Claims Board awards inmates for erroneous jail time (UPDATE)

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The Wisconsin Claims Board has awarded $7,600 to a Lake Mills man who was mistakenly held in prison for more than a year after his sentence was supposed to end.

Robin Gavinski, 52, had been behind bars since 2004. That year, he pleaded no contest to fleeing police in a stolen car, though his sentence was also based on probation time for prior cases. He had asked for $67,465.04.

He was supposed to be released on June 18, 2011. But two employees from the Department of Correction incorrectly calculated one of his sentences as consecutive instead of concurrent, resulting in Gavinski spending an extra 417 days in prison, according to a Claims Board decision. The calculation was done by hand, the decision states, and not on a computer.

The board, in its decision, ordered the DOC to award Gavinski the money to cover lost wages and attorney’s fees. The decision also states that the Claims Board “further encourages the DOC to take steps to correct sentencing miscalculations of this nature.”

The claims were decided at the board’s March 19 meeting, though its written decision was completed Friday and released Tuesday.

Timothy Kiefer, Gavinski’s attorney, said he and his client are happy that the DOC would have to “pay a penalty” and was ordered to double check its calculation methods and possibly use a computer system from now on.

“I am happy that the Claims Board had recognized what we were saying all along,” Kiefer said, “that the DOC made a mistake calculating his sentence.”

Gavinski had also sued the state for the extra time he served, though he later dropped it.

Kiefer said the suit was dropped, in part, because it was filed when they didn’t know the names of the DOC employees who made the error. They found out the name during discovery, he said, but the deadline to change the petition had passed.

The DOC recommended denial of the claim, according to the decision, stating that Gavinksi’s claim was like a tort, to which the DOC is immune because of sovereign immunity. The board disagreed with this assessment.

An email attributed to DOC spokeswoman Joy Staab states that DOC officials respect the Claims Board’s decision. The email also states that the DOC added another check in the process in September 2012 to ensure these errors don’t happen again.

“Such errors are rare, particularly when considering the volume of criminal sentences and the complexity of the various historical sentencing structures,” the email states.

• The board also elected to give $25,000 to Madison resident Joseph Frey, 54, who spent about eight years in prison for the 1991 rape of a the University of Wisconsin-Oshkosh student that he did not commit.

Frey was freed last year after new DNA evidence testing linked the attack to a now deceased man who was convicted of sexually assaulting two sisters in Fond du Lac after the attack on the student. At the time he was convicted, Frey was serving a lengthy prison term for an earlier Brown County sexual assault to which he had pleaded no contest.

The Wisconsin Innocence Project worked on Frey’s case. Director Keith Findley said that he was “pleased and really grateful” for the Claims Board’s decision.

The Winnebago County District Attorney’s Office argued at the Claims Board meeting that “although they are certain that the claimant is not guilty of the crime for which he was convicted, they cannot comfortably state that he is innocent,” according to the board’s decision.

A message left at the DA’s office was not immediately returned.

As of last year, Frey was homeless and didn’t have enough money to pay for medication.

The Claims Board is currently allowed to give out $5,000 a year for each year someone is wrongfully incarcerated, with a cap of $25,000.

That amount – and the situations for which the Claims Board could award compensation – was the subject of multiple bills this year. However, nothing substantial was passed before the session ended last week.

“I have to say, at the same time with this case, I think shows once again how inadequate Wisconsin’s compensation scheme is,” Findley said, adding that there are others like Frey. “That rate of compensation is lowest in the nation of the states that have a compensation statute. It reminds us why it’s really important to revisit that statute and improve that.”

The only bill that did pass in the latest legislative session awarded $90,000 to Robert Stinson, who spent 23 years in prison for a homicide he did not commit. The Claims Board awarded him $25,000 in 2010.

That bill was signed by Gov. Scott Walker on Tuesday.

The Claims Board also chose to deny claims brought by the following:

• Michael Kelly, of Wellton, Ariz., who wanted $5,356 for what he said was an excessive prison sentence for possession of 500 grams or less marijuana. Kelly, 48, was sentenced to two years in April 2003, though the statute he was under was changed in February of that year and newly included a maximum sentence of 1 year, 6 months in prison. The DOC argued that Kelly should not receive compensation since his offense took place in November 2012, before the statute was changed and when the maximum sentence for the crime was three years four months.
• Ceso Sprewell, 37, of Boscobel, who asked for $967.24 for court fines he claimed were improperly deducted from his DOC account. DOC officials, in turn, stated that a judge’s order said that it could deduct the fines from “all inmate moneys, including wages, gifts and so forth,” the decision states.
• Thomas Smith, 56, an inmate at the Columbia Correctional Institution, wanted $300.39 for a television he claimed was improperly destroyed by prison staff. The DOC stated, in turn, that Smith did not properly notify staff of what to do with the TV.