2015 WI 66
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1345-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Andrew M. Obriecht,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 353 Wis. 2d 542, 846 N.W. 2d 479)
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 42
OPINION FILED: July 7, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 3, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: William E. Hanrahan
JUSTICES:
CONCURRED: BRADLEY, J., joined by ABRAHAMSON and CROOKS,
JJ. concur (Opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Colleen Marion, assistant state public defender, and oral
argument by Colleen Marion.
For the plaintiff-respondent, the cause was argued by
Katherine D. Lloyd, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
An amicus curiae brief was filed by Jeff Scott Olson,
Madison, on behalf of the Wisconsin Association of Criminal
Defense Lawyers.
2015 WI 66
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1345-CR
(L.C. No. 1998CF271)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. JUL 7, 2015
Andrew M. Obriecht, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This sentence credit
case arises from Andrew M. Obriecht's convictions of seven
misdemeanors and one felony, wherein we review a decision of the
court of appeals1 that affirmed the circuit court's2 denial of
1
State v. Obriecht, 2014 WI App 42, 353 Wis. 2d 542, 846
N.W.2d 479.
2
The Honorable William E. Hanrahan of Dane County
presiding.
No. 2013AP1345-CR
Obriecht's motion for sentence credit.3 The circuit court agreed
that Obriecht was due sentence credit, but the court refused to
apply the credit to his incarceration, and instead, applied the
credit to Obriecht's parole following incarceration.
¶2 As we explain below, Obriecht was not sentenced for
the felony conviction until probation for that conviction was
revoked. At that time, he was eligible to receive sentence
credit against the felony sentence the court imposed. However,
no sentence credit was given. Obriecht was paroled from
incarceration for the felony conviction and subsequently his
parole was revoked. It was at the revocation of parole that
Obriecht first requested the sentence credit that is now before
us.
¶3 We conclude that because Obriecht had completed the
sentences for his misdemeanor convictions when his parole from
incarceration for the felony was revoked and he first requested
sentence credit, the only sentence to which sentence credit
could be applied was the indeterminate sentence for the felony
conviction. We also conclude that not all of the days of
Obriecht's custody prior to his 2001 incarceration at Dodge
3
Obriecht and the State acknowledge that Obriecht has been
released from incarceration. However, we choose to decide the
questions presented because they are capable of repetition, yet
may evade review. G.S., Jr. v. State, 118 Wis. 2d 803, 805, 348
N.W.2d 181 (1984). The question of application of sentence
credit to a revoked probationer may evade review because with
reincarceration orders, the appellate process frequently cannot
be completed such that the decision has a practical effect on
the parties. Id.
2
No. 2013AP1345-CR
Correctional Institution were in connection with the conduct
that led to the felony sentence. We further conclude that
although Obriecht had 105 days of custody for which he had not
yet received sentence credit when his parole was revoked, as we
explain below, only 42 days of custody were in connection with
the course of conduct that led to the felony sentence.
Therefore, 42 of the 105 days of custody prior to Obriecht's
2001 incarceration should have been applied to his term of
reincarceration for the felony conviction. Wis. Stat. § 973.155
(2011-12).4 We also conclude that when a convicted defendant's
parole is revoked, the parolee's indeterminate sentence that was
issued by the circuit court resumes running so that it is
available to accept sentence credit. Wis. Stat. § 304.072(4).
Accordingly, we reverse the court of appeals decision that
affirmed the circuit court's denial of Obriecht's motion for
sentence credit.5
4
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
5
Obriecht, 353 Wis. 2d 542.
3
No. 2013AP1345-CR
I. BACKGROUND
¶4 The criminal violations that underlie this dispute all
occurred before Truth-in-Sentencing (TIS) commenced.6 Obriecht
was charged with and convicted of seven misdemeanors and one
felony. Prior to serving his sentences, he was in custody in
1998, 1999 and 2001. Upon conviction, he was given some
sentence credit for these periods of custody. The parties agree
that Obriecht accumulated more sentence credit than the court
awarded. However, the parties differ on how the court should
have applied the requested sentence credit because Obriecht
first requested sentence credit after his parole from the felony
sentence was revoked.
¶5 The periods of confinement are somewhat hard to
follow, as are their connections with the sentences given. Two
circumstances lead to this difficulty. First, Obriecht was
arrested and convicted of seven misdemeanors and a felony, but
he was sentenced initially only on the misdemeanors and given
probation for the felony. Second, Obriecht did not request the
6
TIS changed Wisconsin sentencing laws, breaking from the
indeterminate form of sentencing and creating a bifurcated
structure for imprisonment: a term of prison confinement
followed by a term of extended supervision. Michael B. Brennan
et al., Fully Implementing Truth-in-Sentencing, Wis. Law., Nov.
2002, at 11. Obriecht committed the count one felony before TIS
went into effect for felonies. State v. Stenklyft, 2005 WI 71,
¶16, 281 Wis. 2d 484, 697 Wis. 2d 769 (stating Wis. Stat.
§ 973.01(1) was a main feature of TIS); § 973.01(1) (stating TIS
for felonies went into effect on December 31, 1999). Obriecht
also committed the misdemeanors in counts two through seven
before TIS went into effect for misdemeanors. Id. (stating TIS
for misdemeanors went into effect on February 1, 2003).
4
No. 2013AP1345-CR
sentence credit that is at issue here until he had completed the
misdemeanor sentences and parole from incarceration for the
felony had been revoked.
¶6 In an effort to clarify, we begin by setting out the
periods of Obriecht's custody that was in connection with both
the misdemeanors and the felony. We then identify custody that
was imposed solely in connection with the misdemeanors. Next,
we identify the sentence credit given and apply it to the 1998,
1999, and 2001 custody7 beginning with the 1998 period of
custody. In that way, the sentences imposed connect with the
credit given and the mathematical calculation of the custody for
which sentence credit was not given.
¶7 On February 2, 1998 Obriecht was arrested and charged
with seven misdemeanors and one felony. He was released on bail
pending trial on October 16, 1998, resulting in custody of 257
days.
¶8 On June 30, 1999, Obriecht was convicted by a jury of
all eight counts, seven misdemeanors and one felony, and he was
taken into custody. On November 19, 1999, Obriecht was
sentenced on the misdemeanor convictions, whereon he received a
combined indeterminate sentence of seven years. On the felony
conviction, the court withheld sentence and placed Obriecht on
12 years probation. The custody from June 30 to November 19
resulted in additional custody of 142 days.
7
The 1998, 1999, and 2001 periods of custody refer to
Obriecht's custody prior to his incarceration on April 21, 2001
at Dodge Correctional Institution.
5
No. 2013AP1345-CR
¶9 Obriecht continued in custody until December 20, 1999,
when his misdemeanor sentences were stayed pending appeal and he
was released on bail. The period of custody from sentencing on
November 19, 1999 to bail on December 20, 1999 resulted in
additional custody of 32 days.
¶10 On March 21, 2001, the stay of Obriecht's misdemeanor
sentences was lifted and he was held in jail. Obriecht entered
Dodge Correctional Institution on April 21, 2001 to begin his
sentence on the misdemeanor convictions, resulting in additional
custody of 31 days. Therefore, Obriecht's total custody prior
to his April 21, 2001 incarceration was 462 days (257 + 142 + 32
+ 31 days).8
¶11 In regard to sentence credit, the circuit court
initially granted Obriecht 326 days of sentence credit when he
was sentenced for the misdemeanor convictions. On March 21,
2001, when the circuit court lifted the stay pending appeal, the
court granted an additional 31 days, for a total of 357 days of
8
Days in
Period of Custody Custody
2/2/1998 to 10/16/1998 257
6/30/1999 to 11/19/1999 142
11/19/1999 to 12/20/1999 32
3/21/01 to 4/21/01 31
TOTAL 462
Days of
Date of Credit Award Credit Awarded
11/19/1999 326
3/21/2001 31
TOTAL 357
6
No. 2013AP1345-CR
sentence credit. However, Obriecht had spent a total of 462
days in custody. Therefore, Obriecht was due an additional 105
days of sentence credit at that time.
¶12 On August 17, 2001, while he was incarcerated at Dodge
Correctional Institution, Obriecht's probation on the felony
conviction was revoked. The circuit court sentenced him to an
indeterminate seven-year sentence "[c]onsecutive to any other
sentence." No additional sentence credit was given.
¶13 On March 22, 2011, Obriecht was released on parole
from the indeterminate seven-year sentence for the felony
conviction.9 Obriecht violated parole, and was returned to
prison on February 1, 2013.
¶14 On February 1, 2013, Obriecht, proceeding pro se,
first requested 107 days of sentence credit. Initially, the
State did not object to Obriecht's request. The circuit court
agreed and "adjudged that 107 days sentence credit are due
pursuant to § 973.155, Wisconsin Statutes."
¶15 However, on March 21, 2013, the Department of
Corrections (DOC) wrote to the circuit court asking the court to
"clarify" Obriecht's amended judgment of conviction. The DOC
said that it read Wis. Stat. § 302.11(7) to mean that sentence
credit awarded to one whose parole has been revoked was not
applied to reincarceration, but rather, sentence credit should
reduce parole time that may remain.
9
When Obriecht was released on parole from the consecutive
felony sentence, he had completed the misdemeanor sentences.
7
No. 2013AP1345-CR
¶16 Obriecht disputed the DOC's interpretation of Wis.
Stat. § 302.11(7), pro se. Obriecht argued that Wis. Stat.
§ 973.155(5) requires sentence credit be applied to reduce
incarceration. Upon reconsideration, the circuit court agreed
with the DOC, and on April 3, 2013, the court rescinded the
application of 107 days of sentence credit to Obriecht's term of
incarceration and applied the credit to any term of subsequent
parole.10
¶17 Obriecht appealed. He argues that the circuit court
should have applied 107 days of sentence credit to his period of
reincarceration because all of the 107 days were incurred in
connection with the crimes for which he was incarcerated prior
to parole.11
¶18 The court of appeals concluded that the plain language
of Wis. Stat. § 302.11(7)(am) and (b) required that Obriecht's
sentence credit be applied to reduce parole rather than
reincarceration ordered by the Department of Hearings and
Appeals (DHA). State v. Obriecht, 2014 WI App 42, ¶13, 353
Wis. 2d 542, 846 N.W.2d 479. The court explained that
§ 302.11(7)(b) provided that a revoked parolee "'shall be
incarcerated for the entire period of time'" ordered by the DHA.
10
The court did not issue a ruling, but rather noted on
Obriecht's March 18, 2013 letter: "DOC interpretation of law in
correspondence of 3/18/13 is correct." The notation is signed
and dated April 3, 2013.
11
Obriecht's counsel did not itemize the 107 day-tally for
sentence credit, and we have not been able to determine how that
number was calculated.
8
No. 2013AP1345-CR
Id. (quoting § 302.11(7)(b)). Doing as Obriecht requested, the
court concluded would violate the express terms of
§ 302.11(7)(b). Id.
¶19 Obriecht sought review, which we granted. Before us,
the State initially acknowledged that Obriecht was due sentence
credit, but contended that sentence credit applied to any
remaining time on parole because it could not be applied to
reduce the length of reincarceration that the DHA ordered when
Obriecht's parole was revoked. At oral argument, the State
shifted its argument and contended that Obriecht's custody was
not sufficiently connected to the course of conduct for which
sentence was imposed to merit sentence credit. We address this
argument, as well as those arguments that were briefed.
II. DISCUSSION
¶20 Obriecht contends that the circuit court erred in
failing to grant sentence credit when he was sentenced for the
felony conviction and he is seeking to correct that error. The
State focuses on a later period in time, i.e., when the DHA
revoked Obriecht's subsequent parole from the felony sentence,
and contends that Wis. Stat. § 302.11(7)(b) requires Obriecht to
serve the full term of reincarceration that he was given by the
DHA. At oral argument, the State also contended that the
sentence credit Obriecht requested is not sufficiently connected
with the course of conduct for which he was sentenced. They
present two very different questions, and as we explain below,
both Obriecht and the State are correct to some extent.
9
No. 2013AP1345-CR
A. Standard of Review
¶21 We review whether the circuit court correctly applied
Obriecht's sentence credit to his parole rather than to his
incarceration under the provisions of Wis. Stat. § 973.155. We
also consider Wis. Stat. § 304.072(4) and Wis. Stat.
§ 302.11(7). Statutory interpretation and application present
questions of law that we review independently while benefitting
from prior decisions of other courts. Richards v. Badger Mut.
Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581.
B. Sentence Credit
1. General principles
¶22 Statutory interpretation begins with the plain meaning
of the statute. State ex rel. Kalal v. Circuit Court for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
Context and structure of the statute are also important to the
meaning of the statute. Id., ¶46.
¶23 Tallying and awarding sentence credit originated as a
matter of equal protection. See Klimas v. State, 75 Wis. 2d
244, 249, 249 N.W.2d 285 (1977) (holding that an indigent person
who could not make bail was denied a liberty interest if not
given sentence credit for all time spent in custody). Sentence
credit is designed to afford fairness so that a person does not
serve more time than that to which he or she is sentenced.
State v. Beets, 124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985).
¶24 When sentence credit is applied at the time of
sentencing, in this case either at the sentencing for the
misdemeanors or at the later sentencing for the felony, the
10
No. 2013AP1345-CR
circuit court should apply sentence credit to the term of
incarceration. See State v. Wolfe, 2001 WI App 66, ¶1, 242
Wis. 2d 426, 625 N.W.2d 655 (credit must be applied to
incarceration term, not consecutive stayed sentence); Wis. Stat.
§ 973.155(3) (computing custody as if it were served time in the
institution to which the defendant has been sentenced).
¶25 In deciding whether to award sentence credit under
Wis. Stat. § 973.155, a court must make two determinations: (1)
whether the defendant was "in custody" for the period under
consideration, and (2) whether the custody was "in connection
with the course of conduct for which sentence was imposed."
State v. Marcus Johnson, 2007 WI 107, ¶32, 304 Wis. 2d 318, 735
N.W.2d 505. "Custody" means a detention status for which a
defendant is subject to an escape charge if he leaves the place
of detention. State v. Magnuson, 2000 WI 19, ¶25, 233 Wis. 2d
40, 606 N.W.2d 536.
2. Obriecht's custody
¶26 Whether Obriecht was "in custody" is not where the
challenge lies in this case; but rather, whether the custody was
"in connection with the course of conduct for which sentence was
imposed" is our focus. In that regard, we begin with Wis. Stat.
§ 973.155(1)(a), which provides in relevant part:
"actual days spent in custody" includes, without
limitation by enumeration, confinement related to an
offense for which the offender is ultimately
sentenced, or for any other sentence arising out of
the same course of conduct, which occurs:
1. While the offender is awaiting trial;
11
No. 2013AP1345-CR
2. While the offender is being tried; and
3. While the offender is awaiting imposition of
sentence after trial.
In order for the sentence to be "in connection with the course
of conduct for which sentence was imposed," there must be a
factual connection between the custody and the sentence. State
v. Elandis Johnson, 2009 WI 57, ¶65, 318 Wis. 2d 21, 767 N.W.2d
207.
¶27 When custody is at least "in part due to the conduct
resulting in [a] new conviction," a court must award sentence
credit under Wis. Stat. § 973.155(1)(b). State v. Hintz, 2007
WI App 113, ¶11, 300 Wis. 2d 583, 731 N.W.2d 646. Here, the
sentence for the felony conviction was issued subsequent to the
sentences for the misdemeanor convictions as a consecutive
sentence.
¶28 Because all of Obriecht's custody was not in
connection with both the misdemeanor and felony sentences, it is
important in our review to identify to which sentences the
custody relates. The first period of custody began on
February 2, 1998 when Obriecht was arrested and charged with
seven misdemeanors and one felony. This period of custody ended
on October 16, 1998, a period of 257 days, when he was released
on bail. These 257 days have a factual connection to the
conduct that led to the sentences issued for both misdemeanors
and felony; therefore, this period of custody was in connection
with the course of conduct for which he subsequently was
12
No. 2013AP1345-CR
sentenced for both misdemeanor and felony convictions. Elandis
Johnson, 318 Wis. 2d 21, ¶66.
¶29 Obriecht was convicted by a jury of all eight counts
on June 30, 1999, and he was taken into custody. On
November 19, 1999, Obriecht was sentenced on the misdemeanor
convictions, but sentence was withheld on the felony conviction
and Obriecht was placed on 12 years probation. This 142-day
period from conviction to sentencing was in connection with the
conduct that led to sentencing for misdemeanors and felony. No
days in custody subsequent to November 19, 1999 were in
connection with the felony sentence because probation is not a
sentence. State v. Edwards, 2013 WI App 51, ¶7, 347 Wis. 2d
526, 830 N.W.2d 109; Wis. Stat. § 973.155(1)(a). However,
Obriecht's custody did continue after sentencing on November 19,
1999, until he was released on bail pending appeal on
December 20, 1999. This additional 32 days of custody was
solely in connection with the misdemeanor sentences.
¶30 On March 21, 2001, the stay of Obriecht's misdemeanor
sentences pending appeal was lifted and he was taken into
custody for transportation to prison to serve the sentences for
his misdemeanor convictions. Pre-incarceration custody ended
when he entered Dodge Correctional Institution on April 21,
2001, adding custody of 31 days, which is in connection with the
conduct that led to sentences for his misdemeanor convictions.
State v. Gilbert, 115 Wis. 2d 371, 380, 340 N.W.2d 511 (1983)
(concluding that the "clear intent of sec. 973.155, Stats., is
to grant credit for each day in custody regardless of the basis
13
No. 2013AP1345-CR
for the confinement as long as it is connected to the offense
for which sentence is imposed.").
¶31 When Obriecht reached Dodge Correctional Institution,
Obriecht had served 462 days in custody in connection with the
conduct that gave rise to the sentences for his misdemeanor
convictions.12 The circuit court had granted Obriecht 326 days
sentence credit when he was sentenced for the misdemeanors and
the court granted an additional 31 days of sentence credit upon
transportation to Dodge Correctional Institution, for a total of
357 days sentence credit. Therefore, 105 days that Obriecht had
been in custody were not credited.
¶32 On August 17, 2001, Obriecht's probation for the
felony conviction was revoked, and he was sentenced to a seven-
year indeterminate sentence, consecutive to the misdemeanor
sentences he was then serving. No additional sentence credit
was given when he was sentenced for the felony conviction.
¶33 Obriecht was released from prison on parole from the
felony sentence March 22, 2011. On February 1, 2013, he was
returned to prison for violating the conditions of his parole.
The State asserts that sentence credit awarded during Obriecht's
most recent and final period of incarceration, following the
revocation of parole, can be applied only to time that may
remain for a subsequent parole. This argument of the State is
grounded in its interpretation of Wis. Stat. § 302.11(7). The
State also asserts that all of the days of custody in 1998,
12
See supra note 7.
14
No. 2013AP1345-CR
1999, and 2001 for which sentence credit was not awarded did not
arise from custody that was in connection with the course of
conduct that resulted in the felony sentence.
¶34 We note that parole revocation does not involve the
imposition of an additional criminal sanction. See State ex
rel. Flowers v. DHSS, 81 Wis. 2d 376, 384-86, 260 N.W.2d 727
(1978) (explaining that parole revocation is civil in nature and
that the sentence a defendant is required to serve on revocation
is the sentence for the crime of which the defendant previously
was convicted). The DHA has limited discretion to return
revoked parolees to prison up to the remainder of their original
sentence and not beyond. Id. at 386 (stating that the element
of punishment upon revocation is tied to the sentence previously
imposed).
¶35 We also consider Wis. Stat. § 304.072(4) to determine
the effect of parole revocation on a defendant's sentence
because the statute addresses that circumstance. Section
304.072(4) provides:
The sentence of a revoked parolee or person on
extended supervision resumes running on the day he or
she is received at a correctional institution subject
to sentence credit for the period of custody in a
jail, correctional institution or any other detention
facility pending revocation according to the terms of
s. 973.155.
The "sentence" to which § 304.072(4) refers is the sentence that
was issued by the circuit court subsequent to conviction. We
come to this conclusion because § 304.072(4) looks back at a
sentence earlier commenced, i.e., the sentence "resumes
15
No. 2013AP1345-CR
running." Therefore, when Obriecht's parole was revoked, the
seven-year indeterminate sentence for Obriecht's felony
conviction caused reincarceration. Accordingly, the DHA's
reincarceration order did not establish reincarceration as a new
"sentence." Id. Rather, it was a continuation of the sentence
meted out by the circuit court judge. Therefore, if Obriecht
had not received all the sentence credit that was available to
apply to the felony sentence when that sentence was imposed, he
could have received it when his parole was revoked.
¶36 Stated otherwise, the computation of sentence credit
is governed by Wis. Stat. § 973.155(3) that provides: "The
credit provided in sub. (1) or (1m) shall be computed as if the
convicted offender had served such time in the institution to
which he or she has been sentenced." The plain language of
§ 973.155(3) demonstrates that Obriecht is entitled to have the
total amount of time he must spend in prison reduced by the
amount of time he has spent in custody outside of prison when
custody is in connection with the conduct for which the sentence
is imposed. Elandis Johnson, 318 Wis. 2d 21, ¶66. In addition,
when sentences are consecutive, sentence credit is not issued to
more than one sentence so long as the first sentence to be
served is sufficient to receive the sentence credit at issue.
State v. Boettcher, 144 Wis. 2d 86, 93-95, 423 N.W.2d 533 (1988)
(citing Doyle v. Elsea, 658 F.2d 512, 515 (1981) as Doyle
interprets 18 U.S.C. § 3568 upon which § 973.155 was based).
¶37 As we explain, the custody first imposed should be
applied to the sentence first imposed, with consecutive
16
No. 2013AP1345-CR
sentences. As our discussion in the paragraphs above show,
Obriecht's first period of custody extended 257 days, with the
next period of custody extending 142 days. Of the 399 days in
custody, the circuit court granted 326 days as sentence credit
against the misdemeanor sentences.
¶38 The next periods of custody occurred between
sentencing and release on bail pending appeal, 32 days, and
between revocation of bail and transportation to Dodge
Correctional Institution, 31 days. These periods of custody
occurred solely in connection with conduct relating to the
misdemeanor sentences because Obriecht was not being held for
the felony conviction, on which the court had withheld sentence
when it placed him on probation.
¶39 When Obriecht was transported to Dodge Correctional
Institution, Obriecht had 73 days of custody in connection with
the course of conduct that resulted in sentences for misdemeanor
convictions and felony conviction. He also had 63 days of pre-
incarceration custody that occurred after sentencing for
misdemeanors and his probation for the felony conviction.
¶40 The circuit court granted 31 days of additional
sentence credit when Obriecht was transported to Dodge
Correctional Institution. Because we apply sentence credit
granted to the earliest period of custody eligible for the
credit, we apply the 31 days of credit to the 73 days of custody
yet remaining that were in connection with both misdemeanor
sentences and subsequently issued felony sentence, leaving 42
days that were in connection with the conduct that led to the
17
No. 2013AP1345-CR
felony sentence. Stated otherwise, we apply granted sentence
credit to the longest outstanding days of custody that were in
connection with the conduct that led to the sentence.
¶41 As the State pointed out at oral argument, and as we
have explained above, not all of the custody was in connection
with the felony. After all sentence credit was awarded, there
remained 42 days that was in connection with the course of
conduct that led to both the misdemeanor and felony sentences
and 63 days that was in connection with the misdemeanor
sentences, a period of 105 days. Therefore, because the felony
sentence was consecutive to the misdemeanor sentences and
because 63 of the 105 days of custody that remained were in
connection with the misdemeanors, only 42 days were in
connection with the felony sentence.
¶42 Obriecht's continuation of the felony sentence upon
parole revocation is the seven-year indeterminate, consecutive
sentence the circuit court imposed on August 17, 2001. See
Flowers, 81 Wis. 2d at 386 (stating "punishment in parole
revocation is attributable to the crime for which the parolee
was originally convicted and sentenced"); Wis. Stat.
§ 304.072(4) (stating sentence of a revoked parolee "resumes
running"). Therefore, we conclude that on February 1, 2013 when
Obriecht's parole was revoked and he was returned to prison, he
should have received 42 days credit for custody that was in
connection with conduct that led to the felony sentence, which
sentence was available to accept such credit. To do otherwise,
would be unfair to Obriecht and cause him to suffer a longer
18
No. 2013AP1345-CR
period of incarceration for the felony conviction than the
circuit court ordered.
¶43 The court of appeals and the State, in part, relied
on Wis. Stat. § 302.11, titled "Mandatory release," to hold that
Obriecht's sentence credit applied to reduce his parole rather
than reincarceration. Obriecht, 353 Wis. 2d 542, ¶12.
Specifically, the court of appeals held that the § 302.11(7)(b)
language that a parolee "shall be incarcerated for the entire
period of time determined by the reviewing authority" would be
violated if the court applied the sentence credit to the
reincarceration period. Id.; § 302.11(7)(b).
¶44 We can see where the court of appeals found a conflict
between Obriecht's request and Wis. Stat. § 302.11(7). However,
we have applied the credit to the felony sentence in fairness to
Obriecht, who should have received this credit on August 17,
2001 when he was sentenced on the felony conviction.
¶45 Furthermore, Wis. Stat. § 302.11(7) plainly applies to
mandatory release, as indicated by its structure and statutory
history.13 Paragraph (7)(b) first states the general rule that
13
Mandatory release. . . . [(7)](am) The reviewing
authority may return a parolee released under sub. (1)
or (1g)(b) or s. 304.02 or 304.06(1) to prison for a
period up to the remainder of the sentence for a
violation of the conditions of parole. The remainder
of the sentence is the entire sentence, less time
served in custody prior to parole. The revocation
order shall provide the parolee with credit in
accordance with ss. 304.072 and 973.155.
(b) A parolee returned to prison for violation of
the conditions of parole shall be incarcerated for the
entire period of time determined by the reviewing
19
No. 2013AP1345-CR
revoked parolees are not subject to early release; the next
sentence provides a specific example that revoked parolees are
not subject to mandatory release. It does not address the
problem caused by custody incurred before sentencing that was
not granted at sentencing.
¶46 Our reading of Wis. Stat. § 302.11(7)(b) is confirmed
by statutory history. See Cnty. of Dane v. LIRC, 2009 WI 9,
¶27, 315 Wis. 2d 293, 759 N.W.2d 571 (explaining that statutory
history is part of a plain meaning analysis). To explain
further, the predecessor to § 302.11(7)(b) provided mandatory
release for revoked parolees.14 The legislature repealed the
preceding statute and replaced it with language prohibiting
authority unless paroled earlier under par. (c). The
parolee is not subject to mandatory release under sub.
(1) or presumptive mandatory release under sub. (1g).
The period of time determined under par. (am) may be
extended in accordance with subs. (1q) and (2).
Wisconsin Stat. § 302.11(7).
14
Any person on parole under this subsection may be
returned to prison as provided in section 57.06(3) or
57.07(2) to serve the remainder of his sentence. He
may earn good time on the balance of such sentence
while so in prison, subject to forfeiture thereof for
misconduct as herein provided. He may again be
released on parole thereafter under either this
section or section 57.06 or 57.07, whichever is
applicable. The remainder of his sentence shall be
deemed to be the amount by which his original sentence
was reduced by good time.
Wisconsin Stat. § 53.11(7)(b) (1951). In 1984, the legislature
replaced earning "good time" with "entitlement to mandatory
release." See 1983 Wis. Act 528, § 9.
20
No. 2013AP1345-CR
mandatory release for revoked parolees in 1984, which explains
the specific example in the statute.15
¶47 Wisconsin Stat. § 302.11(7)(am) also is not helpful in
determining sentence credit under the facts before us. Section
302.11(7)(am) makes express reference to application of sentence
credit. It provides for sentence credit in the context of a
revocation order, citing both Wis. Stat. § 304.072 and Wis.
Stat. § 973.155. Furthermore, the § 302.11(7)(am) reference to
"the entire sentence" does not affect our analysis. It refers
to the reincarceration required in Obriecht's revocation order.
However, it is Obriecht's sentence imposed by the circuit court
that is modified by sentence credit. Additionally, because our
interpretation of § 973.155 resolves the question of Obriecht's
sentence credit, we decline to address the issue of whether the
court of appeals' application of § 302.11(7) violated equal
protection.
III. CONCLUSION
¶48 We conclude that because Obriecht had completed the
sentences for his misdemeanor convictions when his parole from
incarceration for the felony was revoked and he first requested
15
A parolee returned to prison for violation of the
conditions of parole shall be incarcerated for the
entire period of time determined by the department
under par. (a), unless paroled earlier under par. (c).
The parolee is not subject to mandatory release under
sub. (1). The period of time determined under par.
(a) may be extended in accordance with sub. (2).
Wis. Stat. § 53.11(7)(b) (1984); 1983 Wis. Act 528, § 6.
21
No. 2013AP1345-CR
sentence credit, the only sentence to which sentence credit
could be applied was the indeterminate sentence for the felony
conviction. We also conclude that not all of the days of
Obriecht's custody prior to his 2001 incarceration at Dodge
Correctional Institution were in connection with the conduct
that led to the felony sentence. We further conclude that
although Obriecht had 105 days of custody for which he had not
yet received sentence credit when his parole was revoked, as we
have explained, only 42 days of custody were in connection with
the course of conduct that led to the felony sentence.
Therefore, 42 of the 105 days of custody prior to Obriecht's
2001 incarceration should have been applied to his term of
reincarceration for the felony conviction. Wis. Stat.
§ 973.155. We also conclude that when a convicted defendant's
parole is revoked, the parolee's indeterminate sentence that was
issued by the circuit court resumes running so that it is
available to accept sentence credit. Wis. Stat. § 304.072(4).
Accordingly, we reverse the court of appeals decision that
affirmed the circuit court's denial of Obriecht's motion for
sentence credit.
By the Court.—The decision of the court of appeals is
reversed.
22
No. 2013AP1345-CR.awb
¶49 ANN WALSH BRADLEY, J. (concurring). I agree with
the majority that when a defendant's parole is revoked, sentence
credit should be applied to reduce the term of re-incarceration
and not parole.
¶50 We accepted review in this case in order to address
that question so that future litigants would have clarity. The
petitioner asked a discreet question:
Do the sentence credit statute and the constitutional
protections upon which it is based require time spent
in "custody" to be credited against time spent in
prison, as opposed to time spent on supervision?
Answering that question does not require us to compute the
number of days of sentence credit Obriecht should receive.
¶51 Nevertheless, the majority reaches out and endeavors
to count the actual days of sentence credit due Obriecht in this
unique case made complex by its multiple time periods, legal
maneuvers, and convictions involved. Numerous reasons
illustrate the folly of the majority tackling this unbriefed
issue.
¶52 To begin, half of the record is missing or has been
destroyed. Notably, for computation purposes, it is the
important half which covers the time periods at issue in this
case. Instead, we are left to cobble together the events based
on a record with discrepancies between the portions of the
record available and the parties' descriptions of events.
¶53 Next, this case is moot and the computation of credit
due for this defendant is meaningless. Because Obriecht had
completed his sentence by the time this case was heard, a
1
No. 2013AP1345-CR.awb
determination of the exact number of days of credit he should
have received will have no effect on him.
¶54 Finally, by unnecessarily wading into the exact
computation of sentence credit that Obriecht is owed, the
majority risks unintentionally creating precedent that could be
at odds with the significant purposes fulfilled by awarding
sentence credit. Accordingly, I respectfully concur.
I
¶55 The complexity of the facts in this case is reflected
in the background provided by the majority. After Obriecht was
arrested and charged with seven misdemeanors and a felony, he
was in and out of custody for various reasons while awaiting
trial, after sentencing, and again while his convictions were on
appeal. Majority op., ¶¶7-10. During this period he was
awarded sentence credit on two separate occasions. Id., ¶11.
¶56 The parties agree that Obriecht spent more time in
custody than he was awarded. This appeal arose from the circuit
court's decision to apply the outstanding credit to Obriecht’s
period of parole rather than the in-custody period of his
sentence.
¶57 After discussing the sentence credit statute, the
majority announces that it must examine each period of time
Obriecht spent in custody and determine which were related to
his felony conviction, as that is the conviction to which he
sought to apply sentence credit. Id., ¶28. This is followed by
a detailed description of each of those time periods and a
2
No. 2013AP1345-CR.awb
computation of the number of days that Obriecht should receive.
Id., ¶¶28-32, 37-42.
II
¶58 The basis for the majority's computation of Obriecht's
sentence credit is shaky at best. Less than half of the record
has been made available for our review. Out of 272 record
documents, only numbers 216 through 279 were transferred to this
court. Notably, all of the records received by this court post-
date the time periods at issue by several years. Thus, the
details of when Obriecht was in custody have been cobbled
together from various court filings and decisions and the
representations of the parties.
¶59 Even the representations of the parties leave doubt
regarding the exact dates and time periods involved. For
example, although the parties stipulated that Obriecht had spent
an extra 107 days in custody, this court could not reproduce
that calculation. Id., ¶17 n.11. Instead it determines that
the actual number of days was 105. Id., ¶41. Overall, little
detail is contained in the parties' briefs regarding the time
periods of Obriecht's custody as they were not disputing the
calculation of the sentence credit he was owed.
¶60 The murky record should not have been a problem
because the question presented to us did not require us to
compute days of sentence credit owed. The actual number at this
point is moot because the defendant has completed his sentence.
It is further of questionable value given that the crimes
involved all occurred pre-Truth-in-Sentencing.
3
No. 2013AP1345-CR.awb
¶61 Not only is it unnecessary, but computing the exact
number of days of sentence credit owed to Obriecht runs the risk
of undermining the significant purposes behind sentence credit.
As this court has explained, "Wisconsin's sentence credit
statute has its roots in the constitutional principle of equal
protection and was an immediate response to this court's call
for action in Klimas v. State, 75 Wis. 2d 244, 249 N.W.2d 285
(1977)." State v. Floyd, 2000 WI 14, ¶20, 232 Wis. 2d 767, 606
N.W.2d 155.
¶62 In Klimas, the court addressed a defendant's claim for
sentence credit for the time he spent in pre-trial confinement
because he could not afford bail. The court acknowledged that
this situation raised equal protection concerns, explaining that
"[t]he failure to credit pre-trial time or pre-sentence time in
custody as the result of indigency means that persons similarly
situated except for financial means are subject to different
periods of confinement for the same crime." Klimas, 75 Wis. 2d
at 248. It then determined that "[t]he obvious method of
rectifying the inequality is to credit the preconviction time in
partial fulfillment of the sentence imposed upon conviction."
Id. at 249.
¶63 Since Klimas, courts have acknowledged that the
purpose behind awarding sentence credit extends beyond equal
protection, encompassing fairness as well. "[C]onfinement
credit is designed to afford fairness——that a person not serve
more time than that for which he is sentenced." State v. Beets,
124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985); see also State v.
4
No. 2013AP1345-CR.awb
Johnson, 2009 WI 57, ¶31, 318 Wis. 2d 21, 767 N.W.2d 207 ("Wis.
Stat. § 973.155 is designed to prevent a defendant from serving
more time than his sentence or his sentences call for."); State
v. Martel, 2003 WI 70, ¶24, 262 Wis. 2d 483, 664 N.W.2d 69 ("the
remedial purpose of the sentence credit statute was 'to provide
sentence credit in a wide range of situations' in order to
'afford fairness' to defendants").
¶64 The equal protection and fairness concerns underlying
Wis. Stat. § 973.155 suggest that to the extent possible, a
defendant should receive sentence credit for each day spent in
custody. To do otherwise would permit defendants with enough
money to pay bail to serve shorter sentences than those that do
not, and would cause some defendants to spend more time in
custody than the sentence they received.
¶65 Here, the parties stipulated that Obriecht is entitled
to 107 days of sentence credit. Nevertheless, the majority
concludes that Obriecht spent an extra 105 days in custody but
can receive credit for only 42 days. Neither the record nor the
arguments present a clear reason for doing so. This unnecessary
reduction of sentence credit runs counter to the policies
underlying sentence credit which provide that credit should be
awarded for as many days in custody as possible and that a
person serve no more time than that for which he is sentenced.
III
¶66 In contrast to the majority, I would not endeavor to
compute the exact sentence credit that Obriecht is owed. Given
the murky nature of the record and the lack of briefing on the
5
No. 2013AP1345-CR.awb
subject, any attempted computation is a gamble. Because there
is no need to conduct such a computation to answer the question
at issue in this case, I would not risk creating precedent that
could be used to diminish the weighty concerns underlying
sentence credit. Accordingly, I respectfully concur.
¶67 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON and Justice N. PATRICK CROOKS join this concurrence.
6