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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 96-0729-CR
STATE
OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK SEVELIN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Polk County: ROBERT H. RASMUSSEN, Judge.
Affirmed in part; reversed in part and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Mark Sevelin appeals a conviction for
misdemeanor criminal damage to property, contrary to § 943.01(1), Stats., 1993-94, and a postconviction
order denying his motion for sentence credit for eighty-two days he spent at
substance abuse treatment centers. Sevelin argues that (1) he cannot be
convicted of criminal damage to property of his own marital home because the
home is not "property of another," and (2) the trial court should
have credited the time he spent at the treatment center against his jail sentence
because he was in "custody" at the treatment center. See § 973.155(1)(a), Stats. We conclude that (1) Sevelin can be
convicted of criminally damaging his own marital home because his wife also had
an ownership interest in the home and (2) Sevelin was in constructive custody
of the Polk County sheriff while in the treatment center. Therefore, the judgment of conviction is
affirmed, but the postconviction order is reversed.
In February 1994,
Sevelin arrived home intoxicated, threatened his family with a two-foot knife
and damaged several rooms in his marital home.
When police arrived, Sevelin became verbally abusive and struck an
officer.
The police arrested
Sevelin, and he was held in jail under a $5,000 cash bond. Sevelin was charged with: (1) battery to a law enforcement officer, a
felony, contrary to § 940.20(2), Stats.,
(2) obstructing an officer, a misdemeanor, contrary to § 946.41(1), Stats., (3) disorderly conduct, a
misdemeanor, contrary to § 947.01, Stats.,
and (4) criminal damage to property, a misdemeanor, contrary to § 943.01, Stats.
Sevelin remained in jail
until a later bond hearing. At that
hearing, the circuit court modified Sevelin's bond and granted him a
"furlough" to attend an inpatient treatment facility. The terms of the modified bond required that
Sevelin sign an authorization so that the court could obtain information from
the facility about his progress and whether he had left the clinic. The court warned Sevelin that if he left the
institution for any reason, he would have to return to jail immediately. Sevelin initially stayed at an inpatient
treatment facility resembling a hospital, and was transferred to a halfway
house for substance abusers. Sevelin
does not claim he was physically restrained at either facility in any manner. He remained in the facilities for a total of
eighty-two days. After completion of
the inpatient treatment programs, Sevelin's cash bond was amended to a
signature bond, and the circuit court ordered him to comply with an after-care
program.
Sevelin was convicted of
all four counts charged. The trial
court sentenced Sevelin to four years in the intensive sanctions program, with
the first year to be spent in prison for the felony charge of battery to a law
enforcement officer. The trial court
also sentenced Sevelin to a total of 150 days in jail for the three misdemeanor
charges. During the sentencing hearing,
the trial court credited Sevelin for the days he spent in jail prior to
sentencing. However, the court did not
grant Sevelin's postconviction motion for credit for the days he spent at the
inpatient rehabilitation centers.
First, Sevelin argues
that the trial court erred by denying his motion to dismiss his criminal damage
to property charge. One of the elements
the State must prove to sustain a conviction is that the property damaged was
the "property of another."
Section 943.01(1), Stats.;
Wis J I—Criminal 1400. Sevelin was convicted of damaging his
marital home. Although the precise
ownership status of the home is unclear from the record, Sevelin and the State
agree that both Sevelin and his wife have an ownership interest in the
home. Sevelin argues that he cannot be
convicted of damaging property in which he has an ownership interest.
Statutory interpretation
is a question of law we review de novo.
State ex rel. Frederick v. McCaughtry, 173 Wis.2d 222,
225, 496 N.W.2d 177, 179 (Ct. App. 1992).
Sevelin does not acknowledge or discuss § 939.22(28), Stats.
That section defines "property of another" for purposes of
chs. 939 to 948 and 951, Stats.,
as "property in which a person other than the actor has a legal interest
which the actor has no right to defeat or impair, even though the actor may
also have a legal interest in the property." This section unambiguously means that a person can be convicted
of criminal damage to property even though he or she has an ownership interest
if someone else also has an ownership interest.
Next, Sevelin argues
that the trial court should have given him credit toward his jail sentence for
the time he spent at inpatient treatment facilities. Section 973.155(1)(a), Stats.,
entitles defendants to credit toward service of their sentence "for all
days spent in custody in connection with the course of conduct for which
sentence was imposed." The State
argues that Sevelin was not "in custody" during his stay at the
rehabilitation centers. Whether the
facts establish that Sevelin was in custody is a matter of statutory
construction that we review de novo. See
State v. Pettis, 149 Wis.2d 207, 209, 441 N.W.2d 247, 248 (Ct.
App. 1989).
In State v.
Gilbert, 115 Wis.2d 371, 378-79, 340 N.W.2d 511, 515 (1983), our
supreme court determined that we should use the escape statute,
§ 946.42(1)(a), Stats., to
determine whether a person is in custody for sentence credit purposes. Section 946.42(1)(a)
provides in part:
"Custody"
includes without limitation actual custody of an institution, including a
secured juvenile correctional facility, a secure detention facility, as defined
under s. 48.02(16), or a juvenile portion of a county jail, or of a peace
officer or institution guard and constructive custody of prisoners and
juveniles subject to an order under s. 48.34(4m) temporarily outside the
institution whether for the purpose of work, school, medical care, a
leave granted under s. 303.068, a temporary leave or furlough granted to a
juvenile or otherwise. (Emphasis
added.)
Sevelin argues that he
was in constructive custody of the Polk County jail during his time at the
treatment center because he was "temporarily outside the [county jail] for
the purpose of ... medical care ...."
Section 946.42(1)(a), Stats. We agree.
There is no dispute that
Sevelin was only outside the jail temporarily.
The circuit court told Sevelin, "[i]f you leave [the treatment
center] for any reason even if it is upon successful completion of the program,
you report back to jail ...."
The
State argues that Sevelin's treatment at the rehabilitation centers does not
constitute "medical care."
We must construe § 946.42(1)(a), Stats., to determine the meaning of the
phrase "medical care." When
construing a statute, our first inquiry is whether the words of the statute
have an unambiguous meaning. Bindrim
v. B. & J. Ins. Agency, 190 Wis.2d 525, 645, 527 N.W.2d
320, 434 (1995). If so, we do not
resort to rules of judicial construction; rather, we give the words their
obvious and intended meaning. Id.
The unambiguous meaning
of "medical care" includes treatment of all diseases. Alcoholism is a disease. DeLaMatter v. DeLaMatter, 151
Wis.2d 576, 586, 445 N.W.2d 676, 681 (Ct. App. 1989). We conclude that "medical care," as used in
§ 946.42(1)(a), Stats.,
unambiguously includes treatment at drug and alcohol rehabilitation centers. Because Sevelin was temporarily outside the
Polk County jail for the purpose of medical care, the sheriff had constructive
custody of him.
The State cites State
v. Swadley, 190 Wis.2d 139, 526 N.W.2d 778 (Ct. App. 1994); Pettis;
State v. Cobb, 135 Wis.2d 181, 400 N.W.2d 9 (Ct. App. 1986), to
establish that Sevelin was not in actual custody. We need not address this argument because our holding with regard
to constructive custody is dispositive.
See Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d
559, 562 (Ct. App. 1983). We note,
though, that these cases are distinguishable with regard to our discussion
concerning whether Sevelin was in constructive custody. In Pettis and Swadley,
the defendants spent time in home detention, Pettis, 149 Wis.2d
at 208, 441 N.W.2d at 248; Swadley, 190 Wis.2d at 140, 526 N.W.2d
at 779, and "[h]ome detention is not the constructive custody of prisoners
temporarily outside the institution for the purpose of work, school, medical
care or furlough." Swadley,
190 Wis.2d at 143, 526 N.W.2d at 780.
In Cobb, the defendant was not in constructive custody
because he was not "temporarily let outside an institution." Id. at 185 n.3, 400 N.W.2d at
11 n.3.
In sum, we affirm
Sevelin's conviction for criminal damage to property of his marital home
because that property was, in part, the property of another. We conclude, however, that Sevelin is
entitled to sentence credit for the time he spent at an inhouse rehabilitation
center because he was in constructive custody as defined by
§ 946.42(1)(a), Stats.,
during his stay at the center. We
therefore reverse the postconviction order and remand to the trial court to
enter an order crediting Sevelin with an additional eighty-two days toward his
sentence.
By the Court.—Judgment
affirmed; order reversed and cause remanded with directions.
