REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of a
published decision of the court of appeals, State v. Lamar, 321 Wis. 2d 334, 773 N.W.2d 446. The court of appeals affirmed a decision and
order of the Milwaukee County Circuit Court, Clare L. Fiorenza, Judge, denying
Charles Lamar's (Lamar) post-conviction motion for additional sentence credit.
¶2 Lamar originally pleaded guilty and was sentenced for aggravated
battery and misdemeanor bail jumping, both as a habitual offender, for severely
beating his girlfriend. Approximately
one year later, Lamar filed a motion to withdraw his guilty plea on the
aggravated battery as a habitual offender charge. The circuit court granted Lamar's motion and
the sentence was vacated. Lamar
subsequently pleaded guilty to aggravated battery and a second misdemeanor bail
jumping charge.
¶3 Lamar contends that, pursuant to Wis. Stat. § 973.04
(2007-08),
he is entitled to sentence credit for the period between the date he began
serving his original aggravated battery as a habitual offender sentence and the
date he completed the initial confinement portion of his misdemeanor bail
jumping as a habitual offender sentence.
Lamar further argues that the post-conviction decision and order of the
circuit court denying him additional sentence credit violates his due process
rights against double jeopardy.
¶4 We reject Lamar's interpretation of Wis. Stat. § 973.04 and
conclude that, under State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), Lamar is
not entitled to additional sentence credit.
We hold that an offender is not entitled to additional sentence credit
pursuant to § 973.04 when (1) the vacated sentence was originally imposed
concurrent to a separate sentence, (2) the separate sentence is not vacated,
(3) the vacated sentence is reimposed consecutively to the non-vacated
sentence, and (4) the time that the defendant requested was served in
satisfaction of the sentence that was not vacated. Additionally, we conclude that Lamar is not
entitled to additional sentence credit by virtue of the constitutional
protection against double jeopardy.
I.
BACKGROUND AND PROCEDURAL HISTORY
¶5 On March 23, 2006, Lamar was arrested and held in custody for
severely beating his live-in girlfriend, Patricia McGee. Ms. McGee suffered two skull fractures and
two facial fractures as a result of the beating. Lamar was charged as follows: Count I,
aggravated battery as a habitual offender, in violation of Wis. Stat. § 940.19(5) (2005-06);
Count II, misdemeanor bail jumping as a habitual offender, in violation of Wis.
Stat. § 946.49(1)(a)
(2005-06); and Count III, misdemeanor bail jumping as a habitual offender, also
in violation of Wis. Stat. § 946.49(1)(a)
(2005-06).
¶6 In August 2006, Lamar and the State entered into a plea
agreement. Pursuant to the plea
agreement, Lamar pleaded guilty to Count I, aggravated battery as a habitual
offender, and Count II, misdemeanor bail jumping as a habitual offender. Also pursuant to the plea agreement, Count
III, misdemeanor bail jumping as a habitual offender, was dismissed.
¶7 On September 15, 2006, the circuit court sentenced
Lamar to a term of imprisonment of seventeen years on Count I, aggravated
battery as a habitual offender, consisting of twelve years of initial
confinement followed by five years of extended supervision. Lamar was also sentenced to a term of
imprisonment of two years on Count II, misdemeanor bail jumping as a habitual
offender, consisting of one year of initial confinement followed by one year of
extended supervision. These two
sentences were to be served concurrently
to each other. The circuit court
granted Lamar 177 days of sentence credit on both counts for time he spent in
custody in connection with these charges from March 23, 2006 (the date of his
arrest) to September 15, 2006 (the date of Lamar's sentencing for Count I,
aggravated battery as a habitual offender, and Count II, misdemeanor bail
jumping as a habitual offender).
¶8 On March 23, 2007, Lamar completed the initial confinement portion
of his sentence on Count II, misdemeanor bail jumping as a habitual offender,
and remained in custody on Count I, aggravated battery as a habitual offender.
¶9 On August 29, 2007, the trial court granted Lamar's
motion to withdraw his guilty plea on Count I, aggravated battery as a habitual
offender. Lamar’s motion claimed he did
not understand the penalties for aggravated battery as a habitual offender when
he pled guilty to the charge. During the
plea hearing, the circuit court had erroneously informed Lamar that the maximum
penalty for aggravated battery as a habitual offender was nineteen years, when
in fact the maximum penalty was twenty-one years.
¶10 After Lamar withdrew his guilty plea to Count I, aggravated battery
as a habitual offender, the State was no longer bound by the plea
agreement. Consequently, the circuit
court reinstated Count III, the second count of misdemeanor bail jumping as a
habitual offender.
¶11 Several months later, Lamar and the State entered into another plea
agreement. Pursuant to this second plea agreement, Lamar
pled guilty to aggravated battery (Amended Count I) and misdemeanor bail
jumping (Amended Count III). Unlike Lamar's initial plea agreement, neither
guilty plea under the second plea agreement included the habitual offender
penalty enhancer. Further, under the
terms of the second plea agreement, Judge Conen recused himself from
sentencing and the matter was transferred by judicial assignment to a different
circuit court judge, Judge Fiorenza, for sentencing.
¶12 On January 3, 2008, Judge Fiorenza sentenced Lamar on Amended Count
I, aggravated battery, and Amended Count III, misdemeanor bail jumping. Judge Fiorenza sentenced Lamar to a term of
imprisonment of fifteen years on Amended Count I, aggravated battery,
consisting of ten years of initial confinement followed by five years of
extended supervision. Lamar was also
sentenced on Amended Count III, misdemeanor bail jumping, to nine months
confinement. The sentences for Amended
Count I, aggravated battery, and Amended Count III, misdemeanor bail jumping,
were to be served concurrently to each other, but consecutively
to any other sentence. This meant that
the sentences for Amended Count I, aggravated battery, and Amended Count III,
misdemeanor bail jumping, were to be served, together, consecutively to
the sentence for Count II, misdemeanor bail jumping as a habitual offender. Judge Fiorenza granted Lamar 306 days of
sentence credit. This sentence credit reflected the days spent in confinement
between the time his initial confinement portion of his sentence for Count II,
misdemeanor bail jumping as a habitual offender, ended on March 23, 2007, and
before his January 3, 2008 sentences were imposed for Amended Count I,
aggravated battery, and Amended Count III, misdemeanor bail jumping.
¶13 Lamar petitioned the circuit court for an order granting him 189
days of additional sentence credit for the days he was in confinement between
September 15, 2006 (the date he began serving his sentence on Count I,
aggravated battery as a habitual offender, and Count II, misdemeanor bail
jumping as a habitual offender) and March 23, 2007 (the date Lamar completed
the initial confinement portion of his sentence on Count II, misdemeanor bail
jumping as a habitual offender). The 189
days of additional sentence credit Lamar requested were the days during which
he was serving time for Count I, aggravated battery as a habitual offender, and
Count II, misdemeanor bail jumping as a habitual offender. Lamar based his request on Wis. Stat. § 973.04, which states:
"When a sentence is vacated and a new sentence is imposed upon the
defendant for the same crime, the department shall credit the defendant with
confinement previously served."
¶14 The circuit court denied Lamar’s motion for additional sentence
credit. Applying the holding of State
v. Boettcher, 144 Wis. 2d 86, the circuit court
ruled that sentence credit should not be granted for two sentences being served
consecutively to each other. The court
reasoned that because Amended Count I, aggravated battery, was sentenced consecutively
to Count II, misdemeanor bail jumping as a habitual offender, Lamar was not
entitled to credit for both sentences.
Further, the court held that Wis. Stat. § 973.04 does not "supplant or preempt this
basic and long-standing rule."
¶15 The court of appeals affirmed the circuit court's denial of
additional sentence credit. Lamar,
321 Wis. 2d 334, ¶20. First, the court of appeals concluded that
Wis. Stat. § 973.04
applies only to sentencing in cases where "a defendant is serving one
sentence and that particular sentence is vacated." Id.,
¶9. The court looked at the history of
the statute, finding it was enacted in response to State ex rel. Drankovich
v. Murphy, 248 Wis. 433, 22 N.W.2d 540
(1946), where this court held that if the petitioner was resentenced on the
conviction he was challenging, he would lose sentence credit for all the years
he had already spent in prison serving that sentence. Lamar, 321 Wis. 2d 334, ¶9 n.2.
¶16 The court of appeals explained that the days Lamar was seeking
additional sentence credit for——against
the sentence imposed on Count I, aggravated battery as a habitual offender——were the same days he was
serving an uncontested sentence on Count II, misdemeanor bail jumping as a
habitual offender. Id., ¶9. The court reasoned that because Lamar was
still serving his sentence on Count II for misdemeanor bail jumping as a
habitual offender, he should not also receive credit for his Count I sentence
for aggravated battery as a habitual offender.
Id.
¶17 Second,
the court of appeals determined that Wis. Stat. § 973.155(1) should be used to calculate Lamar’s
sentence credit. Lamar, 321 Wis. 2d 334, ¶10. The court disagreed with Lamar’s argument
that the statute does not apply. Id. The court pointed out that the circuit court
properly applied § 973.155(1)
in granting Lamar 306 days of sentence credit for time spent in custody after
his initial confinement for Count II, misdemeanor bail jumping as a habitual
offender, until the time he was resentenced on Amended Count I, aggravated
battery. Id.
¶18 Further, the court of appeals reasoned that requiring the circuit
court to grant Lamar credit for time spent serving his sentence on Count I,
aggravated battery as a habitual offender, while concurrently serving
his sentence on Count II, misdemeanor bail jumping as a habitual offender,
"would effectively prohibit the later sentencing court from imposing a
consecutive sentence." Id., ¶12. To support this proposition, the court relied
again on State v. Boettcher, 144 Wis. 2d 86, where credit was
granted on only one of multiple sentences being served consecutively. Lamar, 321 Wis. 2d 334, ¶11.
¶19 Third, the court of appeals addressed Lamar's claim that refusing
to grant full credit for the time he served on Count I, aggravated battery as a
habitual offender, violated his due process rights against double
jeopardy. Id., ¶13. Double jeopardy, the court explained,
protects a person from multiple punishments for the same offense. Id. The court analyzed double jeopardy in the
context of judicial vindictiveness and the imposition of more severe
sentences. Id., ¶¶14-16.
¶20 The court of appeals reasoned that, under North Carolina v.
Pearce, 395 U.S. 711 (1969), and
subsequent case law, if a judge cites reasons for imposing a more severe
subsequent sentence, there is no finding of vindictiveness. Lamar, 321 Wis. 2d 334, ¶14 n.4. Further, the court noted that since Pearce,
the interpretation of double jeopardy has evolved. Lamar, 321 Wis. 2d 334, ¶¶14-17. Specifically, the court of appeals explained
that "[d]ouble jeopardy does not apply where a correction to an original
invalid sentence results in a sentence increase." Id., ¶17 (citing State v.
Martin, 121 Wis. 2d 670, 677-78, 360 N.W.2d 43 (1985)). The court of appeals then applied the holding
of State v. Naydihor, 2004 WI 43, 270 Wis. 2d 585,
678 N.W.2d 220,
and concluded that, because Lamar's second sentencing did not result in an
increase to his initial sentence, no double jeopardy violation occurred.
¶21 Lamar petitioned this court for review of the decision of the court
of appeals. We granted the petition on
October 27, 2010.
II.
STANDARD OF REVIEW
¶22 The
first issue in this case requires us to determine whether the circuit court
properly applied Wis. Stat. §§ 973.04
and 973.155 in denying Lamar an additional 189 days of sentence credit for
the time he was in custody from September 15, 2006, to March 23, 2007. This issue requires the court to interpret
§§ 973.04 and 973.155. Statutory
interpretation is a question of law that this court reviews de novo. State v. Johnson, 2007 WI 107,
¶¶27-28, 304 Wis.
2d 318, 735 N.W.2d 505.
¶23 "[S]tatutory interpretation 'begins with the language of the
statute. If the meaning of the statute
is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v.
Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider
v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211,
612 N.W.2d 659). We interpret statutory language "in the
context in which it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results." Id.,
¶46. Where this process yields a plain
meaning, the statute is not ambiguous and is applied according to this
ascertainment of its meaning. Id. If the language is ambiguous, however, we look
beyond the language and examine extrinsic sources of statutory interpretation,
such as the legislative history of the statute. Id.,
¶50.
¶24 The second issue in this case is whether Lamar's protection against
double jeopardy was violated by the circuit court's decision to deny Lamar's
motion for 189 days of additional sentence credit. "Whether an individual's constitutional
right to be free from double jeopardy has been violated is a question of law
that this court reviews de novo." State
v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).
III.
DISCUSSION
¶25 Lamar raises two arguments on
appeal. First, Lamar argues that,
pursuant to Wis. Stat. § 973.04, he is entitled to an additional 189 days
of sentence credit for the time he spent in custody from September 15, 2006, to
March 23, 2007. Second, Lamar contends
that the circuit court's decision and order denying Lamar's post-conviction
motion for additional sentence credit violated his constitutional protection
against double jeopardy. We address each
argument in turn.
A. Lamar Is Not Entitled To Additional Sentence
Credit Pursuant To Wis.
Stat. § 973.04
¶26 Lamar argues that, under Wis. Stat § 973.04,
he is entitled to an additional 189 days of sentence credit for the time he
spent in custody from September 15, 2006 (the date Lamar was originally
sentenced on Count I, aggravated battery as a habitual offender, and Count II,
misdemeanor bail jumping as a habitual offender), to March 23, 2007 (the date
Lamar completed the initial confinement portion of his sentence for Count II,
misdemeanor bail jumping as a habitual offender). Lamar contends that, because he served a
portion of his sentence for Count I, aggravated battery as a habitual offender,
before the sentence was vacated, he is entitled to credit for the time he
served on that sentence and Count II, misdemeanor bail jumping as a habitual
offender, to be applied to the subsequent sentence imposed on Amended Count I,
aggravated battery.
¶27 We disagree. Lamar seeks
sentence credit for the time he was in custody from September 15, 2006, to
March 23, 2007. During this period of
time, Lamar was serving two sentences concurrently: (1) Count I, aggravated
battery as a habitual offender, and (2) Count II, misdemeanor bail jumping as a
habitual offender. On January 3, 2008,
the circuit court sentenced Lamar on Amended Count I, aggravated battery, and
Amended Count III, misdemeanor bail jumping.
The circuit court ordered that Lamar serve these two sentences
concurrently to each other, but consecutive to any other sentence. As the circuit court correctly noted, Lamar
"received credit from September 15, 2006 to March 23, 2007 toward the
service of his sentence on count two [bail jumping as a habitual offender]——a sentence that was not
vacated during the prior postconviction proceedings."
¶28 In Boettcher, we held that a defendant is not entitled to
receive dual credit on a consecutive sentence.
Boettcher, 144 Wis. 2d at 87. "Credit is to be given on a day-for-day
basis, which is not to be duplicatively credited to more than one of the
sentences imposed to run consecutively."
Id.; see also State v. Jackson, 2000 WI App 41,
¶19, 233 Wis. 2d 231, 607 N.W.2d 338 (internal
quotations omitted) (noting that "[t]he core idea of Boettcher is
that dual credit is not permitted where a defendant has already received credit
against a sentence which has been, or will be, separately served.")
¶29 Under Boettcher, Lamar is not entitled to receive the 189
days of credit he is seeking because the sentences imposed on January 3, 2008,
were ordered by the circuit court to be consecutive to the sentence
previously imposed for misdemeanor bail jumping as a habitual offender.
¶30 Lamar argues that Boettcher does not apply to this case
because Boettcher was interpreting Wis. Stat. § 973.155, and not
Wis. Stat. § 973.04, in holding that dual credit should not be awarded for
consecutive sentences. Specifically,
Lamar argues that § 973.155 is inapplicable here because the statute has
been construed to govern only the award of sentence credit for pre-sentence
custody. Section 973.04, on the other hand, governs post-sentencing
custody, which is what Lamar argues is at issue in this case.
¶31 We disagree. Wisconsin Stat.
§ 973.155(1) provides in relevant part:
(1)(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) and sub. (1m) 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.
. . . .
(3)
The credit provided in sub. (1) or (1m) shall be computed as if the convicted
offender had served such time in the institution to which he or she has been
sentenced.
¶32 The plain language of Wis. Stat. § 973.155(1)(a)3. makes clear
that the statute applies to credit for custody "[w]hile the offender is
awaiting imposition of sentence after trial." The 189 days of additional sentence credit
Lamar seeks were all served before the imposition of his second sentencing on
January 3, 2008——that
is, while he was awaiting sentencing.
Consequently, § 973.155,
which was interpreted in Boettcher as prohibiting dual credit on
consecutive sentences, applies here.
¶33 Lamar argues that applying Wis. Stat. § 973.155 and the Boettcher
rule to the instant case effectively renders Wis. Stat. § 973.04 meaningless. As Lamar correctly notes, statutes are to be
construed to avoid absurd or unreasonable results. State v. Galvan, 2007 WI App 173, ¶7,
304 Wis. 2d 466, 736 N.W.2d 890. Lamar contends that if we conclude that §
973.155 controls in this situation, we will effectively be acting as though the
legislature did not intend to grant sentence credit for time served against a
vacated sentence pursuant to § 973.04. The court of appeals did not address this
argument, concluding that § 973.04 is inapplicable under the facts of this
case. Specifically, the court of appeals
interpreted § 973.04 as applying only in situations where "a
defendant is serving one sentence and that particular sentence is
vacated." State v. Lamar,
321 Wis. 2d 334, ¶9.
¶34 The State argues (and Lamar obviously agrees) that the court of
appeals interpreted the scope of Wis. Stat. § 973.04 too narrowly. We agree.
Neither the plain language of § 973.04 nor precedent supports the
conclusion that the statute is meant to apply only to cases involving one
sentence.
¶35 Instead, we conclude that Wis. Stat. §§ 973.04 and 973.155 are both applicable to the
instant case. The operative language of
§ 973.04——that the
defendant shall be credited "with confinement previously served"——must be interpreted in
light of the nature of the particular sentences imposed. A court has the authority to "provide
that any such sentence be concurrent with or consecutive to any other sentence
imposed at the same time or previously."
Wis.
Stat. § 973.15(2).
¶36 Here, the circuit court ordered that Lamar's sentences for Amended
Count I, aggravated battery, and Amended Count III, misdemeanor bail jumping,
run consecutive to any other sentence.
If the circuit court had ordered Lamar to serve his sentences for
Amended Count I, aggravated battery, and Amended Count III, misdemeanor bail
jumping, concurrently with Count II, misdemeanor bail jumping as a habitual
offender, he would be entitled to all of the time he served on the original
Count I charge for aggravated battery as a habitual offender. However, because the circuit court ordered
the sentences for Amended Count I, aggravated battery, and Amended Count III, misdemeanor
bail jumping, to be served consecutively to any other sentence, the sentence
credit Lamar seeks was not "previously served" in satisfaction of the
sentence for Amended Count I, aggravated battery, but only in satisfaction of
the sentence for Count II, misdemeanor bail jumping as a habitual offender.
¶37 In the instant case, the time for which Lamar seeks sentence credit
was served on a separate, non-concurrent sentence. If Lamar received the sentence credit he
seeks, he would receive dual credit from two consecutive sentences for the
period from September 15, 2006, through March 23, 2007. As this court held in Boettcher,
defendants are not entitled to dual credit on a consecutive sentence. See Boettcher, 144 Wis. 2d at 87 ("Credit is
to be given on a day-for-day basis, which is not to be duplicatively credited
to more than one of the sentences imposed to run consecutively."). Accordingly, we conclude that Lamar received
all of the sentence credit to which he is entitled.
¶38 The dissent argues that applying Wis. Stat. § 973.155 to the instant case is an unreasonable interpretation
of the statute. Dissenting op., ¶12. Instead, the dissent adopts Lamar's
interpretation of Wis. Stat. §§ 973.04
and 973.155, contending that § 973.04
controls in this case and § 973.155
is inapplicable. The dissent maintains
that our holding "rejects reality," while the dissent's approach
"honors the intent of both the original and second sentencing
courts." Id., ¶25. This is
wholly inaccurate.
¶39 The dissent's approach does not honor the intent of the original
and second sentencing courts; in fact, it entirely ignores the intent, and
subverts the authority, of the second sentencing court in an attempt to honor
the intent behind a sentence that was subsequently vacated. The original sentencing court ordered Lamar
to serve concurrent sentences for Count I and Count II. Subsequently, in response to Lamar's motion
to withdraw his guilty plea on Count I, the Count I sentence was vacated. To vacate means "[t]o nullify or cancel;
make void; invalidate." Black's
Law Dictionary 1435 (9th ed. 2009).
This vacated sentence for Count I, imposed by the original sentencing
court, is the exclusive focus of the dissent's argument.
¶40 The problem with the dissent's approach is that two courts
sentenced Lamar, not one. After Count I
was vacated——in other words, after it was nullified and no longer in
effect——Lamar was resentenced on Amended Count I. The circuit court, pursuant to its authority
under Wis. Stat. § 973.15(2),
resentenced Lamar to serve his Amended Count I sentence consecutive to any
other sentence. It is the dissent that chooses to
"reject reality," inexplicably concluding that the most reasonable
manner of honoring the intent of the second sentencing court is to altogether
disregard the court's statutory authority to impose consecutive sentences. We hold that the more effective way to honor
the intent of the second sentencing court is to actually uphold the sentence it
imposed, rather than disregard it.
¶41 The facts of this case are unusual, and consequently our holding is
narrow. We hold that an offender is not
entitled to additional sentence credit pursuant to Wis. Stat. § 973.04
when (1) the vacated sentence was originally imposed concurrent to a separate
sentence, (2) the separate sentence is not vacated, (3) the vacated sentence is
reimposed consecutively to the non-vacated sentence, and (4) the time that the
defendant requested was served in satisfaction of the sentence that was not
vacated.
B. Double Jeopardy Principles Do Not Compel
Awarding Lamar Additional Sentence Credit
¶42 Lamar next argues that double jeopardy principles compel crediting
him with every day he served under his original aggravated battery as a
habitual offender sentence.
¶43 The Fifth Amendment to the United States Constitution protects an
individual from being twice put in jeopardy for the same offense. In Benton v. Maryland, 395 U.S. 784
(1969), this guarantee against double jeopardy was held enforceable against the
states through the Fourteenth Amendment.
The Wisconsin Constitution also guarantees protection from double
jeopardy in Article I, § 8(1). "Because the protection afforded by these
provisions is coextensive, Wisconsin courts
have traditionally treated them as one."
State v. Gruetzmacher, 2004 WI 55, ¶21, 271 Wis. 2d 585, 679 N.W.2d 533.
¶44 The guarantee against double jeopardy encompasses three separate
constitutional protections. North Carolina v. Pearce, 395 U.S.
711, 717 (1969). "It protects
against a second prosecution for the same offense after acquittal. It protects against a second prosecution for
the same offense after conviction. And
it protects against multiple punishments for the same offense." Id.
at 717. Lamar contends that under this
last protection——the
protection against multiple punishments for the same offense——he is constitutionally
entitled to the 189 days of additional sentence credit at issue in this case.
¶45 In Pearce, the United States Supreme Court cited the
landmark case of Ex parte Lange, 85 U.S. 163 (1873), for the principle
that double jeopardy protections are undoubtedly "violated when punishment
already exacted for an offense is not fully 'credited' in imposing sentence
upon a new conviction for the same offense." 395 U.S. at 717-18. Lamar argues that, if upheld, the rulings of
the circuit court and court of appeals will be violating this venerable
principle.
¶46 The court of appeals and the State fail to directly respond to
Lamar's double jeopardy argument, focusing primarily on the fact that no
evidence in the record suggests the circuit court was vindictive in the
sentence it imposed on January 3, 2008. As Lamar understandably stresses, he has
never alleged that the circuit court was acting vindictively. In fact, Lamar's double jeopardy argument has
nothing to do with judicial vindictiveness.
Lamar's argument instead contends that declining to credit Lamar for the
time he served from September 15, 2006, to March 23, 2007, fails to fully
credit Lamar for every day he was in custody for his Count I sentence for
aggravated battery as a habitual offender.
Lamar argues that failing to fully credit him for the time he was in
custody during this period violates his constitutional protection against
double jeopardy.
¶47 We are not persuaded by Lamar's argument. On January 3, 2008, the circuit court ordered
that Lamar's Amended Count I sentence for aggravated battery be served consecutively
to any other sentence. From September
15, 2006, to March 23, 2007——the
time period for which Lamar is seeking additional sentence credit——Lamar was serving his Count
I sentence and his Count II sentence for misdemeanor bail jumping as a
habitual offender concurrently. Because
the circuit court, during Lamar's second sentencing, ordered him to serve his
sentences for Amended Count I, aggravated battery, and Amended Count III,
misdemeanor bail jumping, consecutively to any other sentence, it would
go against the order of the circuit court to credit Lamar with time he served
before March 23, 2007 (the date Lamar completed his initial incarceration
portion of his Count II sentence for misdemeanor bail jumping as a habitual
offender).
¶48 This does not violate Lamar's constitutional protection against
double jeopardy. In State v. Amos,
153 Wis. 2d 257, 450 N.W.2d 503 (Ct. App. 1989),
the court of appeals faced a double jeopardy claim based on the trial court's
revocation of its original award of 726 days of sentence credit. The court of appeals held that the
elimination of sentence credit to which an offender is not statutorily entitled
does not violate double jeopardy. 153 Wis. 2d at 281-82. The Amos court concluded that,
"[I]n this case, the sentence was modified to eliminate . . . credit that [the
defendant] was not entitled to." Id. at 282. Accordingly, double jeopardy was not
implicated. Id.
¶49 Here, the circuit court, pursuant to Wis. Stat. §§ 973.04 and 973.155,
properly denied Lamar's postconviction motion for additional sentence
credit. Consequently, Lamar was not
statutorily entitled to this additional sentence credit, and as the court of
appeals held in Amos, we conclude that Lamar's protection against double
jeopardy has not been violated.
¶50 From September 15, 2006, to March 23, 2007, Lamar received credit
for the sentence he was serving for Count II, misdemeanor bail jumping as a
habitual offender. We hold that the constitutional
guarantee against double jeopardy does not require that a defendant receive
sentence credit for every day served against a sentence when (1) the vacated
sentence was originally imposed concurrent to a separate sentence, (2) the
separate sentence is not vacated, (3) the vacated sentence is reimposed
consecutively to the non-vacated sentence, and (4) the time that the defendant
requested was served in satisfaction of the sentence that was not vacated.
IV. CONCLUSION
¶51 Lamar contends that, pursuant to Wis. Stat. § 973.04, he is
entitled to sentence credit for the period between the date he began serving
his original aggravated battery as a habitual offender sentence and the date he
completed the initial confinement portion of his misdemeanor bail jumping as a
habitual offender sentence. Lamar
further argues that the post-conviction decision and order of the circuit court
denying him additional sentence credit violates his due process rights against
double jeopardy.
¶52 We reject Lamar's interpretation of Wis. Stat. § 973.04 and
conclude that, under State v. Boettcher, 144 Wis. 2d 86, Lamar is not
entitled to additional sentence credit.
We hold that an offender is not entitled to additional sentence credit
pursuant to § 973.04 when the vacated sentence was originally imposed
concurrent to a separate sentence, that sentence is not vacated, the vacated
sentence is reimposed consecutively to the non-vacated sentence, and the time
that the defendant requested was served in satisfaction of the sentence that
was not vacated. Additionally, we
conclude that Lamar's constitutional protection against double jeopardy does
not compel us to grant Lamar with additional sentence credit.
By the Court.—The decision of the Court of
Appeals is affirmed.
¶53 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). Circuit courts and the Department of
Corrections deal with sentence credit every day in a variety of fact
situations. Clarity and simplicity in
computing sentence credit continues to escape us all. In July 2010, State v. Carter, 2010 WI
77, 327 Wis. 2d 1,
785 N.W.2d 516, a sentence credit case in which the State and the
defendant agreed about the credit to be awarded, produced 5 opinions totaling
more than 100 printed pages. Here we go
once again!
¶54 In the present case, the dispute focuses on 189 days that the
defendant served under his original sentence for aggravated battery. The majority opinion refuses to apply the
clear text of Wis. Stat. § 973.04, renders § 973.04 surplusage, and violates Lamar's
constitutional guarantee against double jeopardy. As a result of the majority opinion, Lamar,
who has served 189 days in confinement for aggravated battery, will now serve
those 189 days again for the same offense. "If there is anything settled in the
jurisprudence of England and
America,
it is that no man can be twice lawfully punished for the same offence." I would apply Wis. Stat. §§ 973.04 and 973.155,
and I would not punish Lamar twice for the same offense.
¶55 To help clarify the issue I set forth the timeline both in chart
and bullet forms:
¶56 The following timeline more fully explains the chart:
• On March 23, 2006, Lamar was taken into
custody for conduct leading to the aggravated battery and bail jumping charges.
• Lamar remained in custody for 177 days prior
to his first sentencing.
• On September 15, 2006, Lamar began serving
his concurrent sentence for Count 1 (aggravated battery as a habitual offender)
and Count 2 (misdemeanor bail jumping as a habitual offender). This period amounted to 189 days of
incarceration.
• On March 23, 2007 Lamar completed serving
his initial confinement punishment for Count 2.
He remained incarcerated under the sentence for Count 1.
• On August 29, 2007, 159 days of
incarceration later, Lamar successfully withdrew his guilty plea to Count
1. Count 3 was reinstated.
• Lamar remained incarcerated for an
additional 127 days on Counts 1 and 3 until January 3, 2008, when he was
sentenced on Counts 1 and 3.
I
¶57 The only statute explicitly referring to sentence credit when a
sentence is vacated is Wis. Stat. § 973.04. This specific statute governs the disputed
189 days in the present case. The
statute mandates that the Department of Corrections credit a defendant with
confinement previously served for the same crime. The statute provides as follows:
973.04 Credit
for imprisonment under earlier sentence for the same crime. When a sentence is vacated and a new
sentence is imposed upon the defendant for the same crime, the department shall
credit the defendant with confinement previously served.
¶58 The statute has three elements: (1) a sentence is vacated, (2) a
new sentence is imposed, (3) for the same crime.
¶59 The instant case satisfies these three elements. Lamar's original sentence for Count 1
(aggravated battery with habitual offender penalty) was vacated. On January 3, 2008, a new sentence for Count
1 (aggravated battery without habitual offender penalty) was imposed. With the three statutory elements met in the
present case, Wis. Stat. § 973.04 requires ("the department shall")
that Lamar be credited with 189 days.
¶60 Wisconsin Stat. § 973.04
was enacted to be a post-sentencing statute.
The statute is clear on its face.
The present case meets the three elements. Accordingly, Lamar should be credited the 189
days he has previously served for the crime.
¶61 The majority does not adopt this view. Rather confusingly, the majority opinion
grasps tightly to the idea that because Lamar's new sentence for Count 1 was
imposed consecutively to any other sentence (that is, consecutive to Count 2
misdemeanor bail jumping), the 189 days Lamar spent incarcerated, chipping away
at his original sentence for both Counts 1 and 2, never really happened. This post hoc interpretation rejects
reality.
¶62 In effect, the majority is saying to Lamar: You know those 189 days that you (and everyone
else) thought you were serving in prison for that aggravated battery as well as
misdemeanor bail jumping? Well, they
didn't happen. We're not going to count
them for aggravated battery. We'll just
start your punishment for that conduct over again from the beginning.
¶63 Yet during the 189 days at issue, both Lamar and the Department of
Corrections viewed Lamar as serving time for aggravated battery as well as
misdemeanor bail jumping. The majority
opinion has retroactively changed what those 189 days represent. Under the majority's interpretation, the 189
days in custody are not "confinement previously served" for Count 1,
falling under Wis. Stat. § 973.04; the majority has instead morphed these
189 days into custody "awaiting sentence" on Count 1.
¶64 As I see it, this interpretation is unreasonable, if not
absurd. How can the court retroactively
change the basis upon which a person was incarcerated when a new sentence for
the same crime is subsequently imposed?
¶65 In future cases, when a sentence is vacated, the majority allows a
defendant's confinement for the vacated sentence to be recast as
"presentence time" and governed by Wis. Stat. § 973.155.
Thus the majority's interpretation seems to render Wis. Stat.
§ 973.04 surplusage.
II
¶66 Casting Wis. Stat. § 973.04 aside, the majority opinion turns
to § 973.155(1)(a)3., a more general statute governing sentence credit. This statute governs credit for presentence
confinement and provides as follows in pertinent part:
973.155 Sentence
credit. (1) (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.
¶67 According to the majority opinion, Lamar falls within Wis. Stat. § 973.155(1)(a)3.: credit is given "for custody '[w]hile
the offender is awaiting imposition of sentence after trial.'" Majority op., ¶32 (quoting Wis. Stat. § 973.155).
¶68 The majority explains that the 189 days in question amounts to time
"[Lamar] was awaiting sentencing."
The majority opinion views the 189 days as "served before the
imposition of his second sentencing on January 3, 2008——that is, while he was awaiting sentencing." Majority op., ¶32.
¶69 The problem with this approach is that the 189 days in question
were not days Lamar spent in custody awaiting for his new sentence for Count
I. These 189 days were days spent in
prison under a sentence for aggravated battery before Lamar withdrew his guilty
plea. Those 189 days were spent serving
time for Count 1 concurrently with serving time for Count 2. The majority's recasting of the time Lamar
served under a vacated sentence as "presentence time" is a fiction
that misrepresents the reason Lamar was in prison.
¶70 Adhering to this fiction that the 189 days were presentence time,
the majority opinion acknowledges that Lamar is deserving of sentence credit
for the 189 days presentence time under Wis. Stat. § 973.155.
Nevertheless, the majority opinion declares that State v. Boettcher,
144 Wis. 2d 86,
423 N.W.2d 533 (1988), prohibits Lamar from receiving credit.
¶71 The majority opinion centers most of its rationale against granting
Lamar sentence credit for the 189 days in question on the fact that the new
sentence imposed for Count 1, after the original sentence was vacated, was
ordered to run consecutively to any other sentence, namely consecutively
to Count 2, misdemeanor bail jumping.
This is where the majority's reliance on State v. Boettcher comes
in. I turn to Boettcher.
¶72 In Boettcher, 144 Wis. 2d at 87, the court concluded
that "dual credit is not permitted——that
the time in custody is to be credited to the sentence first imposed——and that, where the
sentences are consecutive . . . [c]redit is to be given
on a day-for-day basis, which is not to be duplicatively credited to more than
one of the sentences imposed to run consecutively."
¶73 The majority opinion errs in applying Boettcher to the 189
days. The majority opinion applies Boettcher
while focusing on implementing the circuit court's second sentence for Count 1
as consecutive to the sentence for Count 2.
In doing so, the majority opinion ignores——pays no heed to——the
circuit court's original sentence for Count 1 to be concurrent with the sentence
for Count 2.
¶74 Lamar applies Boettcher properly. Lamar does not dispute
that the 177 days he remained in custody (March 23, 2006September 15, 2006) before the first sentencing are
presentence confinement days. As such,
those 177 days should, because of the new consecutive sentence, be credited
under Wis. Stat. § 973.155 and Boettcher only to the sentence first
imposed, namely the sentence for Count 2.
¶75 Lamar reasons, however, that the 189 days he served after the
original sentencing for both Counts 1 and 2, which according to the original
sentence run concurrently, are not presentence days, and do not fall within
§ 973.155 or Boettcher. I
agree with Lamar's reasoning.
¶76 Lamar's interpretation comports with the texts of both statutes and
Boettcher. Lamar gets credit for
presentence confinement, in accordance with Wis. Stat. § 973.155. Applying Boettcher, he gets credit for
the presentence confinement on only the sentence first imposed, namely Count
2. Because the new sentence was ordered
consecutive to Count 2, the initial 177 days in custody are rightfully credited
only to Count 2. But because Lamar's
sentence on Count 1 was vacated and a new sentence was imposed for the same
crime, under § 973.04
Lamar must get credit for the punishment he has already served for that crime,
namely the 189 days he served under the original sentence for Count 1.
¶77 Lamar's interpretation, which I adopt, harmonizes Wis. Stat. § 973.04 and § 973.155, applies both
statutes to the facts of the present case, applies the Boettcher rule,
and honors the intent of both the original and second sentencing circuit
courts. Accordingly, I would grant Lamar
the 189 days sentence credit.
III
¶78 My interpretation of the sentencing credit statutes does not raise
a double jeopardy issue. I conclude that
the majority opinion's failure to grant Lamar sentencing credit for the 189
days in question violates his constitutional guarantees against double
jeopardy.
¶79 I join the majority (majority op., ¶45) in looking to Ex parte
Lange, 85 U.S. 163 (1873), in which the United States Supreme Court wrote:
If there is anything settled in the jurisprudence of England and America, it is that no man can be
twice lawfully punished for the same offence.
And though there have been nice questions in the application of this
rule to cases in which the act charged was such as to come within the
definition of more than one statutory offence, or to bring the party within the
jurisdiction of more than one court, there has never been any doubt of its
entire and complete protection of the party when a second punishment is
proposed in the same court, on the same facts, for the same statutory offence.
¶80 Lamar was incarcerated for the 189 days in question as punishment
for his conduct in committing aggravated battery. He is now to be incarcerated as punishment
for the same conduct, aggravated battery, without credit for the 189 days. The punishment exacted was not "fully
'credited' in imposing sentence upon a new conviction for the same
offense."
¶81 Lamar's fundamental constitutional rights have been violated by the
majority's failure to grant sentence credit.
¶82 For the foregoing reasons, I dissent.
¶83 I am authorized to state that Justice ANN WALSH BRADLEY joins this
dissent.