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COURT OF APPEALS
DECISION
DATED AND FILED
January 26, 2011
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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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.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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State of Wisconsin
ex rel. Christopher L. Shelton,
Petitioner-Appellant,
v.
Judy P. Smith, Warden, Oshkosh
Correctional Institution,
Respondent-Respondent.
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APPEAL
from an order of the circuit court for Kenosha County: Wilbur
w. warren, III, Judge. Affirmed.
Before Neubauer, P.J., Anderson
and Reilly, JJ.
¶1 REILLY, J. Christopher L. Shelton appeals from an order
of the circuit court denying his petition for a writ of habeas corpus. Shelton
was convicted of two crimes and given consecutive sentences. Shelton
argues that because he was unlawfully detained for 143 days after the mandatory
release date of his first sentence, he should receive credit on his second
sentence as a form of equitable relief.
The State concedes that Shelton
was unlawfully detained after the mandatory release date of his first sentence.
The State argues that because Shelton has finished serving his first sentence his habeas
corpus claim is moot, and that sentence credit is not applicable because Shelton’s custody was not
in connection with the course of conduct for which the second sentence was
imposed. The circuit court denied Shelton’s petition for a
writ of habeas corpus. We affirm.
FACTS
¶2 Shelton
was convicted in 1993 of one count of child enticement and one count of sexual
assault of a child. The circuit court sentenced
Shelton to an eight-year indeterminate prison
term on the child enticement offense and granted 268 days of sentence credit for
the time Shelton
spent in presentence custody. As to the sexual assault sentence, the circuit
court also imposed an eight-year indeterminate prison sentence to be served consecutive
to the child enticement sentence. The
circuit court stayed the sexual assault sentence in favor of ten years of
probation to be served after the child enticement sentence. No presentence credit was granted on the
sexual assault sentence.
¶3 While Shelton’s
mandatory prison release date for the child enticement offense was February 13,
1998, he was not released on that date as the State attempted to commit him
under Wis. Stat. ch. 980. The circuit court dismissed the State’s ch.
980 petition on July 13, 1998.
Shelton
remained in a correctional facility from July 15, 1998, until December 8,
1998—a span of 143 days—as the Department of Corrections (DOC) attempted to find
suitable housing for Shelton
while he served the remainder of his child enticement sentence on parole.
¶4 Shelton
completed his eight-year child enticement sentence on October 8, 2000. Shelton
then commenced serving his ten years of probation for the sexual assault conviction. On May 9, 2005, Shelton’s probation was revoked, and he began
serving the eight-year indeterminate sentence for sexual assault. Shelton’s
mandatory prison release date for the sexual assault charge was December 11,
2009, with a parole discharge date of August 11, 2012.
¶5 On October 8, 2009, Shelton
filed a petition for a writ of habeas corpus in the circuit court. Shelton
requested immediate release from custody on his sexual assault sentence arguing
that he never received sentence credit for the 143 days he was held in prison in
1998 while the State tried to find him housing outside the prison walls.
¶6 The State moved to dismiss on the grounds that credit may not
be transferred to a different sentence and that Shelton therefore failed to state a claim for
relief. Shelton responded by seeking an eighteen-month
equitable reduction in his sexual assault sentence. The circuit court granted the State’s motion
to dismiss, holding that while Shelton should not have been kept in custody for
143 days after his mandatory release date on the child enticement sentence, the
court did not have the authority to transfer credit from one sentence to
another.
STANDARD OF REVIEW
¶7 Whether a defendant is entitled to sentence credit under Wis. Stat. § 973.155 is a question
of law that we review de novo. State v. Lange, 2003 WI App 2, ¶41, 259 Wis. 2d 774, 656 N.W.2d 480.
DISCUSSION
Shelton’s
Habeas Corpus Claim is Moot.
¶8 We
begin by discussing the remedy Shelton
failed to utilize—filing a writ of habeas corpus at the time he was unlawfully
detained. Habeas corpus proceedings
represent “an attack by a person in custody upon the legality of that custody,
and that the traditional function of the writ is to secure release from illegal
custody.” Preiser v. Rodriguez, 411
U.S.
475, 484 (1973).
¶9 In State
ex rel. Olson v. Litscher, 2000 WI App 61, ¶1, 233 Wis. 2d 685, 608
N.W.2d 425, this court found that the State had no authority to hold an inmate
beyond his mandatory release date. Olson
was in prison for sexual assault, and just as in Shelton’s case, when Olson reached his
mandatory release date the State claimed they were unable to locate a residence
for him. Id., ¶2. The State therefore kept Olson in custody. Id. This court held that a prisoner who reaches
his mandatory release date must be released regardless of whether a residence
has been found for him. Id., ¶5. As we have stated before, a prisoner has a constitutional
liberty interest in his mandatory release date.
See Santiago v.
Ware, 205 Wis.
2d 295, 317, 556 N.W.2d 356 (Ct. App. 1996).
¶10 Shelton is currently on
parole for his sexual assault offense. Shelton makes no claim
that his current sentence is constitutionally or statutorily infirm. Shelton
never sought habeas corpus relief when he was unlawfully held for 143 days
during his child enticement sentence. Only
now—over ten years later and after his probation was revoked in 2005—does he
seek equitable relief in the form of applying credit from the 143 days he spent
in custody after his mandatory release date on the child enticement sentence to
the remaining parole component of his sexual assault sentence. Because Shelton
failed to challenge the extension of his mandatory release date at the time he
was unlawfully detained, he is now without a remedy as his child enticement
sentence was discharged.
The 143 Days that Shelton Spent in Custody
were not in Connection with his Sexual Assault Sentence.
¶11 To be eligible for sentence credit in Wisconsin, a defendant’s presentence custody
must be “in connection with the course of conduct for which sentence was
imposed.” Wis. Stat. § 973.155(1)(a).
As the supreme court recently made clear:
Neither the statute nor the case law that precedes
today’s version of Wis. Stat. §
973.155 justifies crediting a defendant’s sentence for time spent in
presentence custody that is not related to the matter for which sentence is
imposed.
Moreover,
the presentence custody’s “connection with” the sentence imposed must be
factual; a mere procedural connection will not suffice.
State v. Johnson, 2009 WI 57, ¶¶32-33, 318 Wis. 2d 21, 767 N.W.2d
207 (citations omitted).
¶12 While Shelton was unlawfully incarcerated for 143 days
after he finished serving his prison term for child enticement, that time in custody
had no connection with the upcoming service of his sexual assault
sentence. Shelton has failed to establish that the time
in which the DOC unlawfully detained him was “in connection with the course of
conduct” for which the sexual assault sentence was imposed. See State
v. Villalobos, 196 Wis.
2d 141, 148, 537 N.W.2d 139
(Ct. App. 1995) (“The law places the burden for demonstrating both custody and
its ‘connection with the course of conduct for which sentence was imposed,’
Wis. Stat. 973.155(1)(a), on the
defendant who seeks such custody.”).
¶13 Put another
way, Shelton
has not established that the custody was spent while he was awaiting trial, was being tried, or was awaiting
imposition of the sexual assault sentence.
See Wis. Stat. § 973.155(1)(a).
There is simply no statutory basis to retroactively apply presentence
credit to Shelton’s
1998 custody, which was served after
sentencing and was unrelated to his 2005 probation revocation on the sexual
assault sentence. Shelton has therefore failed to establish
that the post sentence custody was served “in connection with” the course of
conduct for which the sexual assault sentence was imposed.
When Shelton was Held in Custody for 143 Days, the
Possibility of Him Returning to Prison on His Sexual Assault Sentence was
Speculative.
¶14 Wisconsin Stat. § 973.155(1)(a)
requires that an offender be held “in custody” before he can receive sentence
credit. When Shelton was detained for 143 days, he was not
“in custody” on the sexual assault conviction—that sentence was stayed in favor
of probation. In State v. Martinez, 2007
WI App 225, 305 Wis.
2d 753, 741 N.W.2d 280, the Wisconsin Supreme Court was faced with a somewhat
similar issue. In that case, Martinez served
consecutive sentences, the first one in state prison and the second one in
federal prison. Id., ¶2. After serving his state sentence, Martinez was paroled
directly to the federal government. Id. When Martinez
finished his federal prison sentence, he began serving the remainder of the
parole period of his state sentence. Id., ¶¶2-3. Martinez
violated the terms of his parole, and was sent back to state prison. Id.,
¶4. He argued that he should be given
credit on his state sentence for time he spent in federal prison. Id.,
¶5. The supreme court rejected Martinez’s argument. The court noted that when Martinez was serving his federal sentence,
the possibility of him going back to state prison was speculative because it
was contingent on him violating the terms of his probation. Id.,
¶¶17-18. See also State v. Rohl, 160 Wis. 2d 325,
331-32, 466 N.W.2d 208 (Ct. App. 1991) (Because the defendant was on parole in
Wisconsin at the time he was confined on charges in California, the period of
confinement in California could not be credited against his Wisconsin sentence.).
¶15 Similarly,
when Shelton was
held in custody for 143 days after he was released from prison on the child
enticement sentence, the possibility of him returning to prison on his sexual
assault sentence was speculative. He was
thus not “in custody” on the sexual assault sentence, and therefore cannot
receive credit on that sentence.
CONCLUSION
¶16 Shelton is not entitled to
a reduction in his current sentence by transferring the 143 days he unlawfully
spent in custody on a previous sentence.
His petition for habeas corpus is denied.
By the Court.—Order affirmed.
Not recommended for
publication in the official reports.