District III
April 15, 2014
To:
Hon. Timothy M. Doyle
Circuit Court Judge
Barron County Justice Center
1420 State Hwy 25 North #2602
Barron, WI 54812-3009
Sharon Millermon
Clerk of Circuit Court
Barron County Justice Center
1420 State Hwy 25 North, Room 2201
Barron, WI 54812-3004
Angela L. Beranek
District Attorney
Barron County Justice Ctr #2301
1420 State Hwy 25 N
Barron, WI 54812-1583
Christine A. Remington
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Don M. Summers 343684
Gordon Corr. Cntr
10401 E. Cty. Rd. G
Gordon, WI 54838
You are hereby notified that the Court has entered the following opinion and order:
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State v. Don M. Summers (L. C. No. 2009CF223) |
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Before Hoover, P.J., Mangerson and Stark, JJ.
Don Summers, pro se, appeals an order denying his motion for sentence credit. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21.[1] We reject Summers’ arguments and summarily affirm the order.
In Barron County Circuit Court case No. 2005CF18, Summers was convicted of one count of delivering heroin and one count of delivering cocaine. The court imposed concurrent eight-year sentences consisting of four years’ initial confinement and four years’ extended supervision. Summers was released to extended supervision on February 29, 2008. In the instant case, arising from Barron County Circuit Court case No. 2009CF223, Summers was convicted of party to the crime of delivering THC. In a May 25, 2010 judgment of conviction, the court withheld sentence and imposed three years’ probation, concurrent with “whatever community supervision he is currently on.” The court also imposed six months in jail as a probation condition.
On January 6, 2012, Summers’ extended supervision and probation were revoked. In case No. 2005CF18, Summers was reconfined for three years and received sentence credit for the periods of August 31, 2009 to September 25, 2009; December 1, 2009 to January 8, 2010; September 10, 2011 to September 14, 2011; and October 26, 2011 to February 2, 2012. In the present case, the court imposed a three-year sentence, consisting of one year of initial confinement and two years’ extended supervision, to run consecutively to Summers’ sentence in case No. 2005CF18. The court also granted 268 days of sentence credit. Summers’ motion for additional sentence credit was denied and this appeal follows.
Whether a defendant is entitled to
sentence credit pursuant to Wis. Stat. § 973.155
is a question of law we review independently.
State v. Rohl, 160 Wis. 2d 325, 329, 466 N.W.2d 208 (Ct.
App. 1991). In order to 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. State v. Dentici, 2002 WI App
77, ¶5, 251 Wis. 2d 436, 643 N.W.2d 180.
Here, Summers claims
he is entitled to additional credit in this case for the periods from August
31, 2009 to September 25, 2009, and from December 1, 2009 to January 8,
2010.
Awarding the additional credit sought in
this case would result in dual credit to Summers in violation of State
v. Boettcher, 144 Wis. 2d 86, 90, 423 N.W.2d 533 (1988). There, our supreme court held that “no dual
credit is allowable where consecutive sentences are imposed.” Id.
The Boettcher court further held:
[C]ustody credits should be applied in a mathematically linear
fashion. The total time in custody
should be credited on a day-for-day basis against the total days imposed in the
consecutive sentences. For ease in
calculation and clarity in respect to subsequent exercise of court discretion,
the credits should be applied to the sentence that is first imposed.
Here, Summers received consecutive
sentences after the revocation of his extended supervision in case No. 2005CF18 and his probation
revocation in the present case. The
sentence credit Summers now seeks was already received by him in case No.
2005CF18. Because the sentence credit
was already applied to that case, Summers is not entitled to dual credit for
the consecutive sentence imposed in the present case.
Upon the foregoing,
IT IS ORDERED that the order is summarily affirmed. See Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals