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Defendant credited for time on ES hold

What the court held

Case: State v. Presley, No. 2005AP359-CR.

Issue: When a defendant is given concurrent sentences, one on a new charge, and another after revocation of extended supervision, is he entitled to presentence credit on both sentences?

Holding: Yes. Section 973.155 and the Supreme Court’s holding in State v. Beets require that credit be given on both charges from the date of arrest until the date of sentencing.

Counsel: Martin, Richard D., Milwaukee, for appellant; Donohoo, Robert D., Milwaukee; Weber, Gregory M., Madison; Sanders, Michael C., Madison, for respondent.

A prisoner on extended supervision does not recommence serving his prison sentence until his reconfinement hearing.

The Wisconsin Court of Appeals on April 18 rejected the State’s position — that the sentence begins as soon as the supervision is revoked. Accordingly, the court held that an offender who has had his extended supervision revoked is entitled to sentence credit on any new charges until the trial court resentences him from the available remaining term of extended supervision.

Lee Terrence Presley was arrested on Jan. 2, 2004 for delivery of cocaine. At the time, he was on extended supervision. On March 17, 2004, his extended supervision was revoked.

He later pleaded guilty to the new cocaine charge. He was resentenced on the old charges, and sentenced on the new charge, on the same day — 138 days after the date of arrest.

On the new charge, Presley was sentenced to 30 months of incarceration and 30 months of extended supervision. On the old case, the trial court reconfined him for five months and three days.

The trial court ordered the sentences to be served concurrently and gave Presley sentence credit on the new charge for the time he spent in custody from the date he was arrested to the date his extended supervision was revoked.

Despite the trial court’s pronouncement, the judgment of conviction did not reflect any credit on the new sentence. Presley filed a postconviction motion, initially seeking the credit the trial court granted, and then amending it to request credit for the full 138 days.

Milwaukee County Circuit Court Judge John Siefert determined that Presley was entitled to credit only for the time spent in custody between his arrest and the day his extended supervision was revoked on the new charge.

Presley appealed, and the court of appeals reversed, in a decision by Judge Patricia S. Curley.

The court found sec. 973.155 controls when an offender is entitled to sentence credit. Subsection (1) provides: “(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 subsection, ‘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.

(b) The 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 hold under s. 302.113 (8m), 302.114 (8m), 304.06 (3), or 973.10 (2) placed upon the person for the same course of conduct as that resulting in the new conviction.”

The court concluded that the language of the statute, and the Wisconsin Supreme Court’s decision in State v. Beets, 124 Wis.2d 372, 369 N.W.2d 382 (1985), support allowing sentence credit until the date of the sentencing.

In Beets, the defendant was on probation when he was arrested for burglary. His probation was revoked two months after the arrest, and he was sentenced to prison a month later. He was not sentenced for the new burglary case until seven months after that.

Although the new sentence was imposed concurrent to the earlier sentences, the Supreme Court held that he was not entitled to credit for the seven months between the two sentencings.

The court wrote, “any connection which might have existed between custody for the drug offenses and the burglary was severed when the custody resulting from the probation hold was converted into a revocation and sentence.” Id. at 379.

The court of appeals concluded that, like the offender in Beets, Presley did not begin serving a sentence for the earlier crimes until the trial court resentenced him.

The court also relied on its holding in State v. Swiams, 2004 WI App 217, 277 Wis. 2d 400, 690 N.W.2d 452, that a reconfinement hearing is a sentencing.

The court acknowledged that an extended supervision reconfinement hearing is “a different species of sentencing than occurs at either a probation or parole revocation sentencing hearing,” but found there is “no meaningful reason to treat an extended supervision revocation differently when determining sentence credit.”

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Finally, the court cited sec. 304.072(4), which provides that the sentence of a revoked parolee or person on extended supervision resumes on the day he is received at a correctional institution.

The court wrote, “If the State’s position were to be adopted — that Presley was serving a sentence once the extended supervision was revoked — it would appear to conflict with sec. 304.072(4), which unambiguously states that the sentence begins once the offender is transported and received at a correctional institution, not when the revocation occurs.”

Accordingly, the court held that Presley is entitled to sentence credit on the new charge from the date of his arrest until the day of sentencing on both charges, and reversed.

Judge Ralph Adam Fine wrote a concurrence, to emphasize that a post-revocation reconfinement order is not a “sentencing” for all purposes.

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David Ziemer can be reached by email.

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