PUBLISHED OPINION
Case No.: 96-2051-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SCOTT A. ABBOTT,
Defendant-Appellant.†
Submitted on Briefs: November 11, 1996
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: December 27, 1996
Opinion Filed: December
27, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If
"Special", JUDGE: WAYNE J. MARIK
so indicate)
JUDGES: Anderson, P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Patricia A. Nitz of Harvey & Nixon,
Ltd. of Racine and Losey and Harrold, Inc. of Kenosha.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of Anne W. Fee.
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-2051-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
SCOTT
A. ABBOTT,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Racine County: WAYNE J. MARIK, Judge. Affirmed and remanded with directions.
Before
Anderson, P.J., Brown and Snyder, JJ.
ANDERSON,
P.J. The defendant, Scott A. Abbott, appeals from
the second amended judgment of conviction entered on July 8, 1996, for battery
as a habitual offender, contrary to §§ 940.19(1) and 939.62, Stats.
The trial court sentenced Abbott to sixty days in the county jail with
sentence credit from September 2 through September 14, 1995, and December 12
through December 22, 1995. Abbott was
serving a previous sentence under the Department of Intensive Sanctions (DIS)
when he committed the battery, and he now seeks additional sentence credit for
the eighty-nine day DIS sanction. Because
the eighty-nine day sanction was imposed for Abbott’s violation of the rules
applicable to DIS, and not as part of the presentence custody relating to the
battery charge for which presentence credit is sought, we affirm the trial
court’s judgment of conviction and remand to permit the trial court to issue an
amended judgment of conviction.
The
facts pertinent to this appeal are not in dispute. In September 1994, Abbott was convicted of fleeing an officer and
bail jumping, both felonies, for which he served thirteen months in the
Division of Corrections. He was then
administratively transferred to DIS where he completed a sixteen-week alcohol
program. After completion of the
alcohol program, but still under DIS supervision, Abbott was placed on electronic
monitoring and resided at his uncle’s home.
According
to the criminal complaint, on September 2, 1995, David Lawrence, Abbott’s
uncle, returned home from church with his brother, Thomas Lawrence, and a
friend, Pat Lesniewski, when they found Abbott “sitting in the backyard
drinking beer and getting high.” David
advised Abbott that he was in violation of his home monitoring rules and
indicated that “his conduct would not be tolerated at the house.” Abbott became angry and pushed and then
punched David approximately three times in the face. David and Thomas struggled with Abbott and eventually pinned him
down until officers arrived.
On
September 5, 1995, Abbott was charged with battery as a habitual offender, in
violation of §§ 940.19(1), 939.51(3)(a) and 939.62, Stats., which underlies this appeal. On September 6, Abbott was transferred to
the Racine County Correctional Institute (RCCI). Thereafter, Abbott was given a DIS sanction of eighty-nine days
which was served from September 14, 1995, through December 12, 1995.
In
the meantime, Abbott pleaded no contest and was adjudged guilty of the charge
of battery as a habitual offender on November 30, 1995. The trial court sentenced him to sixty days
in the Racine county jail with sentence credit of six days.[1] Abbott filed a motion to reconsider the
sentence credit. He sought additional
credit from the time he was initially picked up until the completion of his
battery sentence, including the DIS sanction.
The trial court concluded that “the time spent in custody during the
duration of the sanction is not related to the new course of conduct or the new
arrest [and] ¼ it is not available as sentence credit toward the new
sentence.” The trial court further
determined that Abbott was entitled to sentence credit from September 2 through
September 14, 1995, and December 12 through December 22, 1995, and ordered that
the sentence credit be modified accordingly.
Abbott appeals.
Abbott
maintains that his DIS sanction resulted from the same conduct for which the
criminal complaint was issued, thus entitling him to sentence credit including
the eighty-nine day sanction. Sentence
credit is authorized by § 973.155(1)(a), Stats.,
which reads in part: “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 Abbott has received all of the
credit to which he is entitled requires an application of the statute to the
undisputed facts. State v.
Collett, No. 96-1952-CR, slip op. at 2 (Wis. Ct. App. Dec. 3, 1996,
ordered published Jan. 28, 1997). This
involves a question of law that we review without deference to the trial
court. Id.
Although
the issue here, whether Abbott’s custody for the DIS sanction at RCCI was in
connection with the battery for which sentence was imposed, is a matter of
first impression, its resolution is governed by State v. Beets,
124 Wis.2d 372, 369 N.W.2d 382 (1985), and State v. Riley, 175
Wis.2d 214, 498 N.W.2d 884 (Ct. App. 1993).[2] In Beets, the court rejected
the defendant’s argument that because his new crime of burglary led to the
probation revocation, the subsequent sentence following revocation was “at
least partly ‘in connection with’” that new crime. Beets, 124 Wis.2d at 376, 369 N.W.2d at 384. Rather, the court held that confinement
resulting from prior criminal activity “‘is a continuing consequence of the
original conviction’” that is “not related or connected to the burglary course
of conduct.” Id. at 378,
369 N.W.2d at 384-85 (quoted source omitted).
In
Riley, we extended the rationale of Beets to
conditions of probation. Riley,
175 Wis.2d at 220-21, 498 N.W.2d at 886.
There we held that the defendant was not entitled to credit against his
new sentence, operating a motor vehicle without the owner’s consent, for the
time he was confined as a condition of the earlier probation. Id. at 221, 498 N.W.2d at
886. Since Beets tells us
that confinement resulting from prior criminal activity is a continuing
consequence of the original conviction, we also determined that § 973.155(1), Stats., does not authorize credit for a
term of confinement ordered for that prior criminal activity irrespective of
whether that confinement is a condition of probation or the result of a
sentence after revocation of probation.
Riley, 175 Wis.2d at 220-21, 498 N.W.2d at 886.
We
conclude that the same rationale as that expressed in Beets and Riley
should be applied here as well. As in Beets,
there is a temporal connection in this case because it was the battery arrest
that triggered the DIS sanction on Abbott.[3] Thus, from September 2 to September 6,
“there was a relationship—not between the offenses but between the causes of
the initial confinement on two separate charges.” Beets, 124 Wis.2d at 378, 369 N.W.2d at 385. The battery charge initiated the DIS review
under Wis. Adm. Code § DOC 333.08
that resulted in the eighty-nine day sanction.
Nevertheless,
any connection which might have existed between custody for the potential DIS
offenses and the battery was severed when Abbott was transferred to RCCI. From that time on, Abbott was in RCCI under
DIS; and whether he was also awaiting trial on the battery charge is irrelevant
because his freedom from confinement was not in any way related to the
viability of the battery charge. His
ability to make bail on the battery charge became immaterial. And he would still have been in confinement
even if the battery charge had been dismissed.
Thus, there is no logical reason why credit should be given on the
battery charge for his service time in RCCI because of his prior DIS sentence
for the felonies. See Beets,
124 Wis.2d at 379, 369 N.W.2d at 385; see also State v. Gavigan,
122 Wis.2d 389, 394, 362 N.W.2d 162, 165 (Ct. App. 1984).
We
further conclude that the trial court erroneously granted Abbott sentence
credit from the day of his transfer to RCCI, September 6, 1995, to the day he
began to serve the eighty-nine day sanction, September 14, 1995. Abbott's transfer to RCCI was the result of
his being assigned to the Intensive Sanctions Program and, as we have
explained, he was in custody and he was serving a previously imposed
sentence. He is not entitled to any
credit for this period toward the sentence imposed for battery because the days
spent at RCCI were not in connection with the battery. Accordingly, we remand to the trial court
with directions to issue an amended judgment consistent with this opinion.
By
the Court.—Judgment affirmed and
remanded with directions.
[1] Abbott was never revoked or discharged from
the DIS program. His DIS agent, Heffel,
approved Abbott for a transfer to Sparta, Wisconsin, where he will serve his
sentence for the battery conviction which has been stayed pending resolution of
this appeal. Abbott was released on a
$500 signature bond.
[2] Whether Abbott was in custody is not at
issue. The record clearly establishes
that Abbott was contained within RCCI from the date of transfer on September 6
and when he served the DIS sanction from September 14 through December 12,
1995. Physical detention by an
institution constitutes custody, as that term is defined in § 946.42(1)(a), Stats., amended by 1995 Wis. Act 154
§ 1, as well as State v. Collett, No. 96-1952-CR, slip op.
at 5 (Wis. Ct. App. Dec. 3, 1996, ordered published Jan. 28, 1997).
[3] Although Abbott believes the DIS sanction
resulted from the battery, the record does not make this clear and we are not
convinced. According to the criminal
complaint, Abbott was drinking and getting high prior to the actual battery. All three are considered major violations of
the DIS rules of supervision and may have been determinative of the length of
the sanction as well. See Wis. Adm. Code § DOC 303.12; § DOC
333.07(2)(y) and § DOC 333.08(5).