2020 WI 35
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2440-CR and 2017AP2441-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Richard H. Harrison, Jr.,
Defendant-Respondent-Cross Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 386 Wis. 2d 629,927 N.W.2d 923
(2019 – unpublished)
OPINION FILED: April 17, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 15, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Clark
JUDGE: Nicholas J. Brazeau, Jr.
JUSTICES:
ROGGENSACK, C.J., delivered the majority opinion of the Court,
in which ZIEGLER, REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN,
JJ., joined. DALLET, J., filed a concurring opinion in which
ANN WALSH BRADLEY, J. joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Jennifer R. Remington, assistant attorney general and
Joshua L. Kaul, attorney general. There was an oral argument by
Jennifer R. Remington.
For the defendant-respondent-cross-petitioner, there was a
brief filed by Jeremy A. Newman, assistant state public defender.
There was an oral argument by Jeremy A. Newman.
2020 WI 35
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2017AP2440-CR & 2017AP2441-CR
(L.C. No. 2007CF115)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Petitioner, FILED
v.
APR 17, 2020
Richard H. Harrison, Jr.,
Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Cross
Petitioner.
ROGGENSACK, C.J., delivered the majority opinion of the Court, in
which ZIEGLER, REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN, JJ.,
joined. DALLET, J., filed a concurring opinion in which ANN WALSH
BRADLEY, J. joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review an
unpublished decision of the court of appeals1 reversing an order
of the circuit court2 that granted sentence credit to Richard H.
State v. Harrison, Nos. 2017AP2440-CR & 2017AP2441-CR,
1
unpublished slip op. (Wis. Ct. App. Mar. 21, 2019).
The Honorable Nicholas J. Brazeau, Jr. of Clark County
2
presided.
Nos. 2017AP2440-CR & 2017AP2441-CR
Harrison, Jr. pursuant to Wis. Stat. § 973.155(1)(a) (2017–18)3
and remanded with directions to advance the commencement of
concurrent terms of extended supervision for Harrison's 2007 and
2008 cases to the date they would have begun but for Harrison's
confinement for unrelated convictions that later were set aside.
¶2 We agree with the court of appeals that Harrison is not
entitled to sentence credit pursuant to Wis. Stat.
§ 973.155(1)(a). Harrison is not entitled sentence credit under
§ 973.155(1)(a) because the days he spent in custody for which he
seeks sentence credit were not in connection with the courses of
conduct for which those sentences were imposed. He also is not
entitled to sentence credit pursuant to Wis. Stat. § 973.04 because
sentences for the 2007 and 2008 crimes were not vacated and re-
imposed for the same crimes and the requested credit did not arise
from vacated sentences for those crimes. Furthermore, we conclude
that the court of appeals erred by advancing the commencement of
Harrison's terms of extended supervision for the 2007 and 2008
cases. Whether to employ advancement is a public policy decision
that is better left to the legislature. Accordingly, we reverse
the court of appeals decision in regard to advancement.
3All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2
Nos. 2017AP2440-CR & 2017AP2441-CR
I. BACKGROUND
A. Harrison's Criminal History
¶3 Harrison has four relevant criminal cases. We shall
refer to the individual cases by the year they were charged: 2007,
2008, 2010 and 2011. Importantly, these cases involve unrelated
conduct.
1. The 2007 and 2008 Cases
¶4 In March 2009, Harrison and Clark County reached a global
plea agreement for his 2007 and 2008 cases. For the 2007 case, he
pled no contest to theft-business setting. The circuit court
withheld sentence and placed Harrison on probation for six years.
For the 2008 case, he pled no contest to fraud/rendering income
tax return. The circuit court again withheld sentence and placed
Harrison on probation for three years. The terms of probation
were to run concurrently.
¶5 Less than three years later, the Department of
Corrections revoked Harrison's probation. In December 2011, the
circuit court sentenced Harrison, in each case, to six years of
imprisonment, consisting of three years of confinement and three
years of extended supervision. The sentences were to run
concurrently and sentence credit was awarded.
2. The 2010 Case
¶6 In July 2010, Harrison was charged with burglary of a
building or dwelling, resisting or obstructing an officer and theft
of movable property, all as a repeater. A jury found Harrison
guilty on all three counts. In January 2012, the circuit court
sentenced Harrison to a total of twenty years of imprisonment,
3
Nos. 2017AP2440-CR & 2017AP2441-CR
consisting of thirteen years of confinement and seven years of
extended supervision. Notably, his sentences were to run
consecutively to each other and to all other sentences already
imposed. Therefore, Harrison had to finish serving his terms of
confinement for his 2007 and 2008 cases before the terms of
confinement for the 2010 case commenced.4
¶7 The State concedes that Harrison's terms of confinement
imposed for his 2007 and 2008 cases ended in February 2014. At
that time, Harrison could have been released to extended
supervision but for the sentences imposed for his 2010 case, as
well as the 2011 case discussed below.
¶8 In January 2015, we set aside Harrison's convictions in
the 2010 case because we concluded that his statutory right to
judicial substitution had been violated.5 We remanded for a new
trial but the case was dismissed on the prosecutor's motion.
3. The 2011 Case
¶9 In September 2011, Harrison was charged with repeated
sexual assault of a child. A jury found Harrison guilty, and, in
March 2013, the circuit court sentenced Harrison to forty years of
imprisonment, consisting of thirty years of confinement and ten
years of extended supervision. The sentence was to run
consecutively to all other sentences already imposed.
Wisconsin Stat. § 302.113(4) states in relevant part: "All
4
consecutive sentences . . . shall be computed as one continuous
sentence. The person shall serve any term of extended supervision
after serving all terms of confinement in prison."
State
5 v. Harrison, 2015 WI 5, 360 Wis. 2d 246, 858
N.W.2d 372.
4
Nos. 2017AP2440-CR & 2017AP2441-CR
¶10 Harrison petitioned the Western District of Wisconsin
for a writ of habeas corpus, arguing his conviction must be set
aside because he had been denied effective assistance of counsel
in violation of his Sixth Amendment right. The district court
granted his petition in October 2016.6 In January 2017, the circuit
court vacated the conviction. At that point, the State had to
release or retry Harrison.7
¶11 In January 2019, the State and Harrison reached a plea
agreement under which Harrison pled no contest to causing mental
harm to a child. In August 2019, the circuit court imposed a
sentence of eight years imprisonment, consisting of six years of
confinement and two years of extended supervision. The sentence
was to run consecutively to all other sentences already imposed.
B. Procedural History
¶12 In August 2017, after the circuit court vacated his
conviction in the 2011 case but before he was resentenced, Harrison
moved for sentence credit pursuant to Wis. Stat. § 973.155(1)(a).
Specifically, he argued that from February 2014, when he would
have begun extended supervision on the sentences for the 2007 and
2008 cases but for confinement on the sentences for the 2010 and
2011 cases which later were set aside, to January 2017, when his
sentence for repeated sexual assault of a child was vacated
pursuant to the writ of habeas corpus, he was not confined under
6 Harrison v. Tegels, 216 F. Supp. 3d 956 (W.D. Wis. 2016).
7 The record shows that he was not released due to failure to
meet the terms of the bond that had been set.
5
Nos. 2017AP2440-CR & 2017AP2441-CR
a valid sentence. He moved to credit this period (February 2014
to January 2017) against the time he was to serve on extended
supervision for the 2007 and 2008 cases.
¶13 The circuit court granted Harrison's motion, explaining
it would be "silly to view the incarceration as simply wasted,
dead time." The circuit court viewed its decision as
"fundamentally fair."
¶14 The court of appeals took a different approach but
reached a similar result. State v. Harrison, Nos. 2017AP2440-CR
& 2017AP2441-CR, unpublished slip op. (Wis. Ct. App. Mar. 21,
2019). It first concluded Harrison was not entitled sentence
credit because the sentence credit statute, Wis. Stat.
§ 973.155(1)(a), does not authorize credit for time spent in
custody for a course of conduct unrelated to the course of conduct
for which the sentence was imposed. Id., ¶2. As the court of
appeals noted, "the courses of conduct were different between the
cases . . . ." Id. However, the court of appeals concluded the
circuit court reached "the correct practical result." Id., ¶3.
¶15 To so conclude, the court of appeals adopted what it
called the "advance-the-commencement-of-valid-sentences concept."
Id. "Under this approach, invalid sentence time is ignored, which
has the effect of advancing to an earlier point on the timeline
the commencement of all valid sentences." Id. Applying that
approach, the court of appeals reasoned, "Harrison's periods of
extended supervision in the two cases in which the convictions
were not vacated should be deemed to have begun as soon as Harrison
finished serving the initial confinement portion of his sentences
6
Nos. 2017AP2440-CR & 2017AP2441-CR
in his only valid cases: the two in which his convictions were not
vacated." Id. The court of appeals, accordingly, reversed the
circuit court order granting sentence credit but remanded with
directions to advance the commencement of the terms of extended
supervision for the 2007 and 2008 cases. Id., ¶4. Importantly,
the court of appeals noted that Harrison had not been resentenced
in the 2011 case. Id., ¶10 n.2.
¶16 The State petitioned for review, arguing the court of
appeals effectively granted Harrison sentence credit even though
it was not authorized by Wis. Stat. § 973.04. In other words, the
State asserted that employing advancement contravened the
provisions of § 973.04.
¶17 Harrison filed a cross-petition for review, arguing the
circuit court's decision was correct: he could be granted
sentence credit under Wis. Stat. § 973.155(1)(a). Harrison was
concerned that were he not awarded sentence credit and his extended
supervision was revoked, he could be "reconfined for all of the
available time on the 2007 and 2008 sentences that Harrison was
not 'in custody in connection with' those sentences." To explain
further, he contended that if we were to imply that he was on
extended supervision when he actually was confined, revocation
would, arguably, permit the State to confine him for a longer
period than if he received credit that was applied to extended
supervision for his 2007 and 2008 cases. We granted both petitions
before Harrison was resentenced in the 2011 case.
¶18 Following his resentencing in the 2011 case, Harrison
moved us to summarily reverse the court of appeals and remand to
7
Nos. 2017AP2440-CR & 2017AP2441-CR
the circuit court with directions to deny application of sentence
credit to his extended supervision for his 2007 and 2008 cases.
He conceded that he is not entitled sentence credit or advancement
in those cases. Although the State maintained that Harrison was
entitled to neither, it opposed his motion because the State asks
us to reach the merits in the matter now before us. The State
argued in its response to the motion, "Harrison wants to concede
the issues so he can receive sentence credit on his new period of
confinement for causing mental harm to a child . . . instead of
his old periods of extended supervision." The State also argued
that the issues presented are not moot.
¶19 We denied Harrison's motion; however, we ordered the
parties to address two additional issues:8 first, whether Harrison
is judicially estopped from arguing for reversal, and second,
whether we should summarily reverse or vacate the court of appeals'
decision given that both parties now take similar legal positions.
¶20 We reach the merits and reverse the court of appeals for
the reasons explained below.
II. DISCUSSION
A. Standard of Review
¶21 We address issues with differing standards of review.
First, we decide whether Harrison is judicially estopped from
arguing for reversal. We independently determine whether the
elements of judicial estoppel are satisfied. State v. Ryan, 2012
WI 16, ¶30, 338 Wis. 2d 695, 809 N.W.2d 37 (citing State v. White,
8 Supreme Court Order, October 15, 2019.
8
Nos. 2017AP2440-CR & 2017AP2441-CR
2008 WI App 96, ¶15, 312 Wis. 2d 799, 754 N.W.2d 214). If the
elements are satisfied, the decision to estop a party is a
discretionary decision for the first court addressing the matter.
See Ryan, 338 Wis. 2d 695, ¶30 (citing Salveson v. Douglas Cty.,
2001 WI 100, ¶38, 245 Wis. 2d 497, 630 N.W.2d 182). We are the
first court to address judicial estoppel in this matter.
¶22 We also consider whether the issues raised with regard
to Wis. Stat. § 973.155(1)(a) and Wis. Stat. § 973.04 are moot.
We decide as a matter of law whether a controversy is moot when it
is based on undisputed facts. Winnebago Cty. v. Christopher S.,
2016 WI 1, ¶31, 366 Wis. 2d 1, 878 N.W.2d 109.
¶23 Whether to summarily dispose of a petition or to address
the merits when a party changes positions from that initially
presented is a decision committed to our discretion. Wis. Stat.
§ 809.21(1) ("The court upon its own motion or upon the motion of
a party may dispose of an appeal summarily.").
¶24 Here, we choose to reach the merits. Therefore, we
decide whether Wis. Stat. § 973.155(1)(a) authorizes sentence
credit for extended supervision for the 2007 and 2008 cases and to
some extent, § 973.155(1)(a)'s interaction with Wis. Stat.
§ 973.04. To do so, we independently interpret and apply Wisconsin
statutes under known facts as questions of law. Daniel v.
Armslist, LLC, 2019 WI 47, ¶13, 386 Wis. 2d 449, 926 N.W.2d 710;
State v. Friedlander, 2019 WI 22, ¶17, 385 Wis. 2d 633, 923
N.W.2d 849.
¶25 The court of appeals applied a concept similar to that
found in federal common law wherein commencement of a subsequent,
9
Nos. 2017AP2440-CR & 2017AP2441-CR
consecutive sentence that follows an earlier sentence later
determined to be invalid is advanced to the date on which the
second sentence was imposed. Tucker v. Peyton, 357 F.2d 115, 118
(4th Cir. 1966). We have not discussed advancement as a Wisconsin
common law concept relating to sentencing. The nature and
applicability of a common law doctrine are questions of law that
we independently review. State v. Hobson, 218 Wis. 2d 350, 358,
577 N.W.2d 825 (1998).
B. Judicial Estoppel
¶26 "Judicial estoppel is an equitable doctrine invoked at
the court's discretion to preclude a party from abusing the court
system." State v. Steinhardt, 2017 WI 62, ¶18 n.14, 375
Wis. 2d 712, 896 N.W.2d 700; see also State v. Petty, 201 Wis. 2d
337, 347, 548 N.W.2d 817 (1996) (explaining that judicial estoppel
is intended "to protect against a litigant playing 'fast and loose
with the courts' by asserting inconsistent positions").
¶27 To invoke judicial estoppel requires: "(1) the later
position must be clearly inconsistent with the earlier position;
(2) the facts at issue should be the same in both cases; and
(3) the party to be estopped must have convinced the first court
to adopt its position." Ryan, 338 Wis. 2d 695, ¶33.
¶28 With respect to sentence credit, Harrison contends his
"original position, that he was entitled to sentence credit, was
wholly contingent on the fact that he had not been resentenced in
either the 2010 or 2011 case." The State responds that both
parties were aware of the likelihood of resentencing.
10
Nos. 2017AP2440-CR & 2017AP2441-CR
¶29 The State also contends that Harrison's change in
position is an attempt at "manipulating the court system."
However, the State has not asked us to estop Harrison because it
also seeks reversal, which makes this case different than most
cases where we considered judicial estoppel. Harrison also
responds: "[I]t is unclear how or why this [c]ourt would estop
Harrison from conceding that he is not entitled to sentence credit
in this appeal."
¶30 We agree with Harrison. We should not estop a party
from making a necessary concession. Attorneys, particularly those
who participate in appeals where the court's decision will
establish precedent for non-parties, are expected to make
concessions. See Michael R. Dreeben, The Role of the Solicitor
General in the Department of Justice's Appellate Process, United
States Attorneys' Bulletin, January 2013, at 5, 10 ("Members of
the [United States] Supreme Court expect prosecutors to confess
error in appropriate cases. Indeed, Justices have expressed
incomprehension when prosecutors have failed to confess
error . . . ."). Furthermore, SCR 20:3.3 obligates attorneys to
be candid with tribunals.
¶31 We conclude Harrison has not taken a position as to
advancement that is clearly inconsistent with an earlier position.
Also, whether to employ advancement in a sentencing context is a
question we have not directly addressed. Accordingly, we conclude
that Harrison is not estopped from making sentence credit or
advancement concessions.
C. The Merits
11
Nos. 2017AP2440-CR & 2017AP2441-CR
¶32 As we explained above, we do not apply the doctrine of
judicial estoppel to Harrison; furthermore, we conclude that
Harrison's change in position is an insufficient basis for
summarily reversing or vacating an opinion that was the result of
an adversarial proceeding. While we have summarily disposed of
cases following a concession of a party, the reversible errors in
such cases have been obvious. See e.g., State v. Lord, 2006 WI
122, ¶5, 297 Wis. 2d 592, 723 N.W.2d 425 (per curiam) (explaining
that the "State's concession that the legal principle adopted by
the court of appeals is an incorrect statement of law effectively
eliminates the issue upon which the petition for review was
granted."). This case, unlike Lord, presents difficult and novel
questions of law for which our opinion will be helpful.
Accordingly, we decline to summarily dispose of the petition for
review.
¶33 We also conclude that the court of appeals' employment
of advancement in regard to the 2007 and 2008 cases likely
precludes mooting the issues raised in this review. Christopher
S., 366 Wis. 2d 1, ¶31. However, even if the issues were moot, we
would decide them because the application of advancement and
sentence credit under Wis. Stat. § 973.155 or Wis. Stat. § 973.04
when a sentence has been vacated are issues likely to arise again
and our decision will alleviate uncertainty. Outagamie Cty. v.
Melanie L., 2013 WI 67, ¶80, 349 Wis. 2d 148, 833 N.W.2d 607.
Accordingly, we address the merits.
D. Wisconsin's Sentence Credit Statutes
1. General Principles of Statutory Interpretation
12
Nos. 2017AP2440-CR & 2017AP2441-CR
¶34 We interpret Wis. Stat. § 973.155 and Wis. Stat.
§ 973.04 to decide whether Harrison is entitled sentence credit
for the 2007 and 2008 cases. "The purpose of statutory
interpretation is to determine what the statute means so that it
may be properly applied." Westmas v. Creekside Tree Serv. Inc.,
2018 WI 12, ¶18, 379 Wis. 2d 471, 907 N.W.2d 68 (citing State ex
rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110). We, therefore, begin with the
language of the statute. Westmas, 379 Wis. 2d 471, ¶18 (citing
Kalal, 271 Wis. 2d 633, ¶45). "If the words chosen for the statute
exhibit a 'plain, clear statutory meaning,' without ambiguity, the
statute is applied according to the plain meaning of the statutory
terms." Westmas, 379 Wis. 2d 471, ¶18 (quoting State v. Grunke,
2008 WI 82, ¶22, 311 Wis. 2d 439, 752 N.W.2d 769).
¶35 In construing the plain meaning of a particular statute,
we may consider related statutes. Winebow, Inc. v. Capitol-Husting
Co., Inc., 2018 WI 60, ¶30, 381 Wis. 2d 732, 914 N.W.2d 631
(quoting State v. Clausen, 105 Wis. 2d 231, 244, 313 N.W.2d 819
(1982)). "Context is important to meaning." Kalal, 271 Wis. 2d
633, ¶46. Statutes are interpreted "in relation to the language
of surrounding or closely-related statutes." Id.; see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 252 (2012) ("Statutes in pari materia are to be interpreted
together, as though they were one law.").
2. Wisconsin Stat. § 973.155
¶36 Wisconsin Stat. § 973.155(1)(a) states in relevant
part: "A convicted offender shall be given credit toward the
13
Nos. 2017AP2440-CR & 2017AP2441-CR
service of his or her sentence for all days spent in custody in
connection with the course of conduct for which sentence was
imposed." Therefore, two statutory issues are
presented: (1) whether Harrison was in custody from February 2014
to January 2015, when his convictions for the 2010 case were
vacated, in connection with the courses of conduct that gave rise
to the 2007 and 2008 cases; and (2) whether Harrison was in custody
from January 2015 to January 2017, when his conviction for the
2011 case was vacated, in connection with the courses of conduct
that gave rise to the 2007 and 2008 cases.
3. Wisconsin Stat. § 973.04
¶37 Wisconsin Stat. § 973.04 states: "When a sentence is
vacated and a new sentence is imposed upon the defendant for the
same crime, the department shall credit the defendant with
confinement previously served." In order to receive sentence
credit pursuant to § 973.04 the following requirements must be
met: (1) an imposed sentence must be vacated; (2) the vacated
sentence was re-imposed for the same crime; (3) the time the
defendant requested as sentence credit was served in satisfaction
of the sentence that was vacated. State v. Lamar, 2011 WI 50, ¶4,
334 Wis. 2d 536, 799 N.W.2d 758.
a. Harrison's Positions
¶38 Harrison argued at the court of appeals that he must
have been confined until January 2017 "based on the course[s] of
conduct for which sentences were imposed in the 2007 and 2008 cases
[because] [t]here was no other legal basis for [his] confinement."
Therefore, Harrison argued, his sentences from the 2007 and 2008
14
Nos. 2017AP2440-CR & 2017AP2441-CR
cases must have "continued running 'as if there had been no
judgment' from the date of sentencing through Harrison's release
from prison [in January 2017]." Under different circumstances, we
have stated that a vacated judgment of conviction "lacks force or
effect" and the act of vacating "places the parties in the position
they occupied before entry of the judgment." Id., ¶39 n.10
(quoting 47 Am. Jur. 2d Judgments § 714).
¶39 As support for his contention, Harrison cited Wis. Stat.
§ 302.113(4), which states in relevant part:
All consecutive sentences . . . shall be computed as one
continuous sentence. The person shall serve any term of
extended supervision after serving all terms of
confinement in prison.
Harrison did not explain why this statute, which directs that
consecutive sentences be computed as one continuous sentence, has
any impact on whether he should receive credit toward concurrent
sentences in the 2007 and 2008 cases.
¶40 Lastly, he claimed case law:
[R]ecognize[s] the distinction between a rule, on the
one hand, that would allow a defendant to "bank" time
served on vacated or voided sentences to be used like a
"line of credit" against unrelated later sentences and
a rule, on the other hand, that requires credit be
granted when the service of a defendant's lawfully
imposed sentence is delayed based on the service of a
subsequently vacated sentence.
Notably, the primary case Harrison cited for this contention,
Tucker v. Peyton, granted advancement and not sentence credit.
¶41 And finally, before us, Harrison concedes that he has no
basis for sentence credit on the 2007 and 2008 cases because he
has been resentenced for the 2011 case. Rather, he implies that
15
Nos. 2017AP2440-CR & 2017AP2441-CR
he is entitled to sentence credit on the resentencing for the 2011
case from February 2014 when Harrison's confinement for the 2007
and 2008 cases ended until January 2017 when the sentence in the
2011 case was vacated. However, he does not ask us to employ Wis.
Stat. § 973.04 to that purpose.9
b. State's Position
¶42 The State has maintained a consistent position. It
argued in the court of appeals and continues to argue here that
the course of conduct for which a prisoner was confined must be
"factually connected" to the course of conduct for which the
"sentence was imposed" in order to receive credit. From February
2014, when the confinement for the 2007 and 2008 cases concluded
until January 2015 when the conviction for the 2010 was vacated,
the 2010 case was the factual basis for his incarceration. From
January 2015 to January 2017, the 2011 case was the factual basis
for Harrison's confinement. The State cites State v. Johnson,
2009 WI 57, ¶3, 318 Wis. 2d 21, 767 N.W.2d 207, to support its
position.
¶43 Johnson explains that to give sentencing credit, a court
must determine: "(1) whether the offender was 'in custody' within
the meaning of Wis. Stat. § 973.155(1)(a); and (2) whether all or
part of the 'custody' for which sentence credit is sought was 'in
connection with the course of conduct for which sentence was
imposed.'" Id., ¶27. Johnson also instructs that "[n]either the
statute nor the case law . . . justifies crediting a defendant's
9 The 2011 case is not before us on this review.
16
Nos. 2017AP2440-CR & 2017AP2441-CR
sentence for time spent in presentence custody that is not related
to the matter for which sentence is imposed." Id., ¶32.
Furthermore, "a mere procedural connection will not suffice" for
the requisite factual connection. Id., ¶33.
c. Harrison's Sentence Credit
¶44 We are persuaded by the State's arguments. The language
of Wis. Stat. § 973.155(1)(a) that is relevant to Harrison's claim
is plain.10 Our decision in Johnson clearly explained that a
factual connection between the sentence imposed and the custody
that preceded it is required for sentence credit. We said, a
"factual connection fulfills the statutory requirement for
sentence credit, and . . . a procedural or other tangential
connection will not suffice." Id., ¶33 (quoting State v. Floyd,
2000 WI 14, ¶17, 232 Wis. 2d 767, 606 N.W.2d 155).
¶45 Furthermore, when a sentence is vacated and a
resentencing occurs, Wis. Stat. § 973.155(1)(a) must operate in
concert with Wis. Stat. § 973.04. At times, both statutes must be
considered for a particular period of custody. Lamar, 334 Wis. 2d
536, ¶32, n.7. Harrison's earlier interpretation that requested
sentence credit for 2007 and 2008 cases would have precluded
application of § 973.04 to the resentencing that occurred in the
2011 case. However, there is no reason to believe that the
We interpreted the term, "custody" in Wis. Stat.
10
§ 973.155(1)(a) where conflicting meanings were proposed for
various types of pretrial restrictions. State v. Magnuson, 2000
WI 19, ¶11, 233 Wis. 2d 40, 606 N.W.2d 536. Magnuson concluded
that "custody" occurs, "whenever the offender is subject to an
escape charge for leaving that status." Id., ¶25.
17
Nos. 2017AP2440-CR & 2017AP2441-CR
legislature would have written § 973.155(1)(a) so broadly that it
would have a preclusive effect on the credit that § 973.04 directs.
As we explained in Lamar, "[t]he operative language of § 973.04——
that the defendant shall be credited 'with confinement previously
served'——must be interpreted in light of the nature of the
particular sentences imposed." Id., ¶35. Therefore,
§ 973.155(1)(a) and § 973.04 must be separately analyzed based on
the specific sentences imposed and the conduct that underlies them.
Id. Here, only § 973.155(1)(a) is before us because no sentence
that was vacated and re-imposed for the same crime is at issue,
which § 973.04 requires.
¶46 In addition, Harrison's arguments were not grounded in
the plain meaning of Wis. Stat. § 973.155(1)(a), as the State's
arguments were. Instead, Harrison argued that fairness and equity
required stepping outside of the plain meaning of § 973.155(1)(a).
In a previous case, we rejected the contention that sentence credit
statutes could be read contrary to their plain meaning.
Friedlander, 385 Wis. 2d 633, ¶44 (citing Black v. City of
Milwaukee, 2016 WI 47, ¶30, 369 Wis. 2d 272, 882 N.W.2d 333)
("Courts, however, should be most hesitant to adopt judicially
created remedies when the legislature, the primary policymaker,
has statutorily addressed the topic. Here, we defer to those
policy choices.").
¶47 Furthermore, determining when a result is fair is
subject to debate. In State v. Allison, 99 Wis. 2d 391, 299
N.W.2d 284 (Ct. App. 1980), the court of appeals rejected the sort
of equitable approach Harrison had proposed. The court of appeals
18
Nos. 2017AP2440-CR & 2017AP2441-CR
"[r]ecogniz[ed] Allison's claim for credit would have the
anomalous effect of rewarding the habitual criminal with credit
while the person who does not commit a later crime is not similarly
compensated. Rewarding habitual criminality is clearly against
public policy." Id. at 394.
¶48 Reasonable minds can disagree with regard to Harrison's
position below. However, sentence credit historically has been
the purview of the legislature. See generally Richard A.
Karbarker, Comment, Right to Credit for Time Served and to
Preservation of Original Sentence, 1967 U. Ill. L.F. 180. Sentence
credit is not a concept known to the common law. Indeed,
Karbarker's comment from 1967 provides a telling illustration:
In the typical case, because of a constitutional (or
other) error in the first trial, the defendant wins a
new trial, usually by means of a writ of habeas corpus,
after having served a part of his sentence under the
reversed conviction. Let us assume that defendant's
original sentence was for 10 years and that he has
already served 5. After the second trial, defendant is
sentenced to seven years. In effect, defendant's
sentence has been increased upon his second trial for he
will now have to remain in prison for 12 years instead
of only 10 years. Defendant asks to be given credit on
his new sentence for the five years already served. In
over two-thirds of the states, this request will
probably be denied. . . . Only recently have courts and
legislatures begun to realize the seriousness of this
problem and to formulate rational solutions.
Id. at 180–81.
¶49 And finally, applying credit for time confined to
unrelated terms of extended supervision also ignores that
confinement and extended supervision serve different penological
goals. Extended supervision is to assist convicted defendants'
19
Nos. 2017AP2440-CR & 2017AP2441-CR
rehabilitation as they re-enter society, as well as to protect the
community into which they transition. See State v. Miller, 2005
WI App 114, ¶11, 283 Wis. 2d 465, 701 N.W.2d 47 (concluding that
requiring payment of child support is appropriate in serving "the
dual goals of supervision: rehabilitation of the defendant and
the protection of a state or community interest").
¶50 We conclude Harrison is not entitled sentence credit
pursuant to Wis. Stat. § 973.155(1)(a) on his extended supervision
for the 2007 and 2008 cases.
E. Advancement
¶51 Having rejected the contention that Harrison is entitled
sentence credit, which is statutorily defined, we now consider the
concept of advancement, which the court of appeals employed. Some
jurisdictions, as a matter of common law, might deem Harrison to
have started serving his terms of extended supervision when he
would have but for sentences that were later set aside. We have
not previously addressed this issue.
¶52 The basis for advancement, in most jurisdictions, is the
common law. Tucker, 357 F.2d at 118; Jamison v. Cupp, 555 P.2d
475, 476–77 (Or. App. 1976) ("Although the issue has not generally
been viewed as being of constitutional dimension, the courts have
consistently resolved it on the basis of traditional notions of
fair play which underlie the due process concept and the absence
of any but technical reasons to the contrary."). Contra Gentry v.
State, 464 S.W.2d 848 (Tex. Ct. Crim. App. 1971) (suggesting
advancement is grounded in constitutional law).
20
Nos. 2017AP2440-CR & 2017AP2441-CR
¶53 The Maine Supreme Court said that advancement was
necessary to comply with the "spirit" of Maine's "statutory
requirement that a convict to State Prison serve the full term for
which he was sentenced . . . . Without credit for the time []
served since the imposition of the second sentence although
originally applicable to the erroneous sentence, the convict is
then made to serve more than the full term of the only valid
sentence upon which his incarceration in State Prison may be
legally predicated." Green v. State, 245 A.2d 147, 149–50 (Me.
1968), opinion supplemented by, Green v. State, 247 A.2d 117 (Me.
1968).
1. The History of Advancement
¶54 Placed in historical context, the concept of advancement
seems to be an outgrowth of a concept that existed before
consecutive sentencing: that a judgment not stated in certain
terms is void. In Ex parte Roberts, 9 Nev. 44, 45 (1873), "[u]nder
a judgment of conviction for prison-breaking, the petitioner was
on the 11th day of March, 1872, sentenced to confinement in the
State prison for the period of one year, to commence upon the
expiration of a term of imprisonment which he was then undergoing
for robbery." The robbery conviction was vacated. Id. at 45-46.
The petitioner sought a writ of habeas corpus, arguing "the
judgment of the 11th of March, 1872, is void for uncertainty, since
it depends upon an impossible condition, or that the sentence
thereunder commenced running upon its rendition, and has now
expired by limitation." Id. at 46. The State argued that the
sentence for prison-breaking commenced once the judgment in the
21
Nos. 2017AP2440-CR & 2017AP2441-CR
robbery case was vacated. Id. Without citing any authority, the
Nevada Supreme Court concluded that "[e]ither the judgment of the
11th of March commenced to run upon its rendition, or it is void
for uncertainty, and in neither case is the warden of the State
prison entitled to the custody of the prisoner." Id.
¶55 A lower court in Ohio reasoned similarly in 1885. Ex
parte Jordan, 5 Ohio Dec. 397 (Probate Ct. 1885). Counsel for a
prisoner argued that the prisoner must have started serving his
second sentence at the moment the act criminalizing his conduct
for his first sentence was declared unconstitutional. The court
explained:
I cannot agree with the counsel for the prisoner that
the second sentence took effect at the time the act was
declared unconstitutional, namely, in May, 1885.
I am of the opinion that the act under which the prisoner
was tried, convicted and sentenced for having burglar's
tools in his possession having been declared
unconstitutional, affected the proceedings from the
beginning.
An unconstitutional law is void, and is no law. An
offense created by it is not a crime. A conviction under
it is not merely erroneous, but is illegal and absolutely
void, and can not be a legal cause of imprisonment.
If there was no law, and no conviction could have been
had under it, it must follow that the conviction and
sentence were illegal and void on the [date the first
sentence was imposed]. If that be true, it must follow
that he was not serving his term on the first sentence
at any time, since there was no law, no trial, no
sentence, no term to serve. The second sentence began,
then, [on that day], if it began at all, and under the
rules he has worked out his fine and costs under such
sentence.
22
Nos. 2017AP2440-CR & 2017AP2441-CR
But were I mistaken in this conclusion, I would further
hold that the second sentence, which provides that the
same shall take effect after the expiration of a previous
sentence, is void for uncertainty.
Id. at 398.
¶56 In the mid-1800s, there was still debate about the
propriety of consecutive sentences. Particularly, some argued
that, because the commencement date of the second or subsequent
sentence was uncertain at the time the sentence was imposed, such
sentences should be void for uncertainty.
¶57 As courts started to reject this argument, some also
started to reject advancement. See Kite v. Commonwealth, 52 Mass.
581, 585 (1846), overruled by Brown v. Comm'r of Corrs., 147 N.E.2d
782 (Mass. 1958) ("Though uncertain at the time, depending upon a
possible contingency that the imprisonment on the former sentence
will be remitted or shortened, it will be made certain by the
event. If the previous sentence is shortened by a reversal of the
judgment, or a pardon, it then expires; and then, by its terms,
the sentence in question takes effect, as if the previous one had
expired by lapse of time."). Today, no one would argue that
consecutive sentences are void merely because the first sentence
could be shortened and, therefore, the commencement date of the
second is uncertain.
¶58 Nevertheless, advancement, once seemingly tied to this
uncertainty, became untethered and developed into an independent
concept. Indeed, the United States Supreme Court utilized
advancement in 1894. Blitz v. United States, 153 U.S. 308, 318
(1894) (concluding that upon reversal of the first count, the
23
Nos. 2017AP2440-CR & 2017AP2441-CR
sentence on the remaining count commenced on the date fixed for
imprisonment on the first count). Its decision has served as the
primary authority for advancement in the federal courts. See
United States v. Tuffanelli, 138 F.2d 981, 984 (7th Cir. 1943).
2. Approaches Toward Advancement
¶59 Other jurisdictions' starting point when deciding
whether to adopt advancement has been to determine whether a
reversed judgment of conviction is "void" from its inception or
"voidable":
[T]he question [of] whether the invalidated earlier
sentence was void or merely voidable may be important to
the determination of the effect of the invalidation upon
a later, consecutive sentence. Some courts have
manifested an unwillingness to permit time served under
an invalidated sentence which was merely voidable to be
credited against the term of a valid consecutive
sentence. The underlying idea seems to be that a
voidable sentence is, until invalidated, valid in all
respects, and time served in prison under such a sentence
cannot, in logic, be held to be referable to any other
sentence. Conversely, some courts, in holding that upon
invalidation of an earlier separately imposed
consecutive sentence the later sentence runs from the
date that it was imposed, have taken pains to point out
that the earlier sentence was absolutely void . . . .
Effect of Invalidation of Sentence Upon Separate Sentence Which
Runs Consecutively, 68 A.L.R.2d 712 (1959).11 When courts have
concluded that a first sentence is voidable, they have disallowed
11The American Law Reports has been a commonly cited
authority by those courts that have authorized advancement. E.g.,
State v. Berumen II, slip op. No. A-10596, 2011 WL 3631134 (Alaska
App.); Jackson v. Jones, 327 S.E.2d 206 (Ga. 1985); State v. Owen,
410 P.2d 698 (Ariz. App. 1966).
24
Nos. 2017AP2440-CR & 2017AP2441-CR
advancement. See Kite, 52 Mass. at 585; see also Smith v. Lovell,
77 A.2d 575 (Me. 1950), overruled by Green, 245 A.2d 147.
¶60 When they have concluded a first sentence is void, the
next question has been whether fairness requires advancing the
commencement date of a second or subsequent sentence. Burton C.
Agata, Time Served Under a Reversed Sentence or Conviction — A
Proposal and a Basis for Decision, 25 Mont. L. Rev. 1, 50 (1963)
(explaining courts "rely[] on a sense of fairness, [to] allow[]
credit for the time served under the reversed sentence by reckoning
the commencement of the second sentence from the time it was
imposed"). At least one court has skipped the traditional first
step of deciding whether a judgment is void or voidable and decided
to adopt advancement based on fairness. Green, 245 A.2d at 149
("Fair play requires that where a prior sentence is set aside for
error, whether the sentence be void or voidable, the second
sentence which would otherwise commence at the termination of the
previous sentence must be moved forward and made to run as of the
first day of actual incarceration of the prisoner after its
imposition.").
¶61 The argument for why advancement is fair seems to be
that "[t]he defendant will serve a period with respect to the
second offense, commencing and terminating at the same time as if
there had been no erroneous sentence in existence when it was
imposed." Agata, Time Served Under a Reversed Sentence or
Conviction, at 48–49; see also State ex rel. Willis v. Brantley,
285 N.E.2d 571, 573 (Ill. App. 1972) ("Where, as here, appellant's
prior conviction was reversed and the state has declined to retry
25
Nos. 2017AP2440-CR & 2017AP2441-CR
the case, and where appellant could have been serving a validly
imposed second sentence but for the service of the invalid
sentence, justice requires that the second sentence be deemed to
run from the date of its imposition."). Some courts have said
advancement is the "humane" approach. E.g., Potter v. State, 139
S.E.2d 4, 5 (N.C. 1964); Brown, 147 N.E.2d at 784; see also Stidham
v. Sowers, 255 So. 2d 740, 744 (La. 1971) ("We agree with the trial
judge that the principles of justice and fairness demand that
Stidham's sentence for Simple Escape commence on the date of its
imposition . . . and not on the date his sentence for Armed Robbery
was declared invalid.").
3. A Policy Choice
¶62 We do not adopt advancement for several reasons.
Primarily, we conclude that adopting advancement is a public policy
decision better left to the legislature. As explained above, we
have previously stated that we are bound by the plain meaning of
sentence credit statutes and to some degree applying advancement
would conflict with the statutory choices of the legislature.12
¶63 Second, and relatedly, we again note that what is "fair"
is the subject of much debate. In Allison, the court of appeals
concluded that advancement would reward habitual offenders.
Allison, 99 Wis. 2d at 394. Others have been wrongfully imprisoned
12To some extent, it could be argued that the legislature has
already decided what to do with the advancement concept by its
enactment of Wis. Stat. § 973.04. Section 973.04 directs how and
when sentence credit is allocated for confinement previously
served on a sentence that is later vacated and a new sentence
imposed for the same crime.
26
Nos. 2017AP2440-CR & 2017AP2441-CR
but only those who were repeat offenders and sentenced to
consecutive sentences are able to benefit from advancement. Those
wrongfully imprisoned for a single offense have no similar
recourse.
¶64 Furthermore, those serving a single sentence are not
going to be placed "in the position they occupied before entry of
the judgment" merely because a court declares the judgment void.
Lamar, 334 Wis. 2d 536, ¶39 n.10. These people will have lost
months, maybe years, of their lives and nothing the court does
will fix that. Other courts seem to agree that it would be
"inauspicious social policy" to give those serving a single
sentence a "line of credit" against sentences for future crimes.
See State v. Berumen II, slip op. No. A-10596, 2011 WL 3631134 *2
(Alaska App.) (Mannheimer, J., dissenting) (citing Marker v.
State, 829 P.2d 1191, 1195 (Alaska App. 1992)). "[I]f we allowed
defendants to 'bank' the time they served in prison on any sentence
that was subsequently overturned, we would give these defendants
'a sense of immunity' and a perverse incentive to engage in future
criminal conduct." Berumen II, 2011 WL *2 (Mannheimer, J.,
dissenting) (quoting Marker, 829 P.2d at 1195); see also Bryant v.
Warden, Metro. Corr. Ctr. of N.Y.C., 776 F.2d 394, 396 (2d Cir.
1985) (explaining that time served on criminal sentences should
not be banked thereby giving defendants a "line of credit" to be
applied against future sentences).
¶65 Accordingly, if Wisconsin is to adopt advancement as a
sentencing adjunct, it is a task better left to the legislature.
III. CONCLUSION
27
Nos. 2017AP2440-CR & 2017AP2441-CR
¶66 We agree with the court of appeals that Harrison is not
entitled sentence credit. Sentence credit is governed by statute,
Wis. Stat. § 973.155(1)(a). Harrison is not entitled to sentence
credit under § 973.155(1)(a) because the days he spent in custody
were not in connection with the course of conduct for which
sentence was imposed. He also is not entitled to sentence credit
pursuant to Wis. Stat. § 973.04 because sentences for the 2007 and
2008 crimes were not vacated and re-imposed for the same crimes
and the requested credit did not arise from vacated sentences for
those crimes. Furthermore, we conclude that the court of appeals
erred by advancing the commencement of Harrison's terms of extended
supervision for the 2007 and 2008 cases. Whether to employ
advancement is a public policy decision better left to the
legislature. Accordingly, we reverse the court of appeals in
regard to advancement.
By the Court.—The decision of the court of appeals is
reversed.
28
Nos. 2017AP2440-CR & 2017AP2441-CR.rfd
¶67 REBECCA FRANK DALLET, J. (concurring). In the period
of time between this court granting review and hearing oral
argument, the factual and legal support for Richard H. Harrison
Jr.'s claim disappeared. Accordingly, Harrison asks us to
summarily dispose of this appeal, pursuant to Wis. Stat.
§ 809.21(1) (2017-18).1 The majority rejects his request and
instead issues an advisory opinion concerning what are now
hypothetical facts. The majority erroneously delves into, and
rejects, the concept of advancement, despite the fact that no party
is asking this court to adopt that concept. For the following
reasons, I respectfully concur.
¶68 The procedural history of this appeal and the interplay
between Harrison's 2007, 2008, 2010, and 2011 criminal convictions
illustrates why this case should be summarily reversed. Harrison
was sentenced in his 2007 and 2008 cases to three years of initial
confinement and three years of extended supervision to be served
concurrently. Shortly thereafter, in his 2010 case, Harrison was
sentenced to 13 years of initial confinement followed by seven
years of extended supervision, to run consecutively to any other
sentence. Finally, in his 2011 case, Harrison was sentenced to 30
years of initial confinement, followed by ten years of extended
supervision, to run consecutively to any other sentence.
1 Wisconsin Stat. § 809.21(1) provides: "The court upon its
own motion or upon the motion of a party may dispose of an appeal
summarily."
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
1
Nos. 2017AP2440-CR & 2017AP2441-CR.rfd
¶69 Harrison finished serving the initial confinement
portions of his 2007 and 2008 sentences in February 2014. Harrison
then began serving the initial confinement portion of his 2010
sentence, as he was required to serve that time before he could
begin serving the extended supervision portion of his 2007 and
2008 sentences.
¶70 In January of 2015, this court set aside Harrison's 2010
conviction because his statutory right to judicial substitution
had been violated. State v. Harrison, 2015 WI 5, 360 Wis. 2d 246,
858 N.W.2d 372. On June 23, 2015, the circuit court dismissed the
case. Upon dismissal, Harrison began serving the initial
confinement portion of his 2011 sentence.
¶71 In October 2016 the Federal District Court for the
Western District of Wisconsin granted Harrison's writ of habeas
corpus challenging his 2011 conviction on the grounds of
ineffective assistance of counsel. In early 2017 the circuit court
entered an order vacating Harrison's conviction and sentence in
the 2011 case and subsequently set a new trial date.
¶72 In August 2017 Harrison moved the circuit court for
sentence credit against the extended supervision portion of his
2007 and 2008 cases under Wis. Stat. § 973.155(1)(a).2 Harrison
asserted that he was entitled to credit for the time period from
February 2014 until January 2017 because his confinement during
that period was not pursuant to a valid sentence. In November
2 Wisconsin Stat. § 973.155(1)(a) provides: "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."
2
Nos. 2017AP2440-CR & 2017AP2441-CR.rfd
2017 the circuit court awarded Harrison sentence credit of roughly
three years against the extended supervision portion of his 2007
and 2008 sentences.
¶73 In March 2019 the court of appeals reversed the circuit
court order, determining that sentence credit was improper under
Wis. Stat. § 973.155(1)(a) because the "courses of conduct were
different between the cases with the ultimately vacated
convictions and the cases with the never vacated convictions."
State v. Harrison, Nos. 2017AP2440-CR & 2017AP2441-CR, unpublished
slip op., ¶2 (Wis. Ct. App. Mar. 21, 2019). However, the court of
appeals remanded the case with direction that the Department of
Corrections (DOC) "advance the commencement of Harrison's extended
supervision periods in the 2007 and 2008 cases, so that these
extended supervision periods commence on the dates on which
Harrison completed serving the initial confinement portions of his
sentences in the 2007 and 2008 cases." Id., ¶26.
¶74 The State filed a petition for review on April 22, 2019,
challenging the court of appeals' adoption of the advancement
concept. Harrison filed a cross-petition for review on May 22,
2019, asserting that he was entitled to sentence credit against
the 2007 and 2008 cases. On August 14, 2019, we accepted both
petitions for review.
¶75 At the time this court accepted the petitions for review,
Harrison had already pled no contest in the 2011 case, but had not
yet been resentenced. Just five days later, on August 19, 2019,
the circuit court resentenced Harrison to six years of initial
confinement followed by two years of extended supervision and
3
Nos. 2017AP2440-CR & 2017AP2441-CR.rfd
ordered the DOC to calculate Harrison's sentence credit pursuant
to Wis. Stat. § 973.04.3
¶76 In September 2019 the State moved the court to supplement
the record with eight documents, including the transcript from
Harrison's August 19, 2019 resentencing hearing. In response,
Harrison filed a motion asking the court to summarily reverse the
court of appeals' decision and to remand this case to the circuit
court to enter an order denying Harrison's motion for sentence
credit. In his motion, Harrison conceded that the underlying basis
for his sentence credit claim no longer existed because a new
sentence had been imposed in his 2011 case. We granted the motion
to supplement the record, denied the motion for summary reversal,
and asked the parties to brief the following relevant issue:
Whether this court may or should summarily reverse or
vacate a court of appeals' decision due to a change in
position by one party or due to the fact that both
parties now appear to have a similar position as to a
legal issue addressed in the court of appeals' decision.4
3 Wisconsin Stat. § 973.04 provides: "When a sentence is
vacated and a new sentence is imposed upon the defendant for the
same crime, the department shall credit the defendant with
confinement previously served."
4 We also asked the parties to brief a second issue:
Whether the defendant-respondent is judicially estopped
from now taking the position that the court of appeals'
decision should be reversed and the cases should be
remanded to the circuit court with directions to deny
his motion for sentence credit, including whether the
fact of the intervening sentencing in Ashland County
Case No. 2011CF82 renders the doctrine of judicial
estoppel inapplicable.
4
Nos. 2017AP2440-CR & 2017AP2441-CR.rfd
Supreme Court Order, October 15, 2019. Through briefing, and at
oral argument, Harrison effectively explained why this court
should summarily reverse the court of appeals' decision.
¶77 The undisputed bottom line is this: everyone agrees
that Harrison is not entitled to the sentence credit he received
from the circuit court or the relief ordered by the court of
appeals. Harrison admits that since he was resentenced in the
2011 case, he can no longer meritoriously assert that the roughly
three years he spent in prison from February 2014-January 2017 was
not connected to a lawfully imposed sentence. In other words, now
that the time was clearly connected to his 2011 case, in which he
was resentenced, there is no basis to argue for credit against his
2007 and 2008 cases. The majority chooses to overlook the 2011
resentencing and the fact that, upon resentencing, the entire
foundational basis for the court of appeals' decision regarding
the concept of advancement has disappeared.
¶78 Since the advancement remedy ordered by the court of
appeals was based on the then-existing fact that no new sentence
had been imposed in the 2011 case,5 any decision from this court
Supreme Court Order, October 15, 2019. I agree with the majority
that Harrison is not estopped from making sentence credit or
advancement concessions. See majority op., ¶31.
5 The court of appeals observed in its decision:
First, in the event that Harrison is sentenced in a
revived 2011 case, the normal rules regarding the
service of confinement time before the service of
extended supervision time should apply. Second,
Harrison should be credited with all sentence credit in
the 2011 case to which he is entitled under Wis. Stat.
§ 973.155.
5
Nos. 2017AP2440-CR & 2017AP2441-CR.rfd
regarding advancement is merely advisory. Tammi v. Porsche Cars
N. Am., Inc., 2009 WI 83, ¶3, 320 Wis. 2d 45, 768 N.W.2d 783
("Courts will not render merely advisory opinions.") (quoted
source omitted). Rather than render an advisory opinion, I would
summarily reverse the court of appeals and remand the case to the
circuit court to enter an order denying Harrison's motion for
sentence credit. It is this court's "job to adjudicate the dispute
in front of us." State v. Steffes, 2013 WI 53, ¶27, 347
Wis. 2d 683, 832 N.W.2d 101; see State v. Grandberry, 2018 WI 29,
¶31 n.20, 380 Wis. 2d 541, 910 N.W.2d 214 (rejecting the party's
invitation to "make broad pronouncements based on hypothetical
facts"). There is no longer a dispute in front of us to adjudicate.
¶79 For the foregoing reasons, I would summarily reverse the
court of appeals and remand the case to the circuit court to enter
an order denying Harrison's motion for sentence credit.
¶80 I am authorized to state that Justice ANN WALSH BRADLEY
joins this concurrence.
State v. Harrison, Nos. 2017AP2440-CR & 2017AP2441-CR, unpublished
slip op., ¶10 n.2, (Wis. Ct. App. Mar. 21, 2019).
6
Nos. 2017AP2440-CR & 2017AP2441-CR.rfd
1