State Ex Rel. Thorson v. Schwarz

ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Michael J. Thorson, seeks review of an unpublished decision of the court of appeals affirming a circuit court *4order denying sentence credit.1 He argues that he is entitled to sentence credit for time spent at the Wisconsin Resource Center while awaiting evaluation and trial on a petition to commit him as a sexually violent person under Chapter 980 (1999-2000).2 Because we determine that Thorson's detention under Chapter 980 satisfies neither the "in custody" nor "in connection with" requirements of Wis. Stat.§ 973.155, the sentence credit statute, we conclude that he is not entitled to receive the requested credit. Accordingly, we affirm the decision of the court of appeals.

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¶ 2. On November 1, 1991, Thorson was convicted of attempted second-degree sexual assault and false imprisonment. He was sentenced to 13 years in prison, with a mandatory release date of April 4, 2000.

¶ 3. Shortly before his scheduled release, the State commenced an action to commit Thorson as a sexually violent person pursuant to Chapter 980. Thus, instead of being released from custody, Thorson was transferred to the Wisconsin Resource Center (WRC) for further evaluation. He remained there awaiting trial on the Chapter 980 petition.

¶ 4. On September 16, 2000, a jury determined that Thorson was not a proper candidate for a Chapter 980 commitment because his mental disorder did not make it substantially probable that he would commit *5future acts of sexual violence. On September 20, 2000, Thorson was released on parole after being detained at the WRC for 170 days.

¶ 5. While on parole, Thorson made substantial progress in his rehabilitation. In April 2002, however, the Department of Corrections began revocation of parole proceedings, alleging that he had unauthorized contact with a child.

¶ 6. At the revocation hearing, the administrative law judge found that Thorson had violated the rules of his supervision and revoked his parole. Accordingly, he ordered Thorson to be reincarcerated for a period of ten months.

¶ 7. After the revocation, Thorson requested that he be granted 170 days of credit toward his term of reincarceration for time spent at the WRC awaiting his Chapter 980 trial. The administrative law judge denied the request. In doing so, he explained that he was not aware of any law that allowed "custody credit"3 in a criminal case for detention in a civil commitment proceeding.

¶ 8. Thorson subsequently appealed the decision to the Division of Hearings and Appeals (DHA). The DHA administrator sustained the conclusion of the administrative law judge. He reasoned that the commitment proceeding was a separate legal matter and "[t]he fact that the court ordered [Thorson] confined pending *6the outcome of that proceeding [did] not make that custody part of this case or entitle him to sentence credit for that confinement."

¶ 9. On July 23, 2002, Thorson filed a petition for a writ of certiorari, challenging the denial of sentence credit for his time spent at the WRC. The circuit court concluded that "[t]he Chapter 980 proceeding was commenced against Mr. Thorson for a wide variety of reasons, only one of which was his conviction for second-degree sexual assault in 91CF68. The reincar-ceration .. . had its roots in the criminal conviction from 91CF68 and had nothing to do with the Chapter 980 proceeding." Accordingly, the court dismissed the writ on the ground that Thorson's Chapter 980 detention was not "in connection with the course of conduct for which the sentence was imposed."

¶ 10. The court of appeals affirmed the circuit court's order. State ex rel. Thorson v. Schwarz, No. 02-3380, unpublished slip op. (Wis. Ct. App. September 3, 2003). Like the circuit court, the court of appeals held that Thorson's detention "was not in connection with the course of conduct for which his sentences were imposed." Id., ¶ 3. It further concluded that Chapter 980 commitments are "a separate civil matter" and that the evaluation process at the WRC was to determine whether Thorson should be civilly committed.4 Id., ¶ 4.

II

¶ 11. The issue in this case is whether a petitioner, reincarcerated for a parole violation, is entitled *7to claim sentence credit for time spent in detention during the pendency of a Chapter 980 proceeding. Both the circuit court and court of appeals answered in the negative, affirming the decision of the DHA.

¶ 12. Our review of a parole revocation by certio-rari is limited to four inquiries: (1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable, representing its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. Van Ermen v. DHSS, 84 Wis. 2d 57, 63, 267 N.W.2d 17 (1978).

¶ 13. In the present case, our inquiry is focused on whether the DHA acted according to law when it rejected Thorson's claim. Resolution of this inquiry involves the interpretation and application of Wis. Stat.§ 973.155, the sentence credit statute. It presents a question of law subject to independent appellate review. See State v. Tuescher, 226 Wis. 2d 465, 468, 595 N.W.2d 443 (Ct. App. 1999) (citations omitted).

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¶ 14. We begin our discussion with an examination of Wis. Stat.§ 973.155. The statute governs sentence credit and provides in relevant part:

973.155 Sentence credit.
(l)(a) 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. As used in this subsec*8tion, "actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:
1. While the offender is awaiting trial;
2. While the offender is being tried; and
3. While the offender is awaiting imposition of sentence after trial.

¶ 15. Under the language of the statute, two conditions must be met in order for a defendant to receive sentence credit: (1) the defendant must have been "in custody" for the period in question; and (2) the period "in custody" must have been "in connection with the course of conduct for which the sentence was imposed." Wis. Stat.§ 973.155(l)(a). We examine each of these requirements in turn.

A. Custody

¶ 16. The term "custody" is not defined in Wis. Stat.§ 973.155. To fill this void, Wisconsin courts have relied upon the definition set forth in Wis. Stat.§ 946.42(1)(a), the escape statute. See e.g., State v. Magnuson, 2000 WI 19, ¶¶ 13-15, 233 Wis. 2d 40, 606 N.W.2d 536; State v. Gilbert, 115 Wis. 2d 371, 378-79, 340 N.W.2d 511 (1983); State v. Cobb, 135 Wis. 2d 181, 184-85, 400 N.W.2d 9 (Ct. App. 1986).

¶ 17. The definition of custody in Wis. Stat.§ 946.42(l)(a) provides in relevant part:

946.42 Escape. (1) In this section:
(a) "Custody" includes without limitation actual custody of an institution.... It does not include the custody of a probationer, parolee or person on extended *9supervision by the department of corrections or a probation, extended supervision or parole officer or the custody of a person who has been released to aftercare supervision under ch. 938 unless the person is in actual custody or is subject to a confinement order under s. 973.09(4).

¶ 18. Although the above definition is the necessary starting point for determining "custody" for sentence credit purposes, it is by no means the only consideration. This court has made clear that offenders must also be subject to an escape charge in order to be in "custody" for purposes of sentence credit. Magnuson, 233 Wis. 2d 40, ¶¶ 1, 25, 31, 47.

¶ 19. In Magnuson, this court considered whether a person placed on in-home detention with electronic monitoring was in "custody" for sentence credit purposes. Id., ¶ 1. We determined that "an offender's status constitutes custody for sentence credit purposes when the offender is subject to an escape charge for leaving that status." Id. Applying this bright line rule, we concluded that Magnuson's conditions of release did not subject him to an escape charge and therefore did not render him in custody. Id., ¶ 48.

¶ 20. In the present case, both parties agree that Thorson's detention at the WRC satisfies the broad definition of custody under Wis. Stat.§ 946.42. We too subscribe to this conclusion. While parolees are not normally considered to be in custody under the escape statute, Thorson was in actual custody at the WRC. This is supported by the fact that the Department of Health and Family Services (DHFS) is required to administer the WRC "as a correctional institution." Wis. Stat.§ 46.056(1).

¶ 21. Where the parties disagree is whether Thorson was subject to an escape charge had he left the *10WRC without authorization. Thorson contends that absconding from the WRC would have subjected him to escape under Wis. Stat.§ 946.42(3)(a) so as to entitle him to sentence credit under Magnuson. That statute specifies four situations in which the crime of escape can occur: (1) the defendant was under arrest for a crime; (2) the defendant was lawfully charged with a crime; (3) the defendant was lawfully convicted of a crime; or (4) the defendant was sentenced for a crime. State v. Scott, 191 Wis. 2d 146, 150, 528 N.W.2d 46 (Ct. App. 1995). Because Thorson had not yet been fully discharged from his sentence, he maintains that he could have been charged under the escape statute.

¶ 22. The problem with Thorson's argument is its underlying premise. Thorson was not detained at the WRC because of his sentence for attempted second-degree sexual assault and false imprisonment. Rather, he was detained as a result of a separate discretionary decision to seek his commitment under Chapter 980.

¶ 23. Although a sexually violent offense serves as one of the prerequisites for initiating a proceeding under Chapter 980, Wis. Stat.§ 980.02 specifies additional allegations that must accompany the petition in order to initiate an independent proceeding. These include allegations that the person suffers from a mental disorder and that the disorder "creates a substantial probability that he or she will engage in acts of sexual violence." Wis. Stat.§ 980.02(2)(b) and (c).

¶ 24. Beyond the text of the statute, Thorson offers two more reasons why he was subject to an escape charge. First, Thorson notes that DHFS has adopted rules providing for the use of force, including lethal force, to prevent and capture escapees from the WRC. See Wis. Admin. Code §§ HFS 95.04, 95.05 and 95.06 (March 2004). He argues that it would be highly *11anomalous to provide that a person who escapes or attempts to escape from the WRC could be subject to lethal force but could not be charged with escape under Wis. Stat.§ 946.42.

¶ 25. Second, Thorson contends that because the escape statute applies to individuals committed under Chapter 971 (mental disease or mental defect) or Chapter 975 (Sex Crimes Law), none of whom has fully passed through all stages of the criminal process, the escape statute must therefore also apply to individuals detained or committed under Chapter 980, all of whom are still subject to the underlying criminal sentence. Neither of these reasons aids Thorson's argument.

¶ 26. The department's rules on the use of force for individuals detained or committed under Chapter 980 do not create a contradiction with respect to the escape statute. Many of those housed at the WRC have established records of violent behavior. Because of their characteristics, the legislature has approved administrative rules that allow, as a last resort, the use of lethal force to protect the public.

¶ 27. If an anomaly does exist, it rests in Thorson's insistence that this court construe the escape statute expansively. Such a construction would expose himself and other similarly situated defendants to a criminal charge that the statute does not explicitly contemplate.

¶ 28. Thorson's argument concerning commitments under Chapter 971 and Chapter 975 is similarly unpersuasive. Both Chapter 971 and Chapter 975 are specifically referenced in the escape statute. Wis. Stat.§ 946.42(3)(g). Unlike those sections, there is no incorporation of Chapter 980 into Wis. Stat.§ 946.42. *12We refuse to create a prosecutable offense for escape that the clear language of the statute does not authorize.

¶ 29. In sum, while Thorson's status at the WRC satisfied the definition of custody under§ 946.42(l)(a), it did not leave him vulnerable to an escape charge had he absconded from his confinement. Because the State could not prosecute Thorson for escape, his detention at the WRC does not qualify under Magnuson as being in custody for purposes of Wisconsin's sentence credit statute.

B. Connection with the Course of Conduct

¶ 30. We address next the second requirement of the sentence credit statute that the time spent in custody must be "in connection with the course of conduct for which sentence was imposed."5 Wis. Stat.§ 973.155(l)(a). The administrative law judge, the DHA, the circuit court, and the court of appeals all held that if Thorson were in custody, it was not "in connection with" the offense for which he was sentenced because a Chapter 980 proceeding is a separate civil matter.

¶ 31. The phrase "course of conduct" was explicitly construed by the court of appeals in Tuescher. 226 Wis. 2d at 465. There, the court considered two possible interpretations of the phrase. One was that it should be read broadly to mean "criminal episode." Id. at 471. The *13other was that it should be construed narrowly to mean "the specific 'offense or acts' embodied in the charge for which the defendant is being sentenced." Id. Based on the history of the statute and prior case law, the court adopted the narrower interpretation. Id. at 479.

¶ 32. In his brief, Thorson contends that the specific offense that resulted in his conviction and sentence is the same one on which his Chapter 980 petition and custody in the WRC were based. He notes that no new acts were committed that would enable the State to commence a Chapter 980 proceeding. Furthermore, Thorson asserts that his detention at the WRC was factually connected to the conduct for which he was sentenced.

¶ 33. Yet, at oral argument, in response to Schwarz's description of the predicate offenses, Thorson's counsel acknowledged that "there are other predicate acts from sentences long ago discharged." Schwarz noted that in Chapter 980 petitions the conviction for which a defendant is serving operates as a predicate offense, but it is not necessarily the only predicate offense. Chapter 980 petitions often refer to other violations that may be qualifying offenses.6 Schwarz concluded: "In Mr. Thorson's case, he has another qualifying conviction. Unfortunately the petition is not part of the record."

¶ 34. In either instance, Thorson's "in connection with" argument misses the mark. Even assuming that his time at the WRC qualifies as a "sentence," Thorson was not detained for the specific offense that caused his original conviction. Rather, the filing of a Chapter 980 *14petition was the reason for his detention. Chapter 980 commitments are separate civil matters. See State v. Carpenter, 197 Wis. 2d 252, 258, 541 N.W.2d 105 (1995).

¶ 35. It is true that Chapter 980 proceedings are "enveloped on both sides by criminal conduct." State v. Burgess, 2003 WI 71, ¶ 19, 262 Wis. 2d 354, 665 N.W.2d 124. It is also true that such proceedings share many of the same procedural and constitutional features present in criminal prosecutions. State v. Curiel, 227 Wis. 2d 389, 417, 597 N.W.2d 697 (1999). However, these facts do not change the reason why Thorson was at the WRC.

¶ 36. A fundamental problem with Thorson's argument is that conceptually there is no way to distinguish time spent in pretrial detention from time spent following an actual commitment. In addition to the predicate qualifying offenses, the detention time is based on a probable cause determination that the detainee has a mental disorder, which creates a substantial probability that he or she will reoffend. See Wis. Stat.§ 980.02(2) and (3). The commitment time is based upon a beyond a reasonable doubt determination that the detainee has a mental disorder which creates a substantial probability of future reoffense.

¶ 37. If this court were to accept Thorson's "in connection with" argument, all Chapter 980 confinements, whether for detention or for commitment, in effect become an offset to the criminal sentence. His argument integrates Chapter 980 into the underlying criminal proceedings, a result which the legislature specifically attempted to preclude.

¶ 38. In sum, we determine that Thorson's detention at the WRC under Chapter 980 satisfies neither the "in custody" nor "in connection with" requirements of *15Wis. Stat.§ 973.155, the sentence credit statute. We therefore conclude that the DHA acted according to law when it rejected Thorson's requested credit. Accordingly, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

¶ 39. DIANE S. SYKES, J. took no part.

State ex rel. Thorson v. Schwarz, No. 02-3380, unpublished slip op. (Wis. Ct. App. September 3, 2003) (affirming an order of the circuit court for Eau Claire County, William Gabler, Judge).

All statutory references are to the 1999-2000 version of the Wisconsin Statutes unless otherwise noted.

Although the parties, along with the circuit court and court of appeals, describe the issue in this case as one of "sentence credit," the administrative law judge used the term "custody credit" instead. At oral argument, the State Assistant Attorney General explained that because Thorson's proceeding arises out of revocation, "this is not a true sentence credit case. This is actually what the Department of Corrections calls a custody credit case."

The court of appeals also rejected Thorson's due process argument that fundamental fairness required credit for the time he was detained at the WRC. Thorson, unpublished slip op. at ¶ 5. Because Thorson did not pursue this issue on review, we do not address it here.

Additionally, Thorson asserts that his detention at the WRC was "related to an offense for which sentence was imposed." Wis. Stat.§ 973.155(l)(a). Because Thorson did not previously present this argument to the court of appeals, however, we deem it waived.

A qualifying offense for purposes of Chapter 980 means "sexually violent offense" as the term is defined in Wis. Stat.§ 980.01(6).