2019 WI 22
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1337-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Zachary S. Friedlander,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 382 Wis. 2d 271,915 N.W.2d 730
(2018 – unpublished)
OPINION FILED: March 12, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 11, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Jefferson
JUDGE: David Wambach
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. dissents (opinion filed).
A.W. BRADLEY, J. dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Jacob J. Wittwer, assistant attorney general, with whom
on the brief is Brad D. Schimel, attorney general. There was an
oral argument by Jacob J. Wittwer.
For the defendant-appellant, there was a brief filed by
Mark R. Thompson, assistant state public defender, with whom on
the brief is Jeremy A. Newman, assistant state public defender.
There was an oral argument by Mark R. Thompson.
2019 WI 22
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1337-CR
(L.C. No. 2015CF326)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. MAR 12, 2019
Zachary S. Friedlander, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished, per curiam decision of the court of appeals, State
v. Zachary S. Friedlander, No. 2017AP1337-CR, unpublished slip
op. (Wis. Ct. App. Apr. 12, 2018) (per curiam), reversing the
Jefferson County circuit court's order. The circuit court order
denied Zachary S. Friedlander ("Friedlander") sentence credit
for time that he spent at liberty after being mistakenly
released from prison without being transferred, pursuant to a
detainer, to serve remaining conditional jail time.1 The court
1 The Honorable David J. Wambach presided.
No. 2017AP1337-CR
of appeals remanded this case to the circuit court with
directions to amend Friedlander's judgment of conviction to
reflect the sentence credit that Friedlander requested. We
reverse the court of appeals.
¶2 This court is presented with two issues. First, we
must determine the meaning of "in custody" under Wis. Stat.
§ 973.155 (2015–16).2 In doing so, we consider whether the court
of appeals' decisions in State v. Riske, 152 Wis. 2d 260, 448
N.W.2d 260 (Ct. App. 1989), and State v. Dentici, 2002 WI App
77, 251 Wis. 2d 436, 643 N.W.2d 180, are in harmony with this
court's decision in State v. Magnuson, 2000 WI 19, 233
Wis. 2d 40, 606 N.W.2d 536. We conclude that for the purpose of
receiving sentence credit under § 973.155, a defendant is "in
custody" whenever the defendant is subject to an escape charge
under Wis. Stat. § 946.42, or another statute which expressly
provides for an escape charge, as this court held in Magnuson.
In doing so, we overrule the court of appeals' decisions in
Riske and Dentici.
¶3 Second, we must determine whether Friedlander is
entitled to sentence credit for time he spent at liberty after
being mistakenly released from prison without being transferred
to serve his remaining conditional jail time. We conclude that
Friedlander is not entitled to sentence credit because
Friedlander, who was at liberty, could not have been subject to
2
All subsequent references to the Wisconsin Statutes are to
the 2015–16 version unless otherwise indicated.
2
No. 2017AP1337-CR
conviction for escape under Wis. Stat. § 946.42. Thus, we
reverse the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 On April 15, 2016, Friedlander pled no contest to one
count of felony bail jumping according to the terms of a plea
agreement. According to the plea agreement, the parties jointly
recommended a withheld sentence, instead placing him on
probation for three years, with Friedlander serving eight
months' jail time as a condition of his probation, to run
concurrent with Friedlander's then-existing prison sentence.3
Consequently, most of the eight months of conditional time would
be served while he was in prison. However, at the time of
sentencing, a detainer4 was placed on Friedlander so that if
released from prison, he would be transferred to jail to serve
the remainder of his conditional time.
¶5 The same day that Friedlander pled no contest, the
circuit court adopted the parties' joint recommendation and
ordered that the conditional jail time would start immediately
3 At the time, Friedlander was already serving a prison
sentence at the Oshkosh Correctional Institution for a prior
conviction for possession with intent to manufacture or deliver
heroin——a class F felony under Wis. Stat. § 961.41(1)(d)1. See
State v. Friedlander, Jefferson County case number 2014CF212.
4 "Detainer" is not defined by statute, but this court has
defined "detainer" as "a 'notification filed with the
institution in which a prisoner is serving a sentence, advising
that he is wanted to face pending criminal charges in another
jurisdiction.'" State v. Eesley, 225 Wis. 2d 248, 257–58, 591
N.W.2d 846 (1999) (citing United States v. Mauro, 436 U.S. 340,
359 (1978)).
3
No. 2017AP1337-CR
and run concurrently with the prison sentence Friedlander was
already serving for the unrelated offense. The circuit court
specified on the record that once Friedlander's prison sentence
had been completed, he would still be required to serve the
remainder of his conditional jail time. Additionally, the
circuit court noted that because the jail time was a condition
of probation, it was not a sentence. As a result, the circuit
court stated that there was a question as to where the
Department of Corrections ("DOC") would have Friedlander serve
the remainder of his conditional jail time.
¶6 On September 27, 2016, Friedlander finished serving
his prison sentence on the unrelated drug offense but still had
75 days of his conditional time to serve on the offense now
before this court. However, instead of being transported
according to the detainer to serve his remaining conditional
time in jail, he was mistakenly released by the authorities from
the Oshkosh Correctional Institution. Officials at the Oshkosh
Correctional Institution failed to notify the Jefferson County
jail of Friedlander's release and did not arrange to transfer
Friedlander to the Jefferson County jail.
¶7 Friedlander met with his probation agent immediately
after being released. The probation agent did not tell
Friedlander that he needed to report to jail. Friedlander met
with his probation agent again and was not told anything about
reporting to jail. Friedlander's probation agent did not
contact the circuit court to request clarification regarding his
conditional jail time.
4
No. 2017AP1337-CR
¶8 On November 11, 2016, the Jefferson County sheriff's
office learned from the county's child support agency that
Friedlander had been released from prison. That same day the
sheriff's office contacted Friedlander's probation agent.
Friedlander's probation agent then spoke with Friedlander,
telling him to contact Captain Duane Scott ("Captain Scott") in
the sheriff's office. Friedlander did so and reported to
Captain Scott that a social worker at the Oshkosh Correctional
Institution had told him his conditional jail time was completed
prior to his release from prison. Captain Scott then contacted
a DOC staff member who said that Friedlander's probation agent
should have taken him to the Jefferson County jail on
September 27, 2016. On November 23, 2016, Captain Scott wrote
the circuit court summarizing these recent events and asking the
circuit court whether Friedlander should report to serve his
conditional time and, if so, what should be done regarding the
days he was not in jail.
¶9 On December 1, 2016, the circuit court held a hearing
to determine how to proceed regarding Friedlander's unserved
portion of his conditional jail time. The circuit court found
that Friedlander had served 165 days of the eight months, or 240
days, of conditional jail time. The circuit court determined
that Friedlander had 75 days of conditional jail time remaining
that he needed to serve. The circuit court then considered
whether Friedlander was entitled to sentence credit for the 65
days that elapsed between Friedlander's release on September 27,
2016, and the date of the hearing. If granted sentence credit
5
No. 2017AP1337-CR
for all 65 days between September 27, 2016, and December 1,
2016, Friedlander would have only 10 days of conditional jail
time remaining under the terms of his probation.
¶10 Friedlander argued that he should be entitled to
sentence credit for the 65 days he was not in jail following his
release from the Oshkosh Correctional Institution. Citing Riske
and Dentici, Friedlander claimed that he should receive a 65-day
sentence credit because he was at liberty through no fault of
his own, leaving 10 days remaining on Friedlander's conditional
jail term. The State made no argument regarding Friedlander's
claim for a 65-day sentence credit.
¶11 After hearing testimony from a deputy at the Jefferson
County jail and Friedlander, the circuit court concluded that
Friedlander was not entitled to a 65-day sentence credit for the
time he was not in jail following his release from prison on
September 27, 2016. The circuit court distinguished Riske and
Dentici, stating that in those cases the defendants reported to
jail and were turned away due to overcrowding. The circuit
court concluded that Friedlander should have reported to jail
like the defendants in Riske and Dentici, or at least sought
clarification from the circuit court. Since Friedlander did
neither the circuit court concluded that under Riske and Dentici
Friedlander was not entitled to sentence credit for any of the
time he was not in jail following his release from prison. The
circuit court did not reference Magnuson in its decision.
¶12 As a result, the circuit court ordered Friedlander to
begin serving the remainder of his conditional jail time. On
6
No. 2017AP1337-CR
December 9, 2016, Friedlander filed a motion for stay of his
confinement pending appellate review of the circuit court's
sentence credit determination. On December 12, 2016, the
circuit court denied Friedlander's motion to stay. Friedlander
then filed a petition for leave to appeal, which the court of
appeals denied on January 10, 2017.
¶13 On July 6, 2017, Friedlander filed a notice of appeal.
Though he conceded that defendants normally must be "in custody"
to receive sentence credit under Wis. Stat. § 973.155, he argued
that under Riske and Dentici, time spent at liberty satisfies
the "in custody" requirement because Friedlander was released
from custody due to an administrative error and thus through no
fault of his own. The State argued that Friedlander was not "in
custody" under § 973.155 and pursuant to this court's decision
in Magnuson. The State further asserted that Riske and Dentici
did not apply. Alternatively, the State argued that Friedlander
was not, in fact, at liberty through no fault of his own, as
Friedlander knew he had time to serve but did not report to jail
nor seek clarification regarding his conditional jail time.
¶14 On April 12, 2018, the court of appeals issued an
unpublished, per curiam opinion. Friedlander, No. 2017AP1337-
CR. The court of appeals agreed with Friedlander and reversed
the circuit court, remanding the matter with directions to amend
Friedlander's judgment of conviction to reflect an additional 65
days of sentence credit in the event Friedlander's probation was
revoked and his sentence was imposed. Id., ¶1. The court of
appeals relied on Riske and Dentici, not Magnuson, and reasoned
7
No. 2017AP1337-CR
that "Friedlander was at liberty between the date that he was
released from prison and the date he was remanded to jail, not
through any fault of his own but through the fault of government
officials." Id., ¶19. Therefore, the court of appeals
concluded that Friedlander was entitled to 65 days of sentence
credit. Id.
¶15 Addressing the State's arguments, the court of appeals
first rejected the State's attempts to distinguish Riske and
Dentici, holding that it would be unfair to Friedlander to
require him to serve the 65 days since he was at liberty due to
the government's mistake. Id., ¶¶21–24. Second, the court of
appeals asserted that the State selectively quoted Magnuson to
suggest that the escape statute, Wis. Stat. § 946.42(1)(a), is
the exclusive means to determine whether a defendant is in
custody. Id., ¶¶25–26. The court of appeals also distinguished
Magnuson because there was no fault-related issue raised in
Magnuson. Id., ¶27. Thus, the court of appeals relied on its
decisions in Riske and Dentici, resolving that they existed in
harmony with Magnuson, to conclude that Friedlander was entitled
to 65 days of sentence credit. See id., ¶¶26–28.
¶16 On May 14, 2018, the State filed a petition for review
in this court. On July 10, 2018, we granted the petition.
II. STANDARD OF REVIEW
¶17 This case requires the interpretation of the sentence
credit statute, Wis. Stat. § 973.155, to determine the meaning
of "in custody" for sentence credit purposes. "The
interpretation and application of a statute presents questions
8
No. 2017AP1337-CR
of law that this court reviews de novo while benefitting from
the analyses of the court of appeals and circuit court." State
v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346
(citing State v. Ziegler, 2012 WI 73, ¶37, 342 Wis. 2d 256, 816
N.W.2d 238). Therefore, because there are no disputed facts in
this case, we review de novo when a defendant is "in custody"
within the context of a sentence credit determination.
¶18 "[S]tare decisis concerns are paramount where a court
has authoritatively interpreted a statute because the
legislature remains free to alter its construction."
Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶45, 281
Wis. 2d 300, 697 N.W.2d 417 (citing Hilton v. S.C. Pub. Rys.
Comm'n, 502 U.S. 197, 202 (1991)). "When a party asks this
court to overturn a prior interpretation of a statute, it is his
'burden . . . to show not only that [the decision] was mistaken
but also that it was objectively wrong, so that the court has a
compelling reason to overrule it.'" Id.
III. ANALYSIS
A. Statutory Interpretation
¶19 Wisconsin's statutes reflect the legislature's policy
determination with respect to sentence credit determinations.
As a result, we begin our analysis with the language of the
relevant statute, Wis. Stat. § 973.155. See State ex rel. Kalal
v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. "[T]he purpose of statutory
interpretation is to determine what the statute means so that it
may be given its full, proper, and intended effect." Id., ¶44.
9
No. 2017AP1337-CR
If the meaning of the statute is plain, we ordinarily stop the
inquiry and give the language its "common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id., ¶45.
¶20 Context and structure of a statute are important to
the meaning of the statute. Id., ¶46. "Therefore, statutory
language is interpreted in the context in which it is used; not
in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id. Moreover, the
"[s]tatutory language is read where possible to give reasonable
effect to every word, in order to avoid surplusage." Id. "A
statute's purpose or scope may be readily apparent from its
plain language or its relationship to surrounding or closely-
related statutes——that is, from its context or the structure of
the statute as a coherent whole." Id., ¶49.
¶21 "If this process of analysis yields a plain, clear
statutory meaning, then there is no ambiguity, and the statute
is applied according to this ascertainment of its meaning."
Id., ¶46. If statutory language is unambiguous, we do not need
to consult extrinsic sources of interpretation. Id. "Statutory
interpretation involves the ascertainment of meaning, not a
search for ambiguity." Id., ¶47.
¶22 As this court discussed in Magnuson, Wis. Stat.
§ 973.155 governs when a defendant is entitled to receive
sentence credit. Magnuson, 233 Wis. 2d 40, ¶12. Under Wis.
10
No. 2017AP1337-CR
Stat. § 973.155, "[a] convicted offender shall be given credit
toward the service of his or her sentence for all days spent in
custody in connection with the course of conduct for which
sentence was imposed." § 973.155(1)(a). The statute defines
"days spent in custody" as "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." Id.
Additionally, under § 973.155(1)(a), confinement occurs: (1)
"[w]hile the offender is awaiting trial"; (2) "[w]hile the
offender is being tried"; and (3) "[w]hile the offender is
awaiting imposition of sentence after trial."
§ 973.155(1)(a)1.-3. Under § 973.155(1)(b),
[t]he categories in par. (a) . . . include custody of
the convicted offender which is in whole or in part
the result of a probation, extended supervision or
parole . . . placed upon the person for the same
course of conduct as that resulting in the new
conviction.
¶23 Thus the plain meaning of Wis. Stat. § 973.155
reflects the legislative determination that for sentence credit
to be awarded: (1) the defendant must show that the defendant
was "in custody"; and (2) the defendant must show that "the
custody 'was in connection with the course of conduct for which
the sentence was imposed.'" Wis. Stat. § 973.155(1)(a); see
also State v. Johnson, 2007 WI 107, ¶31, 304 Wis. 2d 318, 735
N.W.2d 505 (quoting State v. Gavigan, 122 Wis. 2d 389, 391, 362
N.W.2d 162 (Ct. App. 1984)). Notably, the term "in custody" is
not defined anywhere in the statutes. The parties dispute only
whether Friedlander was actually "in custody" for the purposes
11
No. 2017AP1337-CR
of the sentence credit between September 27, 2016, and
December 1, 2016. They do not debate whether, if Friedlander
was "in custody," it was in connection with the course of
conduct for which any sentence was imposed. We therefore turn
to our prior case law to determine the meaning of "in custody"
for sentence credit purposes. If Friedlander was not "in
custody" he is not statutorily due sentence credit.
B. Riske, Magnuson, and Dentici
¶24 While the parties agree that Wis. Stat. § 973.155
controls, they disagree as to when a defendant is "in custody"
such that the defendant should receive sentence credit. The
State argues that this court's holding in Magnuson should
control, meaning that a defendant is "in custody" for sentence
credit purposes whenever the defendant would be subject to an
escape charge. The State thus urges this court to overrule the
court of appeals' decisions in Riske and Dentici. Friedlander
claims that Riske, Dentici, and Magnuson all coexist
harmoniously such that Riske and Dentici should not be
overruled. Accordingly, Friedlander claims that a defendant is
entitled to sentence credit because the defendant "could have
been charged with escape had they intentionally escaped from
their time spent at liberty from a court's confinement order
through no fault of their own." We agree with the State, and in
the interest of providing clarity, overrule Riske, decided
before, and Dentici, decided after, Magnuson.
12
No. 2017AP1337-CR
1. Riske
¶25 In Riske, the court of appeals concluded that the
defendant was entitled to sentence credit without even
considering the sentence credit statute. There, the defendant
was sentenced on April 6, 1987, to one year in jail after
pleading no contest to sexual intercourse with a minor. Riske,
152 Wis. 2d at 262. The defendant surrendered to the county
jail the same day he was sentenced, but the jailer told the
defendant that the jail was full. Id. Therefore, the jailer
told the defendant to return on May 1, 1987. Id. The defendant
failed to report back to the county jail on May 1, 1987, and
remained at large until April 14, 1988, when the circuit court
issued an execution for the defendant's arrest. Id. While the
defendant remained at large, he lived and worked in the
community, and made no attempt to hide. Id.
¶26 Following his arrest in 1988, the circuit court
concluded that the defendant would have begun serving his
sentence on May 1, 1987, but that the defendant did not begin
serving his sentence on that date of his own doing. Id.
Therefore, the circuit court held that the defendant was not
entitled to sentence credit for the time he was not in jail on
and after May 1, 1987. See id.
¶27 The defendant appealed, claiming that his one-year
sentence had completely run at the time of his 1988 arrest and
that he should therefore be entitled to sentence credit. Id. at
263. The State conceded that the defendant should be given
sentence credit for the time he was out of jail between April 6
13
No. 2017AP1337-CR
and May 1, 1987, as the defendant reported to the jail and was
turned away because the jail was full.5 Id. However, the State
argued that the defendant "escaped" by failing to return to the
county jail on May 1, 1987. Id. at 265. Citing Wis. Stat.
§ 973.15(7) (1987-88), the State asserted that the defendant was
not entitled to sentence credit for any time the defendant was
at large on or after May 1, 1987.6 Id.
¶28 The court of appeals reversed the circuit court in
part and remanded with directions to give the defendant sentence
credit for the time he was at large between April 6 and May 1,
1987. Id. Relying on a decision issued by the United States
Court of Appeals for the Tenth Circuit nearly 60 years prior,
the court of appeals reasoned that "[s]entences are continuous"
in nature, unless they are "interrupted by escape, violation of
parole, or some fault of the prisoner." Id. at 264. The court
of appeals then stated, "'[W]here a prisoner is discharged from
a penal institution, without any contributing fault on his part,
and without violation of conditions of parole, . . . his
sentence continues to run while he is at liberty.'" Id.
(quoting White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930)).
5The State now asserts that its concession in State v.
Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), was made
in error.
6The 2015–16 version of Wis. Stat. § 973.15(7), which is
identical to the 1987–88 version the court of appeals cited in
Riske, states, "If a convicted offender escapes, the time during
which he or she is unlawfully at large after escape shall not be
computed as service of the sentence."
14
No. 2017AP1337-CR
As additional support, the court of appeals noted a decision
issued by this court in 1884, along with an Attorney General
Opinion issued in 1925. Id. at 264–65 (citing In re Crow:
Habeas Corpus, 60 Wis. 349, 370, 19 N.W. 713 (1884); 14 Op.
Att'y Gen. 512 (1925)). The court of appeals then refused to
determine whether the defendant "escaped," instead relying on
what it described as the "broader principle" codified by Wis.
Stat. § 973.15(7): "that a person's sentence for a crime will
be credited for the time he was at liberty through no fault of
the person." Riske, 152 Wis. 2d at 265. At no point did the
court of appeals reference or discuss Wis. Stat. § 973.155.
2. Magnuson
¶29 This court was thereafter faced with a sentence credit
issue in Magnuson. There, the defendant was charged with eight
counts of securities fraud. Magnuson, 233 Wis. 2d 40, ¶2. The
circuit court set bail at $12,000 per count for a total of
$96,000. Id. The defendant was unable to post bail and
remained in jail. Id. As trial preparation ensued, the
defendant moved for bail modification and reduction. Id., ¶3.
The circuit court granted the motion and modified bail to a
$10,000 signature bond, requiring that others co-sign the bond.
Id., ¶4. As part of the bond, the circuit court required the
defendant to reside with one of the co-signers of the bond. Id.
Additionally, the circuit court imposed a nightly curfew on the
defendant, confining the defendant to his chosen co-signer's
residence between 7:00 p.m. and 7:00 a.m. Id., ¶5. The circuit
court subsequently modified the bond to slightly reduce the
15
No. 2017AP1337-CR
daily period of confinement to allow the defendant to
participate in substance abuse counseling and attend church
activities. Id. The defendant was formally supervised by a
bail monitoring program and was forced to wear an electronic
monitoring bracelet. Id., ¶6. Further, the defendant had to
contact bail monitoring authorities each morning, submit to
urine testing, and have weekly face-to-face contact with
authorities. Id., ¶7.
¶30 The defendant was released on bond on June 12, 1996,
and later pled no contest to three counts of securities fraud.
Id., ¶8. The defendant remained under his chosen co-signer's
care until December 11, 1996, when his co-signer reported to
authorities that he disapproved of the defendant's conduct. Id.
The defendant was returned to jail the following day. Id.
¶31 The circuit court sentenced the defendant to eight
years of imprisonment followed by seven years of probation and
granted 229 days of sentence credit for time the defendant spent
in jail. Id., ¶9. The defendant then filed a postconviction
motion seeking sentence credit for the 183 days he stayed with
his bond co-signer as a condition of his bond. Id. The circuit
court denied the defendant's motion, concluding that his
detention at his co-signer's home with electronic monitoring as
a condition of bond was not "custody" for sentence credit
purposes. Id.
¶32 The defendant appealed the denial of sentence credit.
Id., ¶10. The court of appeals reversed the circuit court,
holding that the defendant was entitled to sentence credit for
16
No. 2017AP1337-CR
the time he was under home detention with electronic monitoring.
Id., ¶10. In reaching its holding, the court of appeals applied
a test set forth in State v. Collett, 207 Wis. 2d 319, 558
N.W.2d 642 (Ct. App. 1996), where the court of appeals adopted a
case-by-case analysis for determining whether a defendant was in
custody for sentence credit purposes. Magnuson, 233 Wis. 2d 40,
¶10. Under the Collett test, the court of appeals concluded
that the bond conditions were restrictive enough such that they
were the "functional equivalent of confinement." Id.
Therefore, the court of appeals concluded that the defendant was
entitled to sentence credit for the time he was required to stay
at his co-signer's residence. See id.
¶33 Citing the need for judicial economy and consistency,
this court reversed the court of appeals, establishing a
"bright-line" rule and abandoning the Collett test. See id.,
¶¶10, 22. Unlike the court of appeals in Riske, this court
began with Wis. Stat. § 973.155, noting that the plain language
of the statute did not expressly define custody. Magnuson, 233
Wis. 2d 40, ¶13. However, we noted that "numerous cases have
interpreted the sentence credit statute and concluded that the
plain meaning of custody under the statute corresponds to the
definition of custody contained in the escape statute, Wis.
Stat. § 946.42." Id. Therefore, we held "that for sentence
credit purposes an offender's status constitutes custody
whenever the offender is subject to an escape charge for leaving
17
No. 2017AP1337-CR
that status," referencing § 946.42(1)(a).7 Id., ¶¶25–26.
However, this court did not restrict the inquiry to the
7
The 2015–16 version of Wis. Stat. § 946.42, which is
substantially similar to the version this court considered in
State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536,
states that "custody" includes without limitation all of the
following:
a. Actual custody of an institution, including a
juvenile correctional facility, as defined in
s. 938.02(10p), a secured residential care center for
children and youth, as defined in s. 938.02(15g), a
juvenile detention facility, as defined in
s. 938.02(10r), a Type 2 residential care center for
children and youth, as defined in s. 938.02(19r), a
facility used for the detention of persons detained
under s. 980.04(1), a facility specified in
s. 980.065, or a juvenile portion of a county jail.
b. Actual custody of a peace officer or
institution guard.
bm. Actual custody or authorized physical
control of a correctional officer.
c. Actual custody or authorized physical control
of a probationer, parolee, or person on extended
supervision by the department of corrections.
e. Constructive custody of persons placed on
supervised release under ch. 980.
f. Constructive custody of prisoners and
juveniles subject to an order under s. 938.183,
938.34(4d), (4h), or (4m), or 938.357(4) or (5)(e)
temporarily outside the institution whether for the
purpose of work, school, medical care, a leave granted
under s. 303.068, a temporary leave or furlough
granted to a juvenile, or otherwise.
g. Custody of the sheriff of the county to which
the prisoner was transferred after conviction.
(continued)
18
No. 2017AP1337-CR
definition of "custody" contained in § 946.42(1)(a), emphasizing
the need to read statutes in pari materia and referring to three
statutes in which the legislature "classified certain situations
as restrictive and custodial by attaching escape charges for an
unauthorized departure from those situations."8 Id.
¶34 Applying its new bright-line rule in Magnuson, this
court held that the defendant was not entitled to sentence
credit for the time he was on electronically-monitored home
detention as a condition of his bond release. Id., ¶32.
Specifically, we concluded that the release conditions of the
defendant's bond did not subject the defendant to an escape
charge under any pertinent statute. Id. This court further
concluded that the defendant was not part of a program that
included statutorily-proscribed escape charges for certain
violations. Id., ¶¶33–36. Additionally, this court stated that
simply having bond conditions similar to requirements under a
confinement or treatment program did not render the defendant a
participant within any such program for sentence credit
h. Custody of a person subject to a confinement
order under s. 973.09(4).
§ 946.42(1)(a)1.
8 Specifically, this court referenced Wis. Stat. §§ 301.046
("Community residential confinement."), 301.048 ("Intensive
sanctions program."), and 302.425 ("Home detention programs.").
Magnuson, 233 Wis. 2d 40, ¶¶28–30. All three statutes expressly
provide that unauthorized flight from or failure to comply with
the programs constitutes an escape. See id.
19
No. 2017AP1337-CR
purposes, expressing its aversion for "a rule for determining
custody as amorphous as the Collett test." Id., ¶35.
¶35 This court then considered whether the defendant was
"in custody" under the escape statute, Wis. Stat. § 946.42.
Magnuson, 233 Wis. 2d 40, ¶¶39–46. In analyzing § 946.42(1)(a),
this court first concluded that the defendant was not in actual
custody under § 946.42(1)(a), as he was not in the custody of an
institution, secured correctional facility, secure detention
facility, a peace officer, or an institutional guard. Id., ¶40.
Next, this court concluded that the defendant was not under
constructive custody within the meaning of § 946.42(1)(a). Id.,
¶41. This court noted that constructive custody included
"temporary leave for the purpose of work, school, medical care,
or otherwise," and concluded that the defendant's bond
conditions did not equate to "a temporary release for any of the
specified purposes." Id.
¶36 Therefore, since the defendant would have been subject
to a bail-jumping charge only for violating the conditions of
his bond, this court concluded that he was not in danger of
being charged with escape and thus was not eligible to receive
sentence credit for the time he spent under home detention.
Id., ¶46. Notably, this court did not address Riske nor did it
espouse any lack-of-fault requirement like the court of appeals
in Riske. This court, however, did not specifically overrule
Riske.
20
No. 2017AP1337-CR
3. Dentici
¶37 Two years after this court's decision in Magnuson, the
court of appeals was again faced with a sentence credit issue in
Dentici. There, on February 3, 1997, the defendant pled guilty
to operating a vehicle without the owner's consent and was
placed on probation. Dentici, 251 Wis. 2d 436, ¶2. As a
condition of probation, the circuit court ordered the defendant
to serve 60 days in jail. Id. When the defendant reported to
the jail the same day he was sentenced, he was informed that the
jail was overcrowded and that he should return on February 28,
1997. Id. The defendant returned on February 28, 1997, and was
released on May 13, 1997. Id. On February 5, 1998, the
defendant's probation was revoked, and the defendant was
sentenced to two years of imprisonment. Id., ¶3. The defendant
filed a series of motions with the circuit court in part seeking
sentence credit for the 25 days he was not in jail between
February 3 and February 28, 1997, because of overcrowding. Id.
The circuit court denied the defendant's motion for the 25 days
of sentence credit, and the defendant appealed. Id.
¶38 The court of appeals reversed the circuit court,
concluding that the defendant was entitled to sentence credit
for the 25 days elapsing between February 3 and February 28,
1997. Id., ¶13. Specifically, the court of appeals concluded
that: (1) the definition of "custody" is not limited to the
definition provided in Wis. Stat. § 946.42(1)(a) (1999-2000);
(2) under Riske and Wis. Stat. § 973.15(7), a defendant is in
custody while at liberty through no fault of his or her own due
21
No. 2017AP1337-CR
to overcrowding; and (3) the defendant would have been subject
to an escape charge for violating any of the conditions of his
constructive custody. Dentici, 251 Wis. 2d 436, ¶13. In
reaching its holding, the court of appeals compared the
defendant's situation to that of the defendant in State v.
Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996).9
Dentici, 251 Wis. 2d 436, ¶11. The court of appeals concluded
that like Sevelin, Dentici "was granted leave for a temporary
period of time, [25] days, and was required to return on a
specified date." Id. Additionally, the court of appeals
considered the defendant's "leave" from jail to be similar to
leave granted under Wis. Stat. § 303.068 (1999-2000), concluding
that the defendant was in constructive custody, as he was
temporarily outside of jail for a purpose that would be covered
by the "or otherwise" language of § 946.42(1)(a)1.f. Dentici,
251 Wis. 2d 436, ¶12. Therefore, the court of appeals reasoned
that the defendant would have been subject to an escape charge
for not returning to the jail on February 28, 1997. Id.
9
In Sevelin, which was decided before Magnuson, the circuit
court granted the defendant a "furlough" to attend an inpatient
treatment facility. State v. Sevelin, 204 Wis. 2d 127, 130, 554
N.W.2d 521 (Ct. App. 1996). Sevelin signed "an authorization so
that the [circuit] court could obtain information from the
facility about his progress and whether he had left the
[treatment facility]. The [circuit] court warned Sevelin that
if he left the [treatment facility] for any reason, he would
have to return to jail immediately." Id. Unlike Freidlander,
Sevelin sought credit for this time in treatment. Id. at 133.
22
No. 2017AP1337-CR
¶39 Apparently recognizing a need to square its holding
with Magnuson, the court of appeals in Dentici attempted to
harmonize Riske and Magnuson, claiming that "the Riske
definition of custody coexists with the Magnuson definition."
Id., ¶13. In the ensuing discussion, the court of appeals cited
Magnuson for only this court's statement that Wis. Stat.
§ 946.42(1)(a) is not the exclusive definition of "in custody"
for sentence credit purposes, and that the statutes should be
read in pari materia. Dentici, 251 Wis. 2d 436, ¶13. The court
of appeals then relied on Riske, stating that under Wis. Stat.
§ 973.15(7), "custody" included the time that defendants are at
liberty through no fault of their own. Id. The court of
appeals thus concluded that the defendant would have been
subject to an escape charge for violating any of the conditions
of his constructive custody. Id.
¶40 Judge Ralph Adam Fine authored a persuasive dissent to
the majority's opinion in Dentici. He emphasized that "Magnuson
established a bright-line rule to determine when a person is in
'custody' for sentence-credit purposes: a person is in
'custody' if he or she is 'subject to an escape charge for
leaving that status.'" Id., ¶15 (Fine, J. dissenting) (citing
Magnuson, 233 Wis. 2d 40, ¶31). Judge Fine further stated, "The
Majority does not tell us under what provision of law, or under
what circumstances, Dentici could have been guilty of "escape"
before the date he had to report to the [jail], and I am aware
of none . . . ." Id. (Fine, J. dissenting). As Judge Fine
aptly concluded, the defendant in Dentici "was free——'escape
23
No. 2017AP1337-CR
from freedom' is not yet a crime." Id. (Fine, J. dissenting).
Additionally, Judge Fine noted that the defendant was not
"sentenced" to incarceration as he was ordered to serve jail
time as a condition of probation, not as a sentence. Id., ¶16
(Fine, J. dissenting) (citing Prue v. State, 63 Wis. 2d 109,
114, 216 N.W.2d 43 (1974) (stating that "probation is not a
sentence")). Judge Fine concluded that the court of appeals was
"bound by Magnuson," not Riske. Id. (Fine, J. dissenting).
¶41 As Judge Fine correctly discussed in his dissent, the
court of appeals' holding in Dentici is fundamentally
problematic. The court of appeals modified the bright-line rule
established in Magnuson, effectively bootstrapping the Riske
standard to the rule we set forth in Magnuson. This court did
not state in Magnuson that a defendant who is at liberty through
no fault of his or her own is "in custody" and thus entitled to
sentence credit. Indeed, that was not part of the analysis.
Rather, we held that a defendant who is subject to an escape
charge for leaving his or her status is "in custody" for
sentence credit purposes. Certainly, our rule in Magnuson would
not be as "bright-line" as we indicated if we silently
incorporated the court of appeals' test in Riske as a latent
part of the analysis, leaving courts to engage in a guessing
game regarding the proper standard.
¶42 Therefore, today we clarify and overrule Riske and
Dentici in favor of our bright-line rule set forth in Magnuson.
We disavow the Riske and Dentici adoption of a common-law rule
to award sentence credit especially given the legislature's
24
No. 2017AP1337-CR
enactment of a comprehensive statutory method to address
sentence credit. When determining whether a defendant is "in
custody" for the purposes of sentence credit under Wis. Stat.
§ 973.155, we look to whether the defendant is subject to an
escape charge for leaving the defendant's status. In
determining whether an escape charge could lie, we generally
turn to the escape statute, Wis. Stat. § 946.42. However,
whether a defendant is subject to an escape charge for leaving
his status may also be informed by other statutes which
expressly provide for escape charges for violation of the
statute, such as Wis. Stat. §§ 301.046 ("Community residential
confinement."), 301.048 ("Intensive sanctions program."), and
302.425 ("Home detention programs."). However, such statutes
are relevant only for consideration for sentence credit purposes
where a defendant is actually a participant in the programs
governed by those statutes.10 Whether a defendant is at liberty
10
For example, Wis. Stat. § 301.046 creates a "[c]ommunity
residential confinement" program, which provides that under the
program, the DOC "shall confine prisoners in their places of
residence or other places designated by the department."
§ 301.046(1). Subsection (6), which is titled "Escape," states,
"Any intentional failure of a prisoner to remain within the
extended limits of his or her confinement or to return within
the time prescribed by the superintendent is considered an
escape under s. 946.42(3)(a)." § 301.046(6). As Friedlander
was not under any such statutorily-created program, much less
one that provides for an escape charge if the terms of the
program are violated, we need not consider any statute outside
of Wis. Stat. § 946.42 in determining whether Friedlander would
be subject to an escape charge during his time at liberty.
25
No. 2017AP1337-CR
through no fault of that defendant is irrelevant to a sentence
credit determination.
C. Under Magnuson, Friedlander Is Not Entitled
To Sentence Credit.
¶43 Having determined the proper standard for evaluating
whether a defendant is entitled to sentence credit under Wis.
Stat. § 973.155, we now turn to whether Friedlander is entitled
to sentence credit for the time he spent at liberty from
September 27, 2016, through December 1, 2016. The State argues
that under Magnuson and Wis. Stat. § 946.42(1)(a)2., Friedlander
is not entitled to sentence credit for his time spent at liberty
because he was merely on probation and could not have been
charged with escape for leaving that status.11 Friedlander
claims that even upon an overruling of Riske and Dentici, he is
entitled to sentence credit on equitable principles since he was
at liberty through no fault of his own. We disagree.
¶44 Friedlander argues that despite the statute, we should
award sentence credit for equitable reasons. Courts, however,
should be most hesitant to adopt judicially created remedies
when the legislature, the primary policymaker, has statutorily
11 Wisconsin Stat. § 946.42(1)(a)2. states as follows:
"Custody" does not include the constructive
custody of a probationer, parolee, or person on
extended supervision by the department of corrections
or a probation, extended supervision, or parole agent
or, subject to s. 938.533(3)(a), the constructive
custody of a person who has been released to community
supervision or aftercare supervision under ch. 938
(emphasis added).
26
No. 2017AP1337-CR
addressed the topic. Here, we defer to those policy choices.
Cf. Black v. City of Milwaukee, 2016 WI 47, ¶30, 369
Wis. 2d 272, 882 N.W.2d 333. Moreover, Friedlander offers
little to explain how the sentence credit he seeks is anything
but a windfall. He seeks credit for time he spent at liberty
even though the circuit court here found that he knew he was
sentenced to serve additional time.
¶45 Under the rule we established in Magnuson and reaffirm
today, Friedlander was not in custody between September 27,
2016, and December 1, 2016, and is not entitled to sentence
credit. Our analysis is straightforward and consistent with
Magnuson. In order to receive sentence credit under Wis. Stat.
§ 973.155, Friedlander must have been "in custody." Under Wis.
Stat. § 946.42(1)(a), custody can either be actual or
constructive. Crucially however, the escape statute is clear
that "custody" does not include constructive custody of a
defendant on probation or extended supervision. See
§ 946.42(1)(a)2.
¶46 Here, Friedlander does not contend that he was in
actual custody between September 27 and December 1, 2016.
Therefore, Friedlander could be entitled to sentence credit for
the 65 days at issue only if he was under constructive custody
within the meaning of Wis. Stat. § 946.42(1)(a). He was not.
Unlike the defendant in Magnuson, who was under a bail
monitoring program and awaiting sentencing, Friedlander was on
probation between September 27 and December 1, 2016. Since
Friedlander was merely on probation during those 65 days, under
27
No. 2017AP1337-CR
§ 946.42(1)(a)2., Friedlander could not have been in "custody."
As a result, like the defendant in Magnuson, Friedlander is not
entitled to 65 days sentence credit.
¶47 Friedlander's reliance on equitable principles is
unpersuasive.12 In arguing equitable principles, Friedlander in
large part simply restates the rationale the court of appeals
12Unfortunately, mistaken early release is somewhat common.
See e.g., Monique Garcia, Gov. Pat Quinn admits mistake on
early-release of prisoners, blames corrections chief, Chicago
Tribune, Dec. 31, 2009, https://www.chicagotribune.com/news/ct-
xpm-2009-12-31-chi-quinn-parole-program-31dec31-story.html;
Kevin Johnson, Federal prison errors cause mistaken releases,
USA Today, May 24, 2016, https://www.usatoday.com/
story/news/nation/2016/05/24/federal-prison-errors-mistaken-
releases/84851378/; Kendra Alleyne, Computer Glitch Causes
Mistaken Early Release of More Than 3,000 Inmates, Campbell Law
Observer, Jan. 11, 2016, http://campbelllawobserver.com/
computer-glitch-causes-mistaken-early-release-of-more-than-3000-
inmates/; John Guidry II, Florida Prison's Mistaken/Accidental
Early Release Programs, Orlando Criminal Defense Blog, Jan. 1,
2011, https://www.orlandocriminaldefenseattorneyblog.com/
florida-prisons-mistakenaccide/; Associated Press, Jail inmate
mistakenly released instead of shipped to prison, The Post and
Courier, Jun. 5, 2017, https://www.postandcourier.com/news/a-
south-carolina-jail-inmate-was-mistakenly-released-instead-
of/article_1ab5db32-494f-11e7-b226-b3c803f08d6e.html.
We recognize that after being mistakenly released, some
federal and state courts have granted defendants sentence
credit, but other federal and state courts have not. Some
courts have awarded sentence credit based upon considerations of
equity, substantive due process, estoppel, common law, or other
policy. While it might be tempting to pick and choose a case
from another jurisdiction to lend support for granting or not
granting sentence credit, that exercise is of little value
without also considering the facts and law underlying that
decision. Instead of turning to other jurisdictions for
guidance, we rely upon Wisconsin's comprehensive sentence credit
statutes, Magnuson, and our escape statute, Wis. Stat. § 946.42.
28
No. 2017AP1337-CR
relied upon in Riske, which we overrule. As Friedlander
correctly notes, the sentence credit statute is "designed to
prevent a defendant from serving more time than his sentence or
his sentences call for." State v. Johnson, 2009 WI 57, ¶31, 318
Wis. 2d 21, 767 N.W.2d 207 (citing State v. Beets, 124
Wis. 2d 372, 379, 369 N.W.2d 382 (1985)). Here, however,
Friedlander does not argue that disallowing sentence credit for
the 65 days he was at liberty would somehow require him to serve
more time than given by the circuit court. Indeed, Friedlander
at this point has served the entirety of the eight months of
conditional jail time called for as part of his probation, which
was notably the result of a joint recommendation to the circuit
court by both the State and Friedlander's counsel. Friedlander
thus seeks a sentence credit presumably that would apply to a
sentence if probation were revoked and result in frustrating the
circuit court's sentence because he would then be subject to
less than the prescribed amount of time.13 Our holding today
13As discussed previously, Friedlander's eight months of
conditional jail time was a condition of probation. We
acknowledge that individuals who are deemed to be in custody
would nonetheless receive credit for the time in custody even if
that time is served as a condition of probation. Wis. Stat.
§ 946.42. We also acknowledge that probation is not a sentence.
See Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974)
(stating that "probation is not a sentence"). Even considering
the language Friedlander quotes from State v. Johnson, 2009 WI
57, 318 Wis. 2d 21, 767 N.W.2d 207, his situation is inapposite,
as Friedlander was on probation between September 27 and
December 1, 2016, but he was released to freedom instead of
serving his court-ordered time in custody.
29
No. 2017AP1337-CR
does not require Friedlander to serve more time in confinement
than he was ordered and thus does not violate any sort of
equitable principle associated with the sentence credit
statute.14 We cannot condone such a subversion of a judicial
officer's determination.
IV. CONCLUSION
¶48 This court is presented with two issues. First, we
must determine the meaning of "in custody" under Wis. Stat.
§ 973.155. In doing so, we consider whether the court of
appeals' decisions in Riske, 152 Wis. 2d 260, and Dentici, 251
Wis. 2d 436, are in harmony with this court's decision in
Magnuson, 233 Wis. 2d 40. We conclude that for the purpose of
receiving sentence credit under § 973.155, a defendant is "in
custody" whenever the defendant is subject to an escape charge
under Wis. Stat. § 946.42, or another statute which expressly
provides for an escape charge, as this court held in Magnuson.
In doing so, we overrule the court of appeals' decisions in
Riske and Dentici.
¶49 Second, we must determine whether Friedlander is
entitled to sentence credit for time he spent at liberty after
being mistakenly released from prison without being transferred
to serve his remaining conditional jail time. We conclude that
Friedlander is not entitled to sentence credit because
14
Friedlander did not raise any arguments regarding his
constitutional right to due process. Therefore, we need not
consider whether Friedlander's due process rights were violated,
and decline to do so.
30
No. 2017AP1337-CR
Friedlander, who was at liberty, could not have been subject to
conviction for escape under Wis. Stat. § 946.42. Thus, we
reverse the court of appeals.
By the Court.—The decision of the court of appeals is
reversed.
31
No. 2017AP1337-CR.ssa
¶50 SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree
with Justice Ann Walsh Bradley that fundamental principles of
fairness support the equitable doctrine of credit for time
erroneously spent at liberty.
¶51 I do not join Justice Bradley's dissent because, in my
view, the defendant is entitled to sentence credit under the
rule announced in State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40,
606 N.W.2d 536.
¶52 In Magnuson, this court held that "an offender's
status constitutes custody for sentence credit purposes when the
offender is subject to an escape charge for leaving that
status."1 The Magnuson court looked to Wisconsin's escape
statute, Wis. Stat. § 946.42(1)(a)1., to determine whether the
defendant was in "custody" as defined therein.
¶53 The escape statute provides that "'[c]ustody' includes
without limitation all of the following: . . . h. Custody of a
person subject to a confinement order under s. 973.09(4)."2
1 State v. Magnuson, 2000 WI 19, ¶1, 233 Wis. 2d 40, 606
N.W.2d 536.
2 Wis. Stat. § 946.42(1)(a)1.h.
The majority appears to conflate the definition of
"custody" as provided in subsection h. (i.e., subject to a
confinement order under Wis. Stat. § 973.09(4)) with the
definition of "custody" in subsection a. (i.e., actual custody
in an institution). See majority op., ¶46 n.12.
(continued)
1
No. 2017AP1337-CR.ssa
¶54 Wisconsin Stat. § 973.09(4) allows a court to require
as a condition of probation that the probationer be confined for
a period not to exceed one year.
¶55 In the instant case, the defendant was incarcerated in
the Oshkosh Correctional Institution as a result of a conviction
that is not relevant to resolving the sentence credit issue
presented here. In a separate criminal case, the defendant
pleaded guilty to bail jumping, and the circuit court ordered
that the defendant be confined in the Jefferson County jail for
eight months as a condition of his probation. This order
constitutes a confinement order under Wis. Stat. § 973.09(4).
¶56 After completing his prison sentence in Oshkosh, the
defendant was supposed to be transferred to the county jail to
Individuals serving jail time as a condition of their
probation per Wis. Stat. § 973.09(4) would be entitled to
sentence credit for that time even if subsection h. did not
exist because that time would qualify as "custody" under
subsection a. That is, the jail time would constitute time
spent in the "[a]ctual custody of an institution." Wis. Stat.
§ 946.42(1)(a)1.a. The majority's contrary reasoning renders
subsection h. superfluous.
To the extent the majority relies on Wis. Stat.
§ 946.42(1)(a)2., that reliance is misplaced. Section
946.42(1)(a)2. specifies that "'[c]ustody' does not include the
constructive custody of a probationer . . ." (emphasis added).
Probationers serving jail time as a condition of their probation
are not in constructive custody. They are in the "[a]ctual
custody of an institution" per § 946.42(1)(a)1.a. while serving
that conditional jail time. See State v. Zimmerman, 2001 WI App
238, ¶¶13-14, 248 Wis. 2d 370, 635 N.W.2d 864 (providing helpful
statutory and legislative history regarding the escape statute's
application to probationers).
2
No. 2017AP1337-CR.ssa
serve his confinement as a condition of his probation, but
instead, he was mistakenly released through no fault of his own.
¶57 In my view, the defendant was still "subject to a
confinement order under s. 973.09(4)" upon his mistaken release.3
¶58 In the instant case, the defendant was not aware that
he was mistakenly released. While mistakenly released, the
defendant met with his probation agent as he was required to do.
The probation agent did not tell the defendant that he needed to
report to jail. However, approximately six weeks after the
defendant's mistaken release, the Jefferson County Sheriff's
Office discovered that the defendant was mistakenly released
from prison. A sergeant from the sheriff's office contacted the
defendant's probation agent. The probation agent contacted the
defendant, and the defendant promptly cooperated with law
enforcement officials in sorting out how to proceed.
¶59 The defendant posits that if he had "left the state or
failed to respond to inquiries from his probation agent or law
enforcement concerning his court-ordered confinement, he []
could have been charged with escape."
3See State v. Edwards, 2003 WI App 221, ¶¶20-21, 267
Wis. 2d 491, 671 N.W.2d 371 (explaining that a probationer
serving jail time as a condition of his probation who was
periodically transferred to a hospital for a medical condition
was still in "custody" while at the hospital because he "was
subject to a confinement order pursuant to Wis. Stat.
§ 973.09(4)," but when the circuit court stayed its order for
conditional jail time, the probationer was no longer in
"custody" because "he was no longer subject to the confinement
order during the periods of his hospitalizations").
3
No. 2017AP1337-CR.ssa
¶60 I agree. Under the defendant's hypothetical scenario,
fleeing the state or failing to respond to inquiries from law
enforcement concerning his Wis. Stat. § 973.09(4) confinement
order would be persuasive evidence that the defendant intended
to avoid complying with the confinement order, and he could be
charged with escape.
¶61 Because I conclude that the defendant's status during
the time period at issue constituted "custody" for sentence
credit purposes, I further conclude that the defendant is
entitled to sentence credit under the Magnuson rule.
¶62 Accordingly, I dissent.
4
No. 2017AP1337-CR.awb
¶63 ANN WALSH BRADLEY, J. (dissenting). The majority
bucks an apparent trend in the law of our sister states and
federal circuits that have adopted the equitable doctrine of
credit for time erroneously spent at liberty. Paying little
mind to the plethora of courts that have adopted the doctrine,
it summarily dispatches with Friedlander's invocation of equity.
¶64 In my view, persuasive authority from other
jurisdictions and fundamental fairness require a deeper
examination of this topic.
¶65 When Friedlander was released from prison, he was told
by words and actions that he was free to go. Relying on the
information he received from Oshkosh Correctional Institution,
where he had been previously incarcerated, he took the
Department of Corrections at its word.
¶66 By rejecting the equitable doctrine of credit for time
erroneously spent at liberty, the majority inequitably holds
Friedlander's reliance on the State against him and allows
several state players to escape accountability for their
mistakes. Yet, fundamental fairness appears to rest squarely
with Friedlander.
¶67 Adopting the doctrine ensures a fair and equitable way
to resolve an uncommon factual scenario. Additionally,
consistent with case law, it holds the State to its obligation
to provide a certain end date for incarceration and prevents the
service of a sentence in installments.
¶68 I conclude that Friedlander should receive the benefit
of the equitable doctrine of credit for time erroneously spent
1
No. 2017AP1337-CR.awb
at liberty. This conclusion is consistent with the sense of
fairness and equity embraced by a majority of the federal
circuits and an abundance of state courts that have adopted the
doctrine and at odds with the sense of fairness and equity
tersely espoused by the majority here.
¶69 Accordingly, I respectfully dissent.
I
¶70 The record throughout this case reflects mistakes by
the State and some uncertainty on the part of the court. At the
outset, the circuit court was unsure as to where the Department
of Corrections would have Friedlander serve the conditional jail
sentence that remained after his prison sentence was complete.
Majority op., ¶5. At sentencing, the circuit court indicated:
Clearly you'll be serving your sentence when you have
a prison sentence and conditional jail in the prison,
and that's the Court's expectation, and I doubt that
the Department of Corrections will in any way
interpret that portion any differently, but it's just
a question of once your underlying case is done and if
there's still some of this conditional jail time,
where they'll have you serve it (emphasis added).
Thus, the circuit court left it to the Department of Corrections
to resolve the unanswered question of where it would have
Friedlander serve the extra conditional time.
¶71 The uncertainty was resolved when, according to
Friedlander, a social worker at Oshkosh Correctional Institution
informed him that his conditional jail sentence was satisfied
prior to his release. Majority op., ¶8.
¶72 This resolution by the Department of Corrections was
underscored when, after completing his prison sentence,
2
No. 2017AP1337-CR.awb
Friedlander was released from Oshkosh Correctional Institution
instead of being transported to the Jefferson County jail to
finish any conditional jail sentence. Id., ¶6. It was further
underscored by Oshkosh officials never bothering to notify
Jefferson County of Friedlander's release. Id.
¶73 But why would they?
¶74 The sentencing court apparently left to the Department
of Corrections the decision as to where the conditional time
would be served and they apparently determined it would be
served prior to his release from Oshkosh. We now learn,
however, that Oshkosh's apparent determination of where
Friedlander would serve the extra conditional jail time and
their actions supporting that determination were all mistakes.
¶75 To compound the apparently mistaken determination and
actions, once Friedlander was released, more mistakes and
uncertainty appear.
¶76 Upon his release, Friedlander immediately met with his
probation agent. Id., ¶7. At the initial meeting, the agent
either did not know or knew but failed to tell him that he
needed to report to jail to serve additional time. Id.
Friedlander met with his probation agent a second time. Id.
Again, the agent failed to tell him to report to jail or in any
way indicate that he had additional time to serve. Id. Neither
the probation agent nor Friedlander apparently saw a need to
contact the circuit court to clarify whether Friedlander had to
serve additional time. Id.
3
No. 2017AP1337-CR.awb
¶77 The Jefferson County Sheriff's Office eventually was
concerned about Friedlander's status and contacted his probation
agent, who in turn spoke with Friedlander. Id., ¶8.
Friedlander immediately contacted the Jefferson County Sheriff's
Office after his probation agent informed him of the issue. Id.
¶78 Friedlander relayed to the sheriff's office what his
social worker had told him about his conditional jail sentence
being satisfied prior to his release. Id. Unsure how to
proceed, the sheriff's office wrote a letter to the circuit
court asking how to resolve the situation. Id.
¶79 Similarly unsure how to proceed, the circuit court
held a hearing. Id., ¶9. After hearing testimony and argument,
it ultimately concluded that under existing law Friedlander is
not entitled to sentence credit for his time erroneously spent
at liberty. Id., ¶11.
II
¶80 Although I agree with the majority's reliance on State
v. Magnuson, 2000 WI 19, ¶47, 233 Wis. 2d 40, 606 N.W.2d 536, I
part ways with the majority when it brushes off Friedlander's
argument that he should be granted sentence credit pursuant to
equitable principles. It spurns the litany of our sister states
and federal circuits that have adopted the equitable doctrine of
credit for time erroneously spent at liberty. See majority op.,
¶47 n.12. In summary fashion, the majority dispenses with
Friedlander's invocation of the doctrine. See majority op.,
¶¶44, 47. In my view, the majority is incorrect in its summary
dismissal of Friedlander's legitimate equitable concerns.
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¶81 This court has stated that "confinement 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). Putting this principle
into practice, the Tenth Circuit has determined that "[a]
prisoner has some rights. A sentence of five years means a
continuous sentence, unless interrupted by escape, violation of
parole, or some fault of the prisoner, and he cannot be required
to serve it in installments." White v. Pearlman, 42 F.2d 788,
789 (10th Cir. 1930) (emphasis added).1
1 The Ninth Circuit has further explained:
The least to which a prisoner is entitled is the
execution of the sentence of the court to whose
judgment he is duly subject. If a ministerial
officer, such as a marshal, charged with the duty to
execute the court's orders, fails to carry out such
orders, that failure cannot be charged up against the
prisoner. The prisoner is entitled to serve his time
promptly if such is the judgment imposed, and he must
be deemed to be serving it from the date he is ordered
to serve it and is in the custody of the marshal under
the commitment, if, without his fault, the marshal
neglects to place him in the proper custody. Any
other holding would give the marshal, a ministerial
officer, power more arbitrary and capricious than any
known in the law. A prisoner sentenced for one year
might thus be required to wait forty under the shadow
of his unserved sentence before it pleases the marshal
to incarcerate him. Such authority is not even
granted to courts of justice, let alone their
ministerial officers. Citation of authority is hardly
needed to establish so elementary a proposition.
Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937) (citations
omitted).
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No. 2017AP1337-CR.awb
¶82 In the federal courts, this principle has manifested
as "a common law rule, which has been held applicable to federal
sentencing, that unless interrupted by fault of the prisoner (an
escape, for example) a prison sentence runs continuously from
the date on which the defendant surrenders to begin serving it."
Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994). In
practice, this means that "[t]he government is not permitted to
delay the expiration of the sentence either by postponing the
commencement of the sentence or by releasing the prisoner for a
time and then reimprisoning him." Id.
¶83 Such a proposition is embodied by the "doctrine of
credit for time erroneously spent at liberty." Pursuant to this
doctrine, a convicted person is granted "credit against his
sentence for time spent at liberty due to 'simple or mere
negligence on behalf of the government' and 'provided the delay
in execution of sentence was through no fault [of the convicted
person].'" In re Roach, 74 P.3d 134, 137 (Wash. 2003) (citing
United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988)).
6
No. 2017AP1337-CR.awb
¶84 The vitality of this doctrine has been recognized by a
majority of federal circuit courts and an abundance of state
courts.2 Wisconsin should do the same.
¶85 Adopting the equitable doctrine would be consistent
with the trend in federal and state courts throughout the
country that implicitly reject an assertion that it necessarily
results in a windfall for defendants. Indeed, many federal and
state courts have "moved away from a strict application of the
traditional rule requiring a released prisoner to serve his full
sentence no matter the circumstances of his release, and have
granted an erroneously released prisoner relief based on
2
See Espinoza v. Sabol, 558 F.3d 83, 90 (1st Cir. 2009);
Kiendra v. Hadden, 763 F.2d 69, 72-73 (2d Cir. 1985); Vega v.
United States, 493 F.3d 310, 318 (3d Cir. 2007); Free v. Miles,
333 F.3d 550, 554 (5th Cir. 2003); United States v. Croft, 450
F.2d 1094, 1097 (6th Cir. 1971); Dunne v. Keohane, 14 F.3d 335,
336-37 (7th Cir. 1994); Green v. Christiansen, 732 F.2d 1397,
1400 (9th Cir. 1984); White v. Pearlman, 42 F.2d 788, 789 (10th
Cir. 1930); McCall v. State, 594 So.2d 733, 734 (Ala. Crim. App.
1992); McKellar v. Arizona State Dep't of Corr., 566 P.2d 1337,
1339-40 (Ariz. 1977); People v. Stark, 902 P.2d 928, 930 (Colo.
App. 1995); Drumwright v. State, 572 So.2d 1029, 1031 (Fla.
Dist. Ct. App. 1991); Derrer v. Anthony, 463 S.E.2d 690, 693
(Ga. 1995); State v. Kline, 475 So.2d 1093, 1093 (La. 1985) (per
curiam); State v. Williams, 410 A.2d 251, 252 (N.J. 1980);
People ex rel. Bilotti v. Warden, New York City Corr. Inst. For
Men, 345 N.Y.S.2d 584, 585 (N.Y. App. Div. 1973) (per curiam);
Jacobs v. Robinson, 410 A.2d 959, 960 (Pa. Commonw. Ct. 1980);
Curry v. State, 720 S.W.2d 261, 263-64 (Tex. Ct. App. 1986); In
re Roach, 74 P.3d 134, 137 (Wash. 2003); see also Gabriel J.
Chin, Getting Out of Jail Free: Sentence Credit for Periods of
Mistaken Liberty, 45 Cath. U. L. Rev. 403, 406-10 (1996); Andrew
T. Winkler, Implicit in the Concept of Erroneous Liberty: The
Need to Ensure Proper Sentence Credit in the Fourth Circuit, 35
N.C. Cent. L. Rev. 1, 11-20 (2012).
7
No. 2017AP1337-CR.awb
principles of equity and fairness." Roach, 74 P.3d at 136
(internal citations omitted).
¶86 The doctrine of credit for time erroneously spent at
liberty is a fair and equitable way to resolve an infrequent
factual situation. It holds the State to its obligation to
provide a certain end date for incarceration and prevents the
service of a sentence in installments. "The government is not
permitted to play cat and mouse with the prisoner, delaying
indefinitely the expiation of his debt to society and his
reintegration into the free community." Dunne, 14 F.3d at 336.
Yet the majority is unbothered by the possibility that
Friedlander and others similarly situated may face just the type
of piecemeal sentence that federal case law instructs us to
avoid.
¶87 This case presents the very "cat and mouse" scenario
the equitable doctrine is designed to prevent. Mistakes and
uncertainty on the part of multiple state actors——the Oshkosh
social worker who told Friedlander his sentence was satisfied,
the Oshkosh staff who failed to notify Jefferson County of his
release, the probation agent who neglected to tell Friedlander
to report to jail, the Jefferson County Sheriff's Office that
was unsure how to handle the situation, and the circuit court
that was similarly unsure how to address the scenario——resulted
in the possibility of Friedlander serving a non-continuous
sentence.
¶88 Such a sentence served in installments is, as the
Seventh Circuit observed in Dunne, detrimental to the
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No. 2017AP1337-CR.awb
reintegration of prisoners back into society. See id. "When
courts fail to recognize the doctrine [of credit for time
erroneously spent at liberty], erroneously released prisoners
who have successfully rehabilitated themselves into society must
continually suffer under the auspice that the government may one
day require re-incarceration for the service of an unfulfilled
sentence." Andrew T. Winkler, Implicit in the Concept of
Erroneous Liberty: The Need to Ensure Proper Sentence Credit in
the Fourth Circuit, 35 N.C. Cent. L. Rev. 1, 30 (2012).
¶89 Additionally, despite the Department of Corrections,
law enforcement, and the circuit court being either mistaken or
unsure how to proceed, the majority opines that it is the
defendant's responsibility to track his release date. In the
majority's view, it is up to Friedlander to tell the State that
he may have more time to serve if he is released early through
no fault of his own.
¶90 That's easier said than done. Some defendants may
have very complex sentences, with overlapping consecutive and
concurrent periods of confinement. To expect a defendant to
monitor and repeatedly correct the State's math places an
untenable and unreasonable responsibility on a defendant——
especially when the State indicates by words and actions that he
is free.
¶91 In sum, the government, by its words and actions, told
Friedlander that he was free and then took it back.
Friedlander's rehabilitation and reintegration into society
should not be delayed because of the government's errors. He
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No. 2017AP1337-CR.awb
should receive the sentence credit he seeks pursuant to
equitable doctrine of credit for time erroneously spent at
liberty.
¶92 For the reasons stated above, I respectfully dissent.
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1