COURT OF APPEALS DECISION DATED AND FILED January 13, 2009 David
R. Schanker 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 Nos. |
2008AP495-CR |
2002CF690 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Mario D. Thomas, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Mario D. Thomas appeals from reconfinement orders and from orders denying his postdisposition motions. The only issue is whether the circuit court properly denied his requests for sentence credit.[1] We affirm.
BACKGROUND
¶2 Thomas was convicted of three burglary offenses in 2002 and sentenced to three concurrent terms of imprisonment. Thomas served his initial confinement and was released to serve four years of extended supervision in November 2006.
¶3 On December 17, 2006, Thomas was arrested in
¶4 The Department of Administration, Division of Hearings and Appeals revoked Thomas’s extended supervision and Thomas returned to circuit court for a reconfinement hearing. The circuit court ordered Thomas reconfined for concurrent terms of three years, with credit for presentence custody from January 25, 2007, until the date of the reconfinement hearing. Thomas moved for postdisposition relief, seeking additional presentence credit for the period from December 17, 2006, until January 25, 2007. The circuit court denied relief, and this appeal followed.
DISCUSSION
¶5 Sentence credit determinations present questions of law. State v. Odom, 2006 WI App 145, ¶34,
294
¶6
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.
(b) The categories in par. (a) … include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold … placed upon the person for the same course of conduct as that resulting in the new conviction.
Pursuant to this statute, an
offender must satisfy two conditions to be awarded sentence credit: (1) the offender “must have been ‘in custody’
for the period in
question; and (2) the period ‘in custody’ must have been ‘in connection with
the course of conduct for which the sentence was imposed.’” State ex rel. Thorson v. Schwarz,
2004 WI 96, ¶15, 274
¶7 Neither party disputes that Thomas was in custody from the
date of his arrest in
¶8 Thomas places substantial reliance on State v. Presley, 2006 WI App 82,
292
¶9 Unlike the instant case, Presley and Odom do not involve a
dispute over whether a defendant was in custody on both old and new charges
upon arrest. In Presley, the parties
disagreed as to the event that severed the existing connection between both
offenses and the defendant’s custody. Presley,
292
¶10 The State accurately points out that the basis for a relationship between the defendant’s criminal conduct and the defendant’s custody at the time of arrest simply was not relevant in either Presley or Odom and is not disclosed in either decision. Presley and Odom are concerned with determining when an established connection between custody and conduct is severed. Here, our task is to determine when Thomas’s custody originating from a new criminal allegation was first in connection with the older course of conduct for which he was eventually reconfined. See Wis. Stat. § 973.155(1)(a). Neither Presley nor Odom can assist in that inquiry. We must look elsewhere.
¶11 We recently determined that a defendant may receive credit
against a Wisconsin sentence for time spent in out-of-state custody “on [his]
¶12 Thomas offers no argument that Wisconsin authorities issued a
warrant or placed a hold on him on the date of his arrest in
¶13 Thomas asserts that the Division of Hearings and Appeals considered
the
¶14 This court previously established that the phrase “course of
conduct” should be narrowly construed to mean “‘the specific offense or acts
embodied in the charge for which the defendant is being sentenced.’” Thorson, 274
¶15 To the contrary, “‘[t]he sentence [a defendant] is required to
serve upon revocation is the punishment for the crime of which he has
previously been convicted…. Revocation
is thus a continuing consequence of the original conviction from which parole
was granted.’” State v. Beets, 124
378, 369 N.W.2d 382 (1985) (citation omitted, ellipsis in original). This principle is equally applicable to
revocation of extended supervision. Cf. State v. Brown, 2006 WI 131, ¶6, 298
¶16 Moreover, a circuit court may consider many factors, including
uncharged crimes, in making reconfinement decisions.
¶17 The State asserts that the Department first placed an extended
supervision hold on Thomas effective January 25, 2007. Thomas does not dispute that assertion, and
we deem the point conceded. See State v. Peterson, 222
reconfinement for
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Appeal No. 2008AP494-CR arises from circuit court case No. 2001CF5821 and involves one count of burglary. Appeal No. 2008AP495-CR arises from circuit court case No. 2002CF690 and involves two counts of burglary. Thomas moved for sentence credit in each case and the circuit court entered identical orders denying relief in both cases. We granted Thomas’s motion to consolidate the two cases for purposes of appeal.
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.