COURT OF APPEALS DECISION DATED AND RELEASED August 31, 1995 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1291-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
REGIES MUNDY,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Dane County:
MICHAEL B. TORPHY, JR., Judge. Affirmed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Regies Mundy appeals from an order denying his motion
for sentence credit under § 973.155, Stats. Because Mundy was sentenced in accordance
with a plea agreement that did not contemplate any credit, we conclude that
Mundy is estopped from now claiming sentence credit. Therefore, we affirm.
While on parole for
bail-jumping, Mundy committed three new offenses. A criminal complaint, charging Mundy with attempted first-degree
intentional homicide while using a dangerous weapon, armed robbery and
possession of a firearm by a felon, was filed on January 22, 1993. All three counts contained repeater
allegations under § 939.62, Stats. Under the criminal complaint, Mundy faced a
possible seventy-three years in prison.
Mundy was taken into custody on a parole hold on February 22, 1993. An initial appearance was held on February
23, 1993, and cash bail was set. The
State does not dispute Mundy's assertion that his parole was revoked on April
15, 1993.
The State and Mundy
reached a plea agreement. The State
filed an Amended Information that reduced the attempted first-degree
intentional homicide charge to first-degree reckless injury and dropped the
repeater allegations. Mundy's potential
imprisonment was reduced to thirty-seven years. The State and Mundy also reached a joint sentencing
recommendation totaling eighteen years, to be served concurrent with Mundy's
prior sentence. The parties also
recommended that the sentence "begin immediately." On July 7, 1993, Mundy entered no contest
pleas to the Amended Information, and bail was revoked pending sentencing.
Mundy was sentenced on
September 15, 1993. After stating that
it would accept the parties' joint sentencing recommendation, the court
inquired into possible sentence credit.
The prosecutor stated his belief that Mundy was not entitled to any
credit and that the parties had agreed that "the 18 years begin
immediately from pronouncement."
Defense counsel acquiesced in the prosecutor's statement. The court then sentenced Mundy to twelve
years on count 1, six years on count 2, consecutive to count 1, and two years
on count 3, concurrent with count 2.
The court then stated, "There is as I understand the agreement no
credit. Sentence is to commence
forthwith ...." Mundy did not
disagree with the court's description of the plea agreement.
On appeal, Mundy argues
that he is entitled to sentence credit "for all time served subsequent to
the setting of cash bail," or in other words, from February 23, 1993
until September 15, 1993. We agree with
the State that the plea agreement provided that Mundy would receive no sentence
credit and that Mundy is estopped from now seeking credit.[1]
Judicial estoppel
precludes a party from asserting one position before the trial court and a
contrary position before this court. See
In re H.N.T., 125
Wis.2d 242, 253, 371 N.W.2d 395, 400 (Ct. App. 1985). "It is contrary to fundamental principles of justice and
orderly procedure to permit a party to assume a certain position in the course
of litigation which may be advantageous, and then after the court maintains
that position, argue on appeal that the action was error." State v. Gove, 148 Wis.2d 936,
944, 437 N.W.2d 218, 221 (1989).
The parties agreed that
the sentence "commence forthwith."
The trial court stated that it understood that the parties had agreed
that Mundy would not receive any sentence credit. As could be expected in light of the overall favorable nature of
the plea agreement, Mundy did not dispute the court's statement. Judicial estoppel has been applied when an
otherwise mandatory statutory requirement was waived by agreement. See State v. Hardwick,
144 Wis.2d 54, 60-61, 422 N.W.2d 922, 925 (Ct. App. 1988) (parties had agreed
to an extension of probation without the statutorily required determination of
good cause). Because Mundy agreed that
he would receive no sentence credit as part of a plea agreement, he is estopped
from arguing to this court that the trial court erred in not awarding credit.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.