of custody time pursuant to a disposition, which is the sort of concurrent custody time at issue here.

Pay attention to ¶10, which more or less suggests that in situations such as Yanick’s the trial court consider exercising its § 973.09(1)(a) authority to modify a probation condition for “cause”; that is, had the trial court eliminated the condition time following Yanick’s sentence to prison he wouldn’t have a claim for credit, now would he?