COURT OF APPEALS DECISION DATED AND FILED December 8, 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Petitioner-Appellant, v. David H. Schwarz, Respondent-Respondent. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Steven Hasselkus appeals from a circuit court order affirming the decision of David H. Schwarz, the Administrator of the Department of Administration, Division of Hearing and Appeals (the Division). Hasselkus sought certiorari review of the revocation of parole and extended supervision, and argued that the Department of Corrections could not revoke his extended supervision because he was not then serving the extended supervision components of his sentences. We disagree and conclude that the Department of Corrections acted properly when it revoked both Hasselkus’s parole and his extended supervision. Accordingly, we affirm.
FACTS
¶2 The sentence structure for three convictions is pertinent to this appeal, and we first set out the three sentences and relevant post-sentencing events.
· 1996CF359: In this pre-truth-in-sentencing (TIS) case, Hasselkus was sentenced in 1996 to an indeterminate sentence of sixty months on count one. Sentence was withheld on counts two and three, and Hasselkus was placed on probation for five years on each count, to run concurrently with each other and consecutively to the sentence on count one.[1] Probation was later revoked, and on November 18, 2005, the court imposed concurrent, four-year indeterminate sentences on counts two and three.
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2003CF1040:
On July 15, 2004, Hasselkus was placed on probation for five years. Probation was later revoked, and on December
12, 2005, the
court sentenced Hasselkus to eight years of imprisonment, comprised of three
years of initial confinement and five years of extended supervision, to be
served consecutively to any previous sentence.
· 2005CF2812: On November 30, 2005, the court sentenced Hasselkus to twenty-four months of imprisonment, comprised of twelve months of initial confinement and twelve months of extended supervision.
¶3 In 2006, Hasselkus successfully completed the Challenge Incarceration Program (CIP). On August 30, 2006, Hasselkus was released to parole in the 1996 pre-TIS case and to extended supervision in the other two cases. After Hasselkus violated the rules of supervision by using cocaine, the Department of Corrections revoked his parole and extended supervision. Hasselkus appealed the revocation decision to the Division, and Administrator Schwarz affirmed the revocation.[2]
¶4 Hasselkus then filed a petition for certiorari review of the Division’s decision. The circuit court rejected Hasselkus’s argument that he began serving only his parole sentence after he successfully completed CIP so that the two extended supervision sentences could not later be revoked because he was not then serving them. Hasselkus appeals to this court and renews the argument raised in the circuit court.
DISCUSSION
¶5 Certiorari review of a revocation order
“is limited to four inquiries: (1) whether the [Division] acted within the bounds of its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will, not its judgment; and (4) whether the evidence was sufficient that the [Division] might reasonably make the determination that it did.”
State ex rel. Tate v. Schwarz, 2002
WI 127, ¶15, 257
¶6 In State ex rel. Thomas v. Schwarz,
2007 WI 57, ¶38, 300 Wis. 2d 381, 732 N.W.2d 1, the supreme court held
that “simultaneous revocation of parole and extended supervision is permitted
by the sentencing statutes.” The court
rejected Thomas’s argument that he was required to complete serving his pre-TIS
parole sentence before he could begin serving his extended supervision
sentence.
¶7 The facts of this case mirror those in Thomas. Like Hasselkus, Thomas was serving both an
indeterminate sentence and a determinate sentence. See id., 300
¶8 In his attempts to distinguish Thomas, Hasselkus relies on the dissent in Thomas wherein Justice Bradley contended that the majority’s holding “treating the period of extended supervision as continuous with the period of parole will result in illegal sentences” in “many instances.” See id., ¶71. Of course, statements in a dissent are not controlling.
¶9 Hasselkus also contends that the simultaneous revocation of his parole and extended supervision is improper because such a revocation would result in an illegal increase of the sentences imposed. However, Hasselkus’s calculation of his potential sentences, which he asserts now exceed the original sentences, includes credit for time spent on supervision, rather than time in custody. We agree with the State’s assessment that Hasselkus’s “excess” sentence “is due to the remaining time on his other two consecutive sentences and to time spent on supervision on the street, which is not creditable to reincarceration or reconfinement time after revocation. See Wis. Stat. §§ 302.11(7)(am), 302.113(9)(am).” As we stated in Hasselkus’s appeal from the reconfinement order in circuit court case No. 2003CF1040:
As these statutes indicate, a revoked defendant does not receive credit off his sentence for time spent on extended supervision or parole, as opposed to time spent in actual custody.
State v. Hasselkus, No.
2008AP1879-CR, unpublished slip op. at 5 (WI App
May 6, 2009).
¶10 Because the revocation of both Hasselkus’s parole and extended supervision was sanctioned by Thomas and Collins, and because Hasselkus’s overall sentence was not increased by the revocation, we affirm the circuit court’s order.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] According to the decision of the Administrative Law Judge, Hasselkus completed serving his sentence on count one on September 1, 2003. Hasselkus does not dispute that statement. Thus, Hasselkus began serving his probationary terms on counts two and three on September 1, 2003.
[2] Schwarz modified the length of reincarceration in the pre-TIS case and modified the length of the recommended reconfinement in the two TIS cases. Those modifications are not relevant to this appeal.
[3] In Ashford v. Division of Hearings and Appeals, 177 Wis. 2d 34, 38, 501 N.W.2d 824 (Ct. App. 1993), the court of appeals held that a person serving consecutive sentences was subject to parole revocation for both sentences if a parole violation were committed prior to discharge of the first sentence.
[4]