COURT OF APPEALS DECISION DATED AND RELEASED December 27, 1996 |
NOTICE |
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. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1593-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ALLEN K. UMENTUM,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Shawano County: THOMAS G. GROVER, Judge. Affirmed.
MYSE, J. Allen Umentum appeals
the trial court's sentence of six months' confinement (imposed and stayed) with
a sentence of eighteen months' probation involving certain conditions,
including ten days' confinement in the county jail then imposed. Umentum contends that the court is without
authority to impose a sentence of probation concurrent to a sentence previously
imposed by the Outagamie County Circuit Court and for which Umentum was currently
on parole. Umentum also contends that
the court's requirement that the imposed and stayed sentence be served
consecutive to the sentence he was serving begins on the day he re-enters
prison as a result of his parole revocation and not at the end of the sentence
he is serving. Because this court
concludes that a sentence of probation can be made concurrent to a sentence
being served on parole and that the imposed and stayed sentence is consecutive
to the sentence previously imposed by the Outagamie County Circuit Court, the
judgment and order are affirmed.
Allen Umentum was
convicted of a felony in Outagamie County and sentenced to five years in the
Wisconsin prison system. He was paroled
from prison and committed another offense in Shawano County. Following conviction, the Shawano County
Court imposed and stayed a six-month sentence in county jail to be served
consecutive to the Outagamie County sentence.
Umentum was placed on probation for a period of eighteen months and
required to meet a series of conditions of probation, including ten days'
confinement. The sentencing took place
on April 29, 1994, and Umentum immediately served the ten days as a
condition of probation. His probation
and parole were revoked in November 1995, and Umentum was returned to Dodge
Correctional Institution to serve the remainder of the felony sentence imposed
by the Outagamie County Court.
Both issues raised by
Umentum involve an interpretation of statutes and as such present questions of
law which are to be determined without deference to the trial court's
determination. See State
ex rel. Frederick v. McCaughtry, 173 Wis.2d 222, 225, 496 N.W.2d 177,
179 (Ct. App. 1992). The goal of
statutory construction is to determine the legislature's intent. Id. The first recourse to determine legislative intent is the
language of the statute itself. Id.
at 225-26, 496 N.W.2d at 179. Only if
the language of a statute is ambiguous may one resort to legislative history
and other extraneous matters in attempting to determine legislative
intent. Id.
Umentum first contends
that probation cannot be concurrent to his parole. Section 973.15(2)(a), Stats.,
provides:
[T]he
court may impose as many sentences as there are convictions and may provide
that any such sentence be concurrent with or consecutive to any other sentence
imposed at the same time or previously.
This
language clearly empowers the court to impose a sentence either concurrent with
or consecutive to the sentence now being served. Further, § 973.09(1)(a), Stats.,
provides in part that "The period of probation may be made consecutive to
a sentence on a different charge, whether imposed at the same time or
previously." This necessarily
implies that probation may be made concurrent with a previously imposed sentence.
The Shawano County Court
elected to impose probation which commenced upon sentencing even though
Umentum, who was on parole, was serving the remaining portion of his Outagamie
County sentence at the time probation was imposed. The statute clearly and unambiguously provides that the
probationary sentence can be imposed concurrently with the sentence now being
served. The fact that Umentum is on
parole does not change the legislative grant of authority to the court to make
the sentence concurrent. Parole is part
of a sentence being served and does not change the fact that he was serving his
sentence imposed by the Outagamie County Circuit Court at the time the Shawano
County Court ordered probation to commence.
Therefore, Umentum's contention that the court is without power to
structure such a sentence has no merit.
Indeed, it would be unfair and unduly harsh on defendants to require
that any sentence of probation be served consecutive to and not concurrent with
a previously imposed sentence.
Umentum next contends
that there is ambiguity as to when the imposed and stayed sentence of six
months' confinement is to be served.
Umentum raises the issue by asking the question: this sentence is to be served consecutive to
what? The answer to the question was
provided by the court itself when it imposed a sentence to be served
consecutive to the sentence imposed by the Outagamie County Court. The answer therefore is that upon the
conclusion of Umentum's Outagamie County sentence, Umentum will be required to
serve six months' confinement for the offense committed in Shawano County. The intention of the court to achieve this
end is clearly reflected by the language of the sentence it imposed. There is no statutory provision that
restricts the court's power to provide the sentence be consecutive to the
previously imposed sentence.
While there may be some
scenarios in which the imposition of such a sentence would result in strange
and peculiar results, the facts of this case are rather straightforward and the
result clearly required by the nature of the sentence imposed by the Shawano
County Court. This court therefore
concludes that the sentence to six months' confinement is to be served
consecutive to the sentence imposed by the Outagamie County Court.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.