PUBLISHED OPINION
Case Nos.: 95-1234
& 95-1235-CR
Complete Title
of Case:
State of Wisconsin,
Plaintiff-Respondent,
v.
Arthur Beiersdorf,
Defendant-Appellant.
Submitted on Briefs: December 3, 1996
Oral Argument: ----
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: February 4, 1997
Opinion Filed: February
4, 1997
Source of APPEAL Appeal from judgment and
an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: DAVID HANSHER
so indicate)
JUDGES: Fine, Schudson and Curley, JJ.
Concurred: ---
Dissented: ---
Appellant
ATTORNEYSFor the defendant-appellant the cause was submitted on
the briefs of Mark Lukoff, assistant state public defender.
Respondent
ATTORNEYSFor the plaintiff-respondent the cause was submitted on
the briefs of James E. Doyle, attorney general, and James M. Freimuth,
assistant attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED February
4, 1997 |
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 95-1234-CR
95-1235-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
State
of Wisconsin,
Plaintiff-Respondent,
v.
Arthur
Beiersdorf,
Defendant-Appellant.
APPEAL
from judgments and an order of the circuit court for Milwaukee County: DAVID A. HANSHER, Judge. Affirmed.
Before
Fine, Schudson and Curley, JJ.
SCHUDSON,
J. Arthur Beiersdorf appeals from the
judgments of conviction for second-degree sexual assault of a child and bail
jumping, and from the trial court's order denying his motion for postconviction
relief. He argues that the trial court
erred by not applying the forty-four days of sentence credit he received on the
stayed sentence for bail jumping to the prison sentence he received for sexual
assault. He also argues that the trial
court erred in ordering him to pay restitution for genetic testing. We affirm.
I. BACKGROUND
On
August 26, 1994, at his initial appearance on a charge of felony second-degree
sexual assault of a child under age sixteen, Beiersdorf was released on a
$10,000 personal recognizance bond. On
September 20, 1994, Beiersdorf returned to court and pled guilty to the sexual
assault charge. Sentencing was
adjourned.
On
October 20, 1994, Beiersdorf was charged with bail jumping and two counts of
misdemeanor sexual intercourse with a child over age sixteen. The complaint alleged that while Beiersdorf
was free on bond in the felony sexual assault case, he violated terms of his
bond by having contact and sexual intercourse with the victim of that offense. Bail was set at $10,000 cash. Failing to post the cash bail, Beiersdorf
remained in custody.
On
December 2, 1994, pursuant to a plea agreement, Beiersdorf pled guilty to the
bail jumping charge; the trial court granted the State's motion to dismiss the
two misdemeanor sexual intercourse charges.
For second-degree sexual assault, the trial court sentenced Beiersdorf
to ten years in prison. For bail
jumping, the trial court sentenced Beiersdorf to five years in prison but
stayed the latter sentence and placed him on probation for five years,
consecutive to the ten year sentence, to begin, as the trial court told
Beiersdorf, “after the prison term was served.
Terms and conditions of probation, and that will kick in after you're
paroled.” On the bail jumping stayed
sentence, the trial court awarded forty-four days credit for the time
Beiersdorf had remained in custody between his bail jumping arrest and
sentencing. The court also ordered
that, “as a term and condition of probation,” Beiersdorf pay $250 reimbursement
for the cost of the genetic testing performed as a result of the original
sexual assault charge.
II. SENTENCE CREDIT
Beiersdorf
argues that he is entitled to forty-four days credit against his ten-year
sentence for second-degree sexual assault of a child. The parties agree that our analysis must begin with
§ 973.155(1)(a), Stats.,
which provides:
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 waiting imposition of
sentence after trial.
Denying Beiersdorf's postconviction motion, the trial
court concluded that he was not entitled to forty-four days credit on the
sexual assault offense because he had been released on bond on that charge and,
therefore, was not “in custody in connection with” the sexual assault
offense. We agree.
The
application of § 973.155(1)(a), Stats.,
to undisputed facts presents a question of law this court reviews de novo. State v. Collett, ____ Wis.2d
____, ____, 558 N.W.2d 642, 643 (Ct. App. 1996). For credit to be awarded, two requirements must be
satisfied: (1) the defendant 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.” Section
973.155(1)(a). In this case, Beiersdorf
unquestionably was “in custody” from October 19, 1994, when he was arrested for
bail jumping, to December 2, 1994, when he was sentenced for bail jumping and
second-degree sexual assault. The
issue, therefore, is whether Beiersdorf's forty-four days of custody were “in
connection with the course of conduct for which [his ten-year sexual assault] sentence
was imposed.”
Beiersdorf
argues that “common sense requires” that he be awarded the credit against his
sexual assault prison sentence. He
contends that it is “absurd” that he “would have to violate the consecutive
probation, have that probation revoked, and begin serving the imposed and
stayed sentence before he would receive 44 days jail-time credit.” We disagree. For any number of sound reasons, a sentencing court may decide to
stay a sentence and order probation on one count consecutive to incarceration
on another count. Beiersdorf offers no
authority to suggest that when a sentencing court does so, it must shift credit
due on the stayed sentence to the imposed sentence.
Beiersdorf
asserts that State v. Boettcher, 144 Wis.2d 86, 423 N.W.2d 533
(1988), requires the credit he seeks. Again, we disagree. Boettcher
addressed a different sentence-credit issue and, if anything, Boettcher
actually supports the State's position.
It examined whether “dual sentence credit” should be applied to two
consecutive sentences—one stemming from a crime for which the defendant had
been placed on probation, and the other stemming from a subsequent crime
resulting in revocation of the prior probation.[1] Id. at 87, 423 N.W.2d at
534. It explained that “in connection
with the course of conduct for which sentence was imposed” under
§ 973.155(1)(a), Stats.,
means the same thing as the corresponding language in 18 U.S.C.
§ 3568: “‘in connection with the
offense or acts for which sentence was imposed.’” Id. at 93, 423 N.W.2d at 536. Denying dual credit, Boettcher
thus clarified that § 973.155(1)(a) provides sentence credit only for the
custody connected to the charges to which the custody was specifically linked.
Therefore,
although § 973.155(1)(a), Stats.,
also refers to “confinement related to an offense for which the offender is
ultimately sentenced,” and although in rather obvious ways Beiersdorf's bail
jumping was figuratively “related to” his second-degree sexual assault, his
“custody” literally was not “confinement related to” the sexual assault for
purposes of sentence credit under § 973.155(1)(a), Stats. Although a
defendant may perceive that custody is “at least partly ‘in connection with’”
another crime, that does not mean that the custody, for credit purposes, is
related to “the course of conduct for which sentence was imposed.” See State v. Beets, 124 Wis.2d
372, 376, 369 N.W.2d 382, 384; see also State v. Abbott,
____ Wis.2d ____, 558 N.W.2d 927 (Ct. App. 1996).
Accordingly,
we conclude that because Beiersdorf posted a personal recognizance bond on the
felony sexual assault charge and remained on that bond until his sentencing,
and because he was in custody on cash bail only on the subsequent bail jumping
and sexual intercourse charges, the forty-four days in custody, under
§ 973.155(1)(a), Stats., was
“custody” only “in connection with the course of conduct for which sentence was
imposed” and stayed on the bail jumping.[2]
III. PAYMENT FOR GENETIC TESTING
According
to the criminal complaint charging Beiersdorf with second-degree sexual assault
of a child, blood samples from Beiersdorf and his victim, along with a tissue
sample from the fetus being carried by his victim, were sent for DNA testing to
the Memorial Blood Center of Minneapolis.
Testing established the overwhelming probability that Beiersdorf was the
father of the fetus. At the conclusion
of sentencing, the prosecutor asked, “Would the Court be willing to order
reimbursement for the cost of the genetic testing that was done in this
case?” The court responded, “He will be
in prison awhile [sic] but, yes, as a term and condition of probation, I'll do
that.” Beiersdorf argues that the trial
court had no authority to order him “to pay for genetic tests, either as a
cost, restitution, or as a condition of probation.”
Denying
Beiersdorf's postconviction motion, the trial court explained:
The DNA surcharge[3]
was not imposed as a “cost” under sec. 973.06, Wis. Stats.; it was imposed as
restitution which is reasonably related to the rehabilitation of the
defendant. Its imposition reflects a
cost and encumbrance which the government has incurred as a direct result of
the defendant's commission of a crime. Given
the broad authority of the court to impose restitution as a reasonable condition
of the defendant's sentence and probation/parole, the court declines to vacate
its present order.
The
State agrees with Beiersdorf that the cost of genetic testing is not assessable
against him as “restitution” under § 973.20(1), Stats.,[4]
because neither the State nor the testing facility is a “victim” of the crime
under that statute. State v.
Evans, 181 Wis.2d 978, 983-84, 512 N.W.2d 259, 261 (Ct. App. 1994).[5] The State contends, however, that the trial
court did have authority to order Beiersdorf to pay for the DNA testing as a
condition of probation under § 973.09(1)(a), Stats.,[6]
and as costs under § 973.06(1)(c), Stats.[7] We agree.
A. As a condition of probation under
§ 973.09(1)(a), Stats.
Section
973.09(1)(a), Stats., provides a
trial court “broad discretion to place a convicted person on probation and to
‘impose any conditions which appear to be reasonable and appropriate’ on that
probation.” State v. Heyn,
155 Wis.2d 621, 627, 456 N.W.2d 157, 160 (1990) (quoting § 973.09(1)(a))
(restitution of $4,000 for burglary alarm installation reasonable and
appropriate where burglary reduced victim's sense of security). Under § 973.09(1)(a), whether a
probation condition is reasonable and appropriate “is determined by how well it
serves the dual goals of probation; namely, the rehabilitation of the offender
and the protection of the state and community interest.” State v. Brown, 174 Wis.2d
550, 554, 497 N.W.2d 463, 464 (Ct. App. 1993) (restitution of $7,000 to sexual
assault victim for tuition reasonable and appropriate where victim changed
schools to avoid classmates' harassment resulting from assault). We will uphold a sentencing court's
discretionary determination of a probation condition unless the court
erroneously exercised discretion. Id.
at 553, 497 N.W.2d at 464.[8]
First,
we have no difficulty concluding that a sentencing court reasonably may
determine that rehabilitation of a man who has sexually assaulted a child will
be fostered by motivating his consciousness of all the consequences of his
crime, including the expense of DNA testing to establish whether he is
responsible for his victim's pregnancy.
As in Heyn, Beiersdorf's payment “therefore impresses upon
[him] the full extent of the harm caused by his ... criminal activities and
teaches [him] to consider more carefully the consequences of his ... actions in
the future. The community benefits, in
turn, from the rehabilitative effects of the condition on the convicted
person.” Heyn, 155 Wis.2d
at 630, 456 N.W.2d at 161. As in Brown,
Beiersdorf's payment “should aid in [his] rehabilitation by increasing his
appreciation for the far-reaching consequences of his assault on the victim and
serve to strengthen his sense of responsibility for his actions. The community also benefits from the
rehabilitative effects of the ... condition imposed on [Beiersdorf].” Brown, 174 Wis.2d at 554, 497
N.W.2d at 464 (citation omitted).[9]
B. As a cost/condition of probation under
§ 973.06(1)(c), Stats.
Additionally,
a “cost”-related condition of probation is proper if the “cost” is among those
covered by § 973.06(1)(c), Stats. State v. Amato, 126 Wis.2d
212, 218, 376 N.W.2d 75, 77-78 (Ct. App. 1985). Whether § 973.06(1)(c) provides authority for a sentencing
court to order payment to the Memorial Blood Center of Minneapolis, a private
facility, presents an issue requiring interpretation of a statute, subject to
our independent review. State v.
Dodd, 185 Wis.2d 560, 564, 518 N.W.2d 300, 301 (Ct. App. 1994). Here, the sentencing court had authority to
order payment of the DNA test expenses because they constituted a “cost” under
§ 973.06(1)(c).
In
their supplemental briefs to this court, the parties have addressed the impact
of State v. Schmaling, 198 Wis.2d 757, 543 N.W.2d 555 (Ct. App.
1995), and State v. Ferguson, 202 Wis.2d 233, 549 N.W.2d 718
(1996). Beiersdorf argues that
“[n]othing in either Schmaling or Ferguson ...
distinguishes between public and private entities” and he implies, therefore,
that Ferguson places these DNA test expenses outside the
definition of “costs.” We disagree.
Section
973.06(1)(c), Stats., in part,
defines “[c]osts” as [f]ees and disbursements allowed by the court to expert
witnesses.” In Ferguson,
the supreme court held that § 973.06(1)(c) “does not authorize the
assessment of lab expenses against the defendant for testing controlled
substances found in his possession.” Ferguson,
202 Wis.2d at 235, 549 N.W.2d at 719.
The supreme court clearly confined its holding, however, to testing
services performed by the state crime laboratory. The supreme court carefully explained:
To
constitute a fee under § 973.06(1)(c), the cost of performing a service
must be more than an internal operating expense of a governmental unit which
has been prorated or costed out; it must be chargeable to and payable by
another.
The legislature did not intend that the lab
expenses be paid by another. As the
State pointed out both in its brief and during oral argument before the court,
from 1955 to 1969 the State Crime Laboratory was required by statute to
estimate the cost of and fix charges for its services, which were then
collected annually from local units of government at the rate of fifty percent
of the cost of services performed. From
1969 to 1973 the statute itself fixed these charges. However, the legislature subsequently repealed this
provision. Therefore the State Crime
Laboratory no longer bills local units of government for the services that it
provides, apparently absorbing the cost of such services as internal operating
expenses.
We fail to see how what have become routine
operating expenses incurred by the State Crime Laboratory during the course of
criminal investigations can now be transformed into fees or disbursements. Those expenses, regardless of whether they
are fixed or represent estimates, have not been charged to or paid by another
unit of government since 1973.
Accordingly, we conclude that the expenses incurred by the State Crime
Laboratory in the course of a criminal investigation are not fees or
disbursements under Wis. Stat. § 973.06(1)(c), and the State may not
assess these lab expenses as costs.
Were we to accept the State's argument that
these lab expenses are fees taxable against defendants as costs under
§ 973.06(1)(c), a whole panoply of expenses for services rendered by
expert witnesses who are state employees, including expenses for polygraph
tests, blood tests, handwriting analyses, and physical and mental examinations
might also be construed as fees and taxed against defendants.
We are not aware
that any of these expenses are now being viewed as costs taxable against
defendants. Under the State's
interpretation of the statute, all of them might be. Neither the language nor the legislative history of Wis. Stat.
§ 973.06(1)(c) indicates that the legislature intended defendants to bear
a pro rata share of the operating expenses of the State Crime Laboratory or any
other law enforcement unit.
Id. at 242-43, 549 N.W.2d at 722-23 (citations omitted).
We
recognize that the supreme court then also commented, “Nor has the legislature
indicated that the cost statute allows the State to recover investigative or
litigation expenses.” Id.
at 243, 549 N.W.2d at 723. We read that
general reference to “investigative ... expenses,” however, in context with the
immediately‑preceding specific references to the state crime
laboratory. We do not read that general
observation, therefore, to preclude a sentencing court from invoking the
authority of § 973.06(1)(c), Stats.,
that “allow[s]” it to order payment of “[f]ees ... to expert witnesses.” Given its emphasis on the special
relationship between the State and its own crime laboratory, the supreme
court's comment regarding “investigative ... expenses” would hardly seem to
preclude payment of fees to a private entity.
Indeed,
nothing in Ferguson suggests any rejection of Schmaling,
which concluded, in part, that restitution for expert witness fees of a private
entity was a cost under § 973.06(1)(c), payable as a part of a
sentence. Schmaling, 198
Wis.2d at 763, 543 N.W.2d at 558. In Schmaling,
Racine County retained an accident reconstruction expert to prepare for trial
in a reckless homicide and reckless endangering safety case stemming from a
highway accident.[10] Id. As the State argues:
Schmaling and Ferguson are reconcilable. Schmaling stands for the
proposition that under sec. 973.06(1)(c), Stats., a trial court may assess
against a convicted defendant the expenses incurred by the state in retaining
expert witnesses who are not state employees--in effect, “private” expert
witnesses for whom a local unit of government actually pays during the course
of prosecuting the defendant. Ferguson
simply bars such cost assessments when the expert witnesses are state employees
who do not charge the local unit of government for their services.
As
the supreme court in Ferguson also explained, “[t]he word ‘fees’
in § 973.06(1)(c) describes a fixed charge for a professional service
rendered by an expert witness, a sum which is ordinarily charged to and payable
by another.” Ferguson,
202 Wis.2d at 241, 549 N.W.2d at 922.
In this case the expense for DNA testing required payment to another—a
private facility—for professional services rendered by the experts who
performed the blood and tissue analysis.
Thus, these were “fees” under § 973.06(1)(c), Stats., and, therefore, under Amato,
constitute “costs” payable, as a condition of probation.[11]
By
the Court.—Judgments and order
affirmed.
[1] Thus, in Boettcher, the court
resolved the credit issue under § 973.155(1)(a) and (b), Stats., the latter of which provides:
The categories in par. (a) include custody of the
convicted offender which is in whole or in part the result of a probation or
parole hold under s. 304.06(3) or 973.10(2) placed upon the person for the same
course of conduct as that resulting in the new conviction.
By contrast, any credit due Beiersdorf, who was not on
probation or parole, could only be awarded under § 973.155(1)(a).
[2] In his reply brief to this court, Beiersdorf
invokes § 969.13(1), Stats.,
which provides:
Forfeiture. (1) If the conditions of the bond are not complied with, the court having
jurisdiction over the defendant in the criminal action shall enter an order
declaring the bail to be forfeited.
Beiersdorf
notes that § 969.03(2), Stats.,
requires as a condition of bail that a defendant “shall not commit any
crime.” Therefore, he argues, upon his
arrest for bail jumping his bail on the sexual assault charge should have been
forfeited. Thus, he maintains, “[o]nly
the lack of paperwork revoking bail in the sexual assault case prevents [him
from] receiving 44 days jail-time credit in the sexual assault case.”
We note
that defense attorneys, in countless cases, do ask trial courts to convert
personal recognizance bonds to cash bail when their clients have been arrested
and do remain in custody on cash bail on subsequent charges. They do so precisely because they want to
assure sentence credit on both offenses.
That, however, did not occur in this case. Whether, somehow, that should have occurred by operation of law
under § 969.13, Stats., is
an issue raised by Beiersdorf for the first time in reply and is, therefore, an
issue we will not address. See Swartwout
v. Bilsie, 100 Wis.2d 342, 346 n.2, 302 N.W.2d 508, 512 n.2 (Ct. App.
1980).
[3] The State notes that the trial court, in its
written decision, “erroneously referred to the expenses of genetic testing as
the ‘DNA surcharge.’” The State goes on
to explain:
Under sec. 973.046(1)(a), Stats., the “DNA surcharge” of $250 is a mandatory assessment
that is to be applied in every case in which a defendant is convicted of
violating a particular statute—including sec. 948.02(2), Stats., as in this case—regardless of
whether any genetic testing was actually done.
The assessment of the expenses of genetic testing in the present case is
in addition to the DNA surcharge of $250 and is determined by the actual
expenses incurred by the State in pursuing the genetic testing at the Memorial
Blood Center of Minneapolis. The record
does not disclose any specific dollar amount for this genetic testing.
[4] Section 973.20(1), Stats., in part provides:
973.20
Restitution. (1) When imposing
sentence or ordering probation for any crime, the court, in addition to any
other penalty authorized by law, shall order the defendant to make full or
partial restitution under this section to any victim of the crime or, if the
victim is deceased, to his or her estate, unless the court finds substantial
reason not to do so and states the reason on the record.
[5] Beiersdorf does not dispute, however, that
the blood center had a “relationship on the record to the crime of
conviction.” See State v.
Mattes, 175 Wis.2d 572, 581, 499 N.W.2d 711, 715 (Ct. App. 1993).
[6] Section 973.09(1), Stats., provides:
Probation. ... the court, by order, may withhold sentence or impose sentence
under s. 973.15 and stay its execution, and in either case place the person on
probation to the department for a stated period, stating in the order the
reasons therefor. The court may impose
any conditions which appear to be reasonable and appropriate. The period of probation may be made
consecutive to a sentence on a different charge, whether imposed at the same
time or previously.
[7] In relevant part, § 973.06, Stats., provides:
Costs. (1) Except as provided in s. 93.20, the costs taxable
against the defendant shall consist of the following items and no others:
....
(c) Fees and
disbursements allowed by the court to expert witnesses.
[8] A trial court's discretionary determination
of a probation condition may be reasonable and appropriate even though the
trial court failed to accurately identify the specific legal authority for its
order. See State v.
Fishnick, 127 Wis.2d 247, 264, 378 N.W.2d 272, 281 (1985). Here, it is not clear whether the sentencing
court intended to assess the expense of DNA testing as a condition of
probation, as stated in its sentencing pronouncement and reflected on the
judgment of conviction for bail jumping, or as restitution related to the
sexual assault conviction, as implied by its written decision invoking “broad
authority ... to impose restitution as a reasonable condition of the
defendant's sentence and probation/parole.”
Beiersdorf, however, challenges the authority of the sentencing court to
order payment for the DNA testing on any basis; he does not base his challenge
on the sentencing court's imprecise nomenclature.
[9] Although Beiersdorf's payments ultimately
will go to the Memorial Blood Center of Minneapolis rather than to his victim,
that is only the smallest step removed from the payments to the victims in Heyn
and Brown that ultimately reimbursed them for payments to a
burglar alarm company and a school system.
Further,
contrary to Beiersdorf's additional argument, the condition is no less
reasonable for having been imposed on the probation stemming from bail jumping
directly involving the same victim. See
State v. Miller, 175 Wis.2d 204, 210, 499 N.W.2d 215, 217 (Ct.
App. 1993) (condition of probation need not directly relate to crime for which
defendant placed on probation where defendant needs to be rehabilitated from
related conduct). See also State
v. James P., 180 Wis.2d 677, 685-86, 510 N.W.2d 730, 733 (Ct. App.
1993) (probationary condition requiring delinquent to submit to blood testing
to determine whether he was father of his sister's child was reasonably related
to delinquent's rehabilitation even though such blood testing was unrelated to
offense for which he was placed on probation).
[10] We note that in Schmaling, as
in the instant case, the expert witness did not testify; both cases were
resolved on guilty or no contest pleas.
An expert witness under § 973.06(1)(c), Stats., however, is an expert witnesses regardless of whether
he or she actually testifies in person.
State v. Ferguson, 195 Wis.2d 174, 180, 536 N.W.2d 112,
118-19 (Ct. App. 1995), rev'd on other grounds, 202 Wis.2d 233, 549
N.W.2d 718 (1996).
[11] Beiersdorf also argues that the factual
record lacks specification of the amount payable to the blood center or
evidence of a billing or payment. Such
determinations, however, often are made subsequent to sentencing and, if
disputed, are subject to trial court review.
The lack of specificity in this record does not undermine the sentencing
court's authority to order the payment.