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COURT OF APPEALS
DECISION
DATED AND FILED
February 1, 2011
A.
John Voelker
Acting 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
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IN COURT OF
APPEALS
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DISTRICT III
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State of Wisconsin,
Plaintiff-Respondent,
v.
Joseph Allen Nitchals,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Pierce County: ROBERT
W. WING, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Joseph Nitchals was convicted
of fleeing a traffic officer and possession of methamphetamine. Nitchals moved for postconviction relief, requesting
additional sentence credit. The circuit
court entered an amended judgment of conviction, awarding him credit for 826
days of presentence custody. On appeal,
Nitchals argues he is entitled to credit for an additional seventy-seven days. We disagree and affirm.
BACKGROUND
¶2 Nitchals was charged in Pierce County
with fleeing a traffic officer and possession of tetrahydrocannabinols. While those charges were pending he was charged
in St. Croix County with possession of methamphetamine
and possession of drug paraphernalia. The
two cases were consolidated in Pierce
County. Nitchals pled guilty to fleeing a traffic
officer and possession of methamphetamine, and the remaining charges were
dismissed. The court withheld sentence
and placed Nitchals on probation for three years. After Nitchals’s probation was revoked, the
court imposed consecutive sentences of eighteen months’ initial confinement and
two years’ extended supervision on each count. The court initially awarded Nitchals 620 total
days of sentence credit.
¶3 Nitchals moved for postconviction relief, arguing he was
entitled to additional sentence credit. After
a hearing, the court granted Nitchals credit for an additional 206 days. However, the court denied credit for seventy-seven
days Nitchals was in custody under a cash bond in an unrelated Pierce County
case. While Nitchals was in custody
under the cash bond, a warrant had been issued for his arrest in the St. Croix County case. Nitchals argued that, because of the
outstanding St. Croix County warrant, the seventy-seven days he spent in custody
in Pierce County
were in connection with the St.
Croix County
case. The circuit court disagreed, and Nitchals now
appeals.
DISCUSSION
¶4 Determining the proper amount of sentence credit in this case
requires us to apply Wis. Stat. § 973.155
to undisputed facts. This is a question
of law that we review independently. State
v. Dentici, 2002 WI App 77, ¶4, 251 Wis. 2d 436, 643 N.W.2d 180.
¶5 “[T]o receive sentence credit, an offender must establish: (1) that he or she was in ‘custody,’ and (2)
that the custody was in connection with the course of conduct for which the
sentence was imposed.” Id.,
¶5 (citations omitted); Wis. Stat. § 973.155(1)(a). The connection between the custody and the
sentence imposed must be factual; a mere procedural connection will not
suffice. State v. Johnson, 2009 WI
57, ¶33, 318 Wis. 2d
21, 767 N.W.2d 207. Here, it is
undisputed that Nitchals was in custody during the seventy-seven-day period at
issue. The question is whether that
custody was in connection with the sentence imposed in the St. Croix County
case.
¶6 Nitchals argues his custody in Pierce County was connected to
his St. Croix County case because of the outstanding St. Croix County warrant.
He concedes that “he was held in custody in Pierce
County throughout this period at least
in part due to the cash bond issued in the unrelated [Pierce County]
charges.” However, he argues, “It is
undisputed that if the cash bond had either been posted by Nitchals or reduced
to a signature bond, Nitchals would have remained in custody until the St.
Croix Court … quashed the warrant.” He contends
that, because of the St. Croix
County warrant, he “was
not free to leave the jail.”
Essentially, he argues he is entitled to sentence credit because his
seventy-seven days in Pierce County jail were at least partially caused by the St. Croix County warrant.
¶7 However, the record does not support Nitchals’s
assertion. There is no indication in
the record that Nitchals’s custody in Pierce
County was even partially due to the St. Croix County warrant. Nothing in the record indicates that the
Pierce County Circuit Court was aware of the warrant at any time before
September 26, 2005, the day the warrant was quashed. Neither the record nor CCAP
shows that St. Croix County authorities filed any detainer or other notice
requesting that Pierce
County authorities keep
Nitchals in custody if he satisfied the cash bond or if the bond was converted to a signature bond. There is no indication that anyone served the
warrant on Nitchals or arrested him under the warrant’s authority during his
custody in Pierce
County. In short, the record does not show that Nitchals
was ever held in response to the St.
Croix County
warrant. There is simply no connection
between the St. Croix County warrant and the time Nitchals spent in custody
under the cash bond in Pierce
County.
¶8 Nitchals argues our supreme court’s recent decision in State
v. Carter, 2010 WI 77, 327 Wis. 2d
1, 785 N.W.2d 516, supports his position.
Carter was charged with first-degree recklessly endangering safety in Milwaukee County
and a warrant was issued for his arrest.
Id.,
¶¶58-59. He was subsequently arrested in
Chicago, based on both the Wisconsin warrant and
an Illinois
probation violation warrant. Id., ¶¶62. After Carter was convicted in the Milwaukee County
case, he sought sentence credit for the time he spent in custody in Illinois. Id.,
¶¶10-11. The supreme court accepted the
circuit court’s finding that Carter’s presentence custody in Illinois was
“custody resulting in part from the Wisconsin warrant,” noting that the
Illinois arrest report listed the Wisconsin warrant as the first basis for the
arrest. Id., ¶¶62, 79. The court therefore concluded Carter was
entitled to sentence credit because there was a factual connection between the
presentence custody and the Wisconsin
sentence. Id., ¶78.
¶9 Nitchals argues that Carter allows sentence credit in his
case because, as long as his custody flowed at least in part from the St. Croix
County warrant, “[t]he fact that there were additional reasons [he] was held in
custody is irrelevant.” This argument is
fatally flawed because it rests on the unsupported assumption that Nitchals’s
custody was even partially connected with the St. Croix County
warrant. As already discussed, the
record does not show any factual connection between the warrant and Nitchals’s
custody. See supra, ¶7.
¶10 The sentence credit in Carter depended on a key fact
missing from Nitchals’s case: the Illinois
authorities actually arrested Carter and held him in custody based on the
outstanding Wisconsin warrant. Carter, 327 Wis. 2d 1, ¶62. In contrast, the record in this case does not
show any exercise of custody by Pierce
County authorities in response to the St. Croix County warrant. Carter does not hold that the mere
existence of an outstanding warrant establishes a factual connection with
custody imposed while the warrant is outstanding. Rather, the custody must be imposed at least
partially in response to the warrant. Id., ¶¶62, 78; accord
State
v. Villalobos, 196 Wis.
2d 141, 148, 537 N.W.2d 139 (Ct. App. 1995) (“unexecuted
arrest warrant” not sufficient to establish custody for purposes of awarding
sentence credit). Because there is no
evidence that Nitchals’s Pierce County custody was imposed even partially in response
to the St. Croix
County warrant, Nitchals
is not entitled to additional sentence credit.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.