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COURT OF APPEALS DECISION DATED AND FILED September 25, 2002 Cornelia G. Clark Clerk of Court of Appeals |
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2002 WI App 258 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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Cir.
Ct. No. 02-CV-808 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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State of Wisconsin ex rel.
Vonnie D. Darby, Petitioner-Appellant, v. Jon Litscher, Secretary,
Department of Corrections, and Kenneth
Morgan, Warden, Racine Correctional
Institution, Respondents-Respondents. |
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APPEAL from an order of the circuit court for Racine County: emmanuel vuvunas, Judge. Affirmed.
Before Nettesheim, P.J., Brown and Anderson, JJ.
¶1 ANDERSON, J. Vonnie D. Darby appeals pro se from a trial court order quashing his writ of habeas corpus. He claims that the Department of Corrections (DOC) erred in its computation of his confinement time by failing to give him good time credit pursuant to Wis. Stat. §§ 302.43[1] and 303.19(3) (1999-2000)[2] for his misdemeanor convictions. He contends that due to this miscalculation, he is being illegally incarcerated because he had a right to be released from his misdemeanor sentences without being subject to parole supervision or reincarceration for parole violations. We disagree and affirm the order quashing the writ.
¶2 The relevant facts are undisputed. Prior to April 19, 1993, Darby was serving time in the Wisconsin
state prisons. On April 19, 1993, Darby
was sentenced to the state prisons for five counts of misdemeanor theft in
violation of Wis. Stat. § 943.20(1)(a),
all to run consecutively and consecutive to the sentence he was already
serving. This sentence was enhanced
pursuant to Wis. Stat. § 939.62(1)(a)
and (2), which governs habitual criminal sentencing.
¶3 In 1998, we held that the enhanced sentence was void as a
matter of law because the State did not prove Darby’s prior convictions or have
him admit to them as is required under Wis.
Stat. § 973.12(1). State
v. Darby, No. 97-2095, unpublished slip op. (Wis. Ct. App. April 8,
1998). We commuted Darby’s sentence to
the maximum permitted on five misdemeanor convictions of theft and ordered that
the trial court amend the judgment of conviction on remand. Id.
¶4 Additionally, in 1993, 1996, and 1997, Darby
accumulated other misdemeanor convictions.
And, in 1997, he was sentenced to the state prisons for two additional
felony convictions.
¶5 On May 16, 2000, the DOC released Darby on his mandatory
release date pursuant to Wis. Stat. § 302.11.[3] On November 10, 2000, Darby was
reincarcerated for violation of parole.
The DOC determined that Darby’s amount of time available for
reincarceration, calculated from his felony and misdemeanor convictions, was two
years, six months and eleven days. The
DOC noted the serious nature of Darby’s parole violation (a battery charge) and
recommended that he serve 100% of the available time for reincarceration. The administrative law judge ordered that
Darby’s parole supervision be revoked with regard to his misdemeanor and felony
sentences that had available time for reincarceration.[4]
¶6 On June 3, 2002, Darby filed a petition for writ of habeas corpus in the trial court claiming he was being illegally incarcerated. The State filed a motion to quash Darby’s writ; the trial court granted the State’s motion. Darby appeals.
¶7 This matter requires the interpretation of statutory
law. The interpretation and application
of a statute to undisputed facts presents a question of law subject to our de
novo review. State v. Setagord,
211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). The purpose of statutory interpretation is to discern the intent
of the legislature. Id. at
406. To do so, we first consider the
language of the statute. Id. If the language of the statute
clearly and unambiguously sets forth the legislative intent, we apply that to
the case at hand and do not look beyond the statutory language to ascertain its
meaning. Id.
¶8 On appeal, Darby renews his challenge to his incarceration. First, Darby seems to suggest that a clerical error caused the trial court to sentence him illegally to the wrong location. He claims that in the amended judgment of conviction (discussed above), “the Ozaukee Co. circuit court clerk, (using Darby’s original judgment of conviction as a gilde [sic]) incorrectly and without legal authority, put Waupun prison as the location for the petitioner to be delivered to.” From this argument, we infer that Darby is claiming that but for the circuit court clerk “incorrectly and without legal authority” putting “Waupun” as the location for his confinement, he would be a free man because the clerk was supposed to put down a county jail as the location for his confinement. We are not persuaded.
¶9 Initially we note that there is no indication in the record that Darby challenged his amended judgment of conviction on this basis. Furthermore, at the time the trial court entered the amended judgment of conviction, Darby was serving a sentence greater than one year in the Wisconsin state prisons for his 1997 felony convictions. Wisconsin Stat. § 973.03(2) requires:
A defendant sentenced to the Wisconsin state prisons and to a county jail or house of correction for separate crimes shall serve all sentences whether concurrent or consecutive in the state prisons.
Thus, Darby was required to serve all sentences in the state prisons. Moreover, the amended judgment of conviction contains the signature of the trial court directly below the order directing that Darby be delivered into the custody of the DOC located in the city of Waupun. Under § 973.03(2), there was not a clerical error, nor was there a judicial error.
¶10 Next, Darby contends that the DOC erred in its computation of his release date on his misdemeanor sentences and that he had a right to be released from his misdemeanor sentences without being subject to parole supervision or reincarceration for parole violations. The substance of Darby’s argument is that the DOC applied the wrong statutes to his case. We disagree.
¶11 The State correctly argues that this case is controlled by Wis. Stat. § 302.11, which governs mandatory release on parole and revocation of parole for inmates of the Wisconsin state prisons.[5] The provisions of § 302.11 are not limited to inmates who are felons. Id. The provisions of § 302.11 do not exclude inmates who are serving part of their sentence for misdemeanor offenses. See id. Thus, we agree with the State that the provisions of § 302.11, including § 302.11(7)(a), are applicable to Darby, who was an inmate of the Wisconsin state prisons.
¶12 Wisconsin Stat. § 302.11(1) provides that an inmate’s mandatory release date is established at two-thirds of the inmate’s sentence. Section 302.11(3) instructs that all consecutive sentences shall be computed as one sentence. Section 302.11(6) states that an inmate released on parole through mandatory release is subject to all conditions and rules of parole until the expiration of his or her sentence or until discharged by the DOC. Finally, § 302.11(7) provides that when a parolee is revoked, the parolee may be returned to prison for up to the length of the remainder of his or her sentence, which is: “the entire sentence less time served in custody prior to parole.” Sec. 302.11(7)(a).
¶13 Wisconsin Stat. § 302.11(7)(a) does not distinguish between the portion of an original sentence for felony offenses and the portion of an original sentence for misdemeanor offenses. We previously acknowledged this lack of distinction in Ashford v. Division of Hearings & Appeals, 177 Wis. 2d 34, 42, 501 N.W.2d 824 (Ct. App. 1993). In Ashford we noted:
The remainder of the sentence is equal to the total sentence minus the time spent in custody prior to parole…. If consecutive sentences are computed as one continuous sentence, the remainder of the sentence referred to in sec. 302.11(7)(a) must be the remainder of the aggregate sentence. (Emphasis added.)
Thus, the
remainder of the aggregate sentence necessarily includes remainders from all
offenses, whether felony or misdemeanor.
Certainly the legislature did not intend to require the DOC to
separately administer good time depending upon the classification of the crimes;
this would be an administrative debacle.
Instead, we conclude that a prisoner is subject to the statutes and
administrative rules that govern the facility in which he or she is
incarcerated. The place of the
confinement, rather than the nature of the underlying conviction, controls the
question of good time.
¶14 From our holding, it follows that Darby cannot rely upon Wis. Stat. § 302.43 to succeed on appeal because it applies to “[e]very inmate of a county jail.” Darby was not an inmate of a county jail at the time he was sentenced in these matters; Darby was a prisoner in the state prisons. Section 302.43 is clear on its face and applies to only inmates of a county jail. The same logic applies to Darby’s reliance on Wis. Stat. § 303.19(3). Section 303.19(3) applies only to inmates of a house of corrections. Darby was not an inmate of a house of corrections.
¶15 Finally, we address the constitutional issues raised by Darby. His cruel and unusual punishment argument was inadequately briefed. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (an appellate court can decline to address issues “inadequately briefed”); State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) (“An appellate court is not a performing bear, required to dance to each and every tune played on appeal.”). As to his equal protection claim, the distinction of his treatment versus the treatment of a conventional misdemeanant held in a county jail or a house of corrections is a rational distinction because Darby is a more aggravated kind of offender. Moreover, mere inequity, standing alone, cannot serve as the basis for an equal protection complaint. State v. Lindsey, 203 Wis. 2d 423, 433-34, 554 N.W.2d 215 (Ct. App. 1996).
¶16 The trial court did not err in quashing Darby’s writ of habeas corpus; his incarceration is entirely legal.
By the Court.—Order affirmed.
