Sentence
Credit Case Analysis
April
26, 2006
The
court gives several good reasons for its holding, but makes no mention of the
strongest reason — the plain language of sec. 973.155(1)(b): “The categories
in par. (a) [for which a prisoner is entitled to credit] include custody of the
convicted offender which is in whole or in part the result of a probation, extended
supervision or parole hold under s. 302.113 (8m), 302.114 (8m), 304.06 (3), or
973.10 (2) placed upon the person for the same course of conduct as that resulting
in the new conviction.”
In
short, an extended supervision hold remains in effect until the reconfinement
hearing. Therefore, credit must be given until that date — when the hold
ceases, and the defendant becomes a state prisoner again.
The
court in State v. Beets, 124 Wis.2d 372, 369 N.W.2d 382, 386 (1985), relied explicitly
on subsec. (1)(b), noting, “this portion of the statute was in fact given
effect, for during the period of the probation ‘hold’ prior to revocation
and sentence, the credit was given on both the drug sentences and the [new] burglary
sentence.
After
sentencing on the [old] drug charges, there was no probation hold, and that portion
of the statute is, accordingly, inapplicable.”
Counsel
also needs to be aware of the following footnote by the court in the case at bar:
“We note that in the briefs filed in State v. Odom, 2005AP1840-CR, the State
takes a different approach and concedes that Odom is entitled to sentence credit
in an almost identical fact situation. Odom had his extended supervision in an
earlier case revoked after a new charge was filed. In Odom, the State argues that
when an offender is sentenced on the same day to concurrent sentences (as occurred
here), he is entitled to dual credit, citing State v. Howard, 2001 WI App 137,
246 Wis. 2d 475, 630 N.W.2d 244, State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158
(Ct. App. 1989), and Wis JI—Criminal SM 34-A.”
Actually,
however, Odom may not involve an identical fact situation, even though the two
sentencings occurred at the same time.
In
the case at bar, the decision is silent on the following fact: whether Presley
was in custody both on an extended supervision hold on the old case and bail on
the new case.
In
Odom, on the other hand, the trial court released him on a signature bond on the
new case two days after his arrest. He was not actually released from custody,
however, because of the extended supervision hold. The State, in its brief, thus
notes, “Had Odom been sentenced consecutive sentences, or been sentenced
on the two offenses on different occasions, he would have been entitled to two
days’ credit on the [new] burglary charge and 102 days’ credit …
on the revocation.”
As
noted, however, the State in Odom conceded that Odom is entitled to 102 days credit
on both cases, because he was sentenced on the same day.
The
facts in Odom are thus unusual. When a client is on extended supervision and picks
up a new charge, the defense attorney should take efforts to ensure that cash
bail is imposed on the new charge, so that the above-described scenario cannot
occur. Under no circumstances should a signature bond be requested.
The
only time a defense attorney should file a bail motion, when a hold is also in
effect, is if the jail has a policy precluding detainees from performing certain
work in the jail, if their bail exceeds a certain amount. Even then, the attorney
should only ask that cash bail be lowered to X amount, explaining to the court
the reason for the request, that the hold is in effect, and that the defendant
can’t bail out anyway.
Neither
party in Odom requested that the decision be published. It would be beneficial
if it were, however, in order to make clear that the decision in the case at bar
applies, regardless of whether the time the defendant spends in custody is spent
both under bail and an extended supervision hold, or just a hold.
Arguably,
a defendant in Odom’s position should not get credit for both. The whole
basis for sentence credit is the Equal Protection Clause. If poor defendants did
not get credit for time spent in custody before sentencing, they would serve more
time than defendants who have the means to pay bail, Beets, 369 N.W.2d at 385.
If
the court releases a defendant on a signature bond, this consideration is not
present. Thus, it would be helpful, if the court were to issue a published decision
in Odom for those cases in which the defense attorney fails to ensure that a client
on a hold is also held on cash bail.
Regardless
of whether it is published or not, however, defense attorneys should at least
be aware of the result when the decision is ultimately issued. The court of appeals
clearly is aware of the inconsistency in the State’s positions on this issue.
-
David Ziemer
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David
Ziemer can be reached by email.
