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Sentence credit denied on concurrent sentence

Credit for time served against a sentence does not need to be awarded against a concurrent sentence imposed at the same time, the Wisconsin Court of Appeals held on Jan. 24.

As a result, defense attorneys need to make sure that, if a client is picked up on a new charge while free on bail, new bail is set on the old charge, if appropriate.

In 2004, Elandis D. Johnson was arrested for a drug offense and entered a guilty plea. He posted bail and was released pending sentencing. In 2005, while still awaiting sentencing, Johnson was arrested for a new drug offense.

50 Days in Custody

Following this arrest, Johnson remained technically “free” on bail in his 2004 case, but spent 50 days in custody before being released on bail in his 2005 case.

Johnson eventually pleaded guilty in his 2005 case, and a joint sentencing was held. He received one year of initial confinement followed by 18 months of extended supervision in his 2004 case. He received a concurrent sentence of one year of initial confinement followed by one year of extended supervision in his 2005 case.

Section 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.”

The circuit court awarded 50 days credit against the sentence in his 2005 case, but not against the sentence in his 2004 case.

After sentencing, Johnson filed a postconviction motion seeking credit for the 50 days in his 2004 case, but the circuit court denied the request, reasoning that the 50 days in custody were not “in connection with” the sentence in that case.

Johnson appealed, but the Court of Appeals affirmed, in a decision by Judge Paul G. Lundsten. Judge Charles P. Dykman dissented.

Only Applied to One Sentence

The majority concluded that the “in connection with the course of conduct” requirement does not necessarily apply to each concurrent sentence imposed at the same time.

Johnson argued that the statute, as interpreted in State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989), and in the Criminal Jury Instruction Committee’s special materials on sentence credit, provides that custody due as credit against one concurrent sentence must be credited against all other concurrent sentences imposed at the same time, regardless whether the custody is “in connection with” all of the concurrent sentences.

However, the court held that the statutory language provides otherwise, concluding, “There is nothing in the statute suggesting an exception to the ‘in connection with’ requirement when credit is due against a concurrent sentence imposed at the same time.”

The court also found Ward distinguishable. In Ward, the circuit court imposed three concurrent sentences at the same time, but granted credit against only one of the sentences. The Court of Appeals reversed, reasoning that applying credit to only one sentence would defeat the concurrent nature of the sentence.

Although it was not clear from the court’s opinion in Ward, the court found, by examining the briefs of the parties, that it was undisputed by the parties that the custody was “in connection with” all three sentences. Thus, Ward is not dispositive on whether the statute requires that custody be credited against a concurrent sentence, even if the custody is not in connection with the sentence.

Credit Each Sentence

The court acknowledged that the Criminal Jury Instructions Committee’s special materials on sentence credit provide: “When concurrent sentences are IMPOSED AT THE SAME TIME or for offenses arising from the same course of conduct, sentence credit is to be determined as a total number of days and is to be credited against each sentence imposed.” Wis JI—Criminal SM34-A, at 8 (emphasis added by court).

Nevertheless, the court concluded that the commentary is not controlling.

The court noted that the examples cited in the commentary all involve custody in connection with a sentence. Thus, the court concluded that the Committee did not intend that credit must be awarded against all concurrent sentences imposed at the same time, even when one sentence fails the “in connection with” requirement.

Accordingly, the court affirmed.

Judge Dykman dissented, concluding that the majority’s interpretation runs afoul of the Equal Protection Clause, and that, even if it did not, Johnson’s counsel was ineffective for failing to take the steps necessary to ensure that Johnson would receive credit for the jail time against both sentences.


The opinion is an important reminder to attorneys that they need to think about sentence credit when a client picks up a new charge while out on bail.

It is not the first such reminder, as is apparent from the majority’s discussion. The court noted a 1997 opinion, State v. Beiersdorf, 208 Wis.2d 492, 561 N.W.2d 749 (Ct.App.1997), which presented a similar issue.

In Beiersdorf, the defendant would have received credit, if his attorney had asked the circuit court to convert a personal recognizance bond to cash bail after he picked up the new charge.

The court wrote, “We note that defense attorneys, in countless cases, do ask trial courts to convert personal recognizance bonds to cash bail when their clients have been arrested and do remain in custody on cash bail on subsequent charges. They do so precisely because they want to assure sentence credit on both offenses. That, however, did not occur in this case.” Beiersdorf, 208 Wis.2d 499, n.2.

In the case at bar, Johnson posted cash bail after his first arrest, while Beiersdorf was released on a PR bond. Nevertheless, his attorney could have made him eligible for sentence credit, had he asked the court to raise the cash bail on the first case, after the second arrest.

In some cases, such as when the defendant expects to quickly post bail on the new charge, it would be unwise to ask the court to convert a PR bond to cash, or raise the amount of cash bail, on an already pending charge. Where the defendant is not likely to be getting out soon, however, attorneys need to consider this issue, and take the necessary steps to ensure that the client receives as much sentence credit as possible.

The case is also noteworthy for the court’s citation to the parties’ briefs in the Ward case to determine the facts.

In a footnote, the court noted that it, and the Supreme Court, “often look to briefing in published opinions to determine facts or arguments made.”

However, the most recent case that the court cites in which either it or the Supreme Court has looked to briefs in published cases to determine the facts is 1994.

It is also noteworthy that the Court of Appeals’ opinions which do so almost invariably decided by District IV in Madison, the only city in the State where such briefs would have been readily accessible to the parties or the court.

Now, briefs in old cases can be accessed on Westlaw, but at a price above and beyond the standard Wisconsin plan subscription.

It is ironic that unpublished Court of Appeals’ opinions may not be cited as
authority — one of the grounds being that it would greatly increase the cost of legal services if they could be cited.

However, briefs from previous published cases can be cited, even though they are not practically accessible to many, and routinely reviewing such briefs would have a much greater impact on the cost of legal services.

In any event, attorneys need to be aware that courts (or at least District IV) may look to briefs in published cases to determine the facts in that case or whether a particular argument was presented to the court. While reading the briefs in every case you cite may be impractical or too expensive, it may be worth it, when the exact facts of a published case are unclear from the opinion itself.

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