PUBLISHED OPINION
Case No.: 96‑1952‑CR
For Complete Title
of Case, see attached opinion
Submitted on Briefs
November 12, 1996
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS For the defendant-appellant the cause was submitted on
the brief of Scott I. Collet.
Respondent
ATTORNEYS For the plaintiff-respondent the cause was submitted on
the brief of James E. Doyle, attorney general, and Pamela Magee,
assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED December 3, 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. 96-1952-CR
STATE
OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SCOTT I. COLLETT,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Outagamie County:
JAMES T. BAYORGEON, Judge. Remanded
with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Scott Collett appeals an order denying
him sentence credit for time spent in the Department of Intensive Sanctions
(DIS). Collett contends that the time
he spent in the DIS program constitutes "custody" under § 973.155(1)(a),
Stats., and therefore should be
credited to his sentence. Because we
conclude that whether an individual is in "custody" in the DIS
program, and therefore entitled to sentencing credit, depends on evaluating the
restrictions on the defendant's freedom imposed by the program, we remand to
the trial court for findings of fact as to the specific restrictions the DIS
program imposed on Collett's freedom.
Collett violated his
probation and, as an alternative to revocation, he was offered placement in the
DIS program, which he accepted. He
participated in the program for one year and was discharged. Collett again violated his probation, which
was revoked and the three five-year concurrent sentences previously imposed and
stayed were implemented. Collett moved
for sentence modification arguing that he should have been credited for the
year he was in the DIS program. This
motion was denied and this appeal followed.
Section 973.155(1)(a), Stats., authorizes sentence credit and
reads: "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." Whether Collett is
entitled to sentence credit is a matter of statutory construction. See State v. Swadley,
190 Wis.2d 139, 141, 526 N.W.2d 778, 779 (Ct. App. 1994). Statutory construction involves questions of
law that we review without deference to the trial court. State ex rel. Frederick v. McCaughtry,
173 Wis.2d 222, 225, 496 N.W.2d 177, 179 (Ct. App. 1992).
Collett contends he was
in custody for purposes of § 973.155(1)(a), Stats.,
and points to the plain language of Wis.
Stat. Ann. § 301.048 (West Supp. 1996), which reads:
(4)
Status. (a) A participant
is in the custody and under the control of the department, subject to its rules
and discipline. A participant entering
the program under sub. (2)(a) or (b) is a prisoner. A participant entering the program under sub. 2(c) is a prisoner,
except that he or she is a parolee for purposes of revocation. A participant entering the program under
sub. 2(d) is a prisoner, except that he or she remains a probationer or
parolee, whichever is applicable, for purposes of revocation.
In
determining whether a person is in "custody" for purposes of sentence
credit, our supreme court has concluded that an individual is in custody for
sentence credit if the individual can be charged with escape under Wis. Stat. Ann. § 946.42(1)(a)
(1996). State v. Gilbert,
115 Wis.2d 371, 378-79, 340 N.W.2d 511, 513 (1983).
Wisconsin
Stat. Ann. § 946.42(1)(a) (1996), reads:
"Custody"
includes without limitation actual custody of an institution, including a
secured juvenile correctional facility, a secured child caring institution, as
defined in s. 938.02(15g), a secure detention facility, as defined in s.
938.02(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. 48.366, 938.183, 938.34(4h) or (4m) or 938.357(4) or
(5)(e) 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.
Under s. 303.08(6) it means, without limitation, that of the sheriff of
the county to which the prisoner was transferred after conviction. It does not include the custody of a
probationer or parolee by the department of corrections or a probation or
parole officer or the custody of a person who has been released to aftercare
supervision under ch. 938 unless the person is in actual custody.[1]
In State v.
Holliman, 180 Wis.2d 348, 509 N.W.2d 73 (Ct. App. 1993), we held that a
person who cut off his electronic monitoring bracelets while in community
residential confinement from the intensive sanctions program to be guilty of an
escape. Collett asserts that because he
was subject to an escape charge that he must necessarily be in custody and be
given sentence credit.
While the general rule
regarding the definition of custody for sentencing purposes involves an
examination of whether the person was in custody so that an escape charge would
lie if the person improperly leaves custody, this test is not applicable to DIS
prisoners. Swadley, 190
Wis.2d at 141-43, 526 N.W.2d at 780.
Although an individual commits an escape when leaving an electronic home
monitoring without permission, this is "irrelevant to the question of
sentence credit." Id. In linking the escape penalty to §
946.42(3)(a), Stats., rather than
Wis. Stat. Ann.
§ 946.42(1)(a) (1996), the legislature was determining the appropriate
penalty for leaving these programs and not determining whether participants in
the DIS program would be given sentence credit. Id.
As in Swadley,
because Wis. Stat. Ann. §
301.048(5) (West Supp. 1996), defines escape with reference to § 946.42(3)(a), Stats., not Wis. Stat. Ann. § 946.42(1)(a) (1996), the legislature's
determination of the penalty for failing to remain in the limits prescribed
under the applicable DIS program is irrelevant to the analysis of sentence
credit. Id. The analysis is whether an individual is in
custody, not whether the individual is subject to an escape charge. Id.
Wisconsin
Stat. Ann. § 946.42(1)(a), (1996), defines custody to include
actual custody in an institution, including numerous types of secured
facilities ranging from juvenile correctional to child caring, as well as the
county jail and the custody of peace officers or guards. We conclude that this list of examples is
not exhaustive but only illustrative.
All of the examples listed involve significant limitations on
liberty. The legislature intended to
give sentence credit for all instances when the individual is under the control
of a state agent. This analysis is in
accord with State v. Cobb, 135 Wis.2d 181, 400 N.W.2d 9 (Ct. App.
1986). "[C]ustody depends upon
physical detention by an institution, institution guard or peace
officer." Id. at
185, 400 N.W.2d at 11. A participant in
the DIS program is entitled to sentence credit only if he is in
"custody."
Cobb
discussed the degree of control that must be exerted over an individual to
sufficiently infringe on the individual's freedom to be considered in
custody. There the court found a DIS
participant was in custody only if he was "locked in at night." Id. at 183-84 n.2, 400 N.W.2d
at 10-11 n.2. The DIS program, however,
allows for a wider variety of restrictions on liberty than just nightly
confinement.[2] In fact, the DIS program has a wide range of
sanctions available which restrict freedom to varying degrees. For example, assignments in the program
could range from community service to confinement in a jail. Further, these restrictions can be used in
conjunction with one another over the course of an individual's placement in
the program with some days or time spent in confinement and other time spent in
one of the other programs. Because of
the variety of restrictions on liberty within the DIS program, we conclude a
bright line rule is impractical. The
restrictions, however, must be so substantial as to amount to being locked in
at night or its equivalent. While each
case must be individually determined, sentence credit is only given if the
restriction on a participant's freedom is the functional equivalent of
confinement. Custody exists only if the
individual's DIS program sufficiently infringes upon his or her freedom to equate
with being under the State's control for a substantial period of time.
The record contains no
evidence of Collett's restrictions in the DIS program. Accordingly, we cannot determine whether
Collett was in custody for purposes of sentence credit. The case is remanded so the trial court can
examine the extent to which Collett's freedom was limited during his year in
the DIS program. The trial court should
make findings as to Collett's program and the extent to which his liberty was
restrained during his year in the DIS program to determine whether Collett was
in custody for sentence credit purposes.
By
the Court.—Order remanded with directions.
[2] Wisconsin Stat. Ann. § 301.048 (West Supp. 1996), provides:
(3) Component phases. (a) The department shall provide
each participant with one or more of the following sanctions:
1. Placement in a Type 1 prison
or a jail, county reforestation camp, residential treatment facility or
community-based residential facility.
The department may not place a participant under this paragraph for more
than one year or, if applicable, the period specified by the court under s.
973.032(3)(b), whichever is shorter, except as provided in s. 973.032(4).
2. Intensive or other
field supervision.
3. Electronic
monitoring.
4. Community service.
5. Restitution.
6. Other programs as
prescribed by the department.
(b) The department may provide the sanctions under par.(a) in any order and may provide more than one sanction at a time. Subject to the cumulative time restrictions under par.(a)1, the department may return to a sanction that was used previously for a participant. A participant is not entitled to a hearing regarding the department's exercise of authority under this subsection unless the department provides for a hearing by rule.