OPINION AND ORDER
ANDREW P. RODOVICH, United States Magistrate Judge.
This matter is before the court on the Verified Motion to Compel Discovery [DE 73] filed by the plaintiff, Dr. Jeffrey Yessenow, on December 28, 2009, and on the Motion for Hearing Oral Argument [DE 77] filed by the defendant, Dr. Hilton Hudson, on January 11, 2010. For the following reasons, the Verified Motion to Compel Discovery is GRANTED, and the Motion for Hearing Oral Argument is DENIED.
Background
This motion arises out of a dispute about an indemnity agreement. The plaintiff, Jeffrey Yessenow, and the defendant, Hilton Hudson, both practiced medicine at and were investors in what is now known as Heartland Memorial Hospital. Leroy Wright, a banker, also was a major investor in the Hospital. In March of 2006, TWG Illiana Surgery and Medical Center, Inc., merged with iHealthcare, Inc., to create Heartland Memorial Holdings, Inc., whose main asset was Heartland Memorial Hospital, LLC. Hudson was the Chairman of TWG, and Wright was the Chairman of iHealthcare. After the merger, Yessenow became the CEO of Heartland Memorial Hospital, Hudson was chairman of the hospital and a substantial minority shareholder of Heartland Memorial Holdings, Inc., and Wright was the majority shareholder of Heartland Memorial Holdings, Inc.
This merger was financed in large part by a venture capital company, AIC Ventures, and resulted in an agreement between AIC Ventures and Heartland Memorial Hospital to purchase five of the Hospital's ancillary medical facilities through a sale/leaseback transaction. However, AIC Ventures required an initial security deposit of one-year's rent, roughly $1.5 million, in case the Hospital defaulted on any payments. According to Yessenow, Hudson and Wright asked him to post the initial security deposit. So, on March 17, 2006, Yessenow obtained a six month letter of credit, backed by a $1.5 million promissory note and secured by a mortgage on his lakefront condo in downtown Chicago.
On March 23, 2006, the sale/leaseback transaction was consummated. Worried about his exposure under the letter of credit, Yessenow insisted on indemnification from his business partners. On March 31, 2006, the parties entered into an Indemnification Agreement whereby the Hospital would indemnify Yessenow from any losses or expenses incurred as a result of the bank loan. The Hospital's indemnification obligations to Yessenow were guaranteed jointly and severally by Hudson and Wright individually, and their business entities, Hudson Publishing, Wright Capital Partners, and Wright Group Holdings.
On March 6, 2008, the bank that purchased Yessenow's promissory note made a demand for a draw on the full amount of the letter of credit. Yessenow looked to the defendants for indemnification, they balked, and this lawsuit followed. Yessenow filed Plaintiff's First Amended Complaint on April 24, 2009, seeking declaratory judgment on the indemnity agreement and asserting claims of constructive fraud, unjust enrichment, and breach of contract.
The defendants filed their Answer to Plaintiff's First Amended Complaint and Restated Amended Counterclaim on May 8, 2009. In their counterclaims for breach of fiduciary duty and unjust enrichment, the defendants assert that Yessenow's mismanagement of the hospital and his acts of self-dealing during his tenure as CEO caused nearly half of the hospital's physicians to quit and destroyed the value of Heartland/Illiana, rendering its shareholders' ownership interests worthless. Yessenow filed his Answer to Defendants' Restated Amended Counterclaim on June 17, 2009, raising the affirmative defenses of unjust enrichment, fraud, and unclean hands.
On August 25, 2009, Yessenow served the defendants with his First Set of Interrogatories. Interrogatory 1 requests that the defendants "identify all bank accounts of Defendants from January 1, 2005, to the present, including, but not limited to, the bank name, account name, and account number." (Pl.'s Interrog. No. 1, Ex. 1 to Pl's Mot. to Compel Def.'s to Answer Interrog., at 8.) The defendants answered the interrogatories on October 12, 2009, but the defendants did not answer Interrogatory 1 and have objected to it "on the grounds that it is irrelevant, overly broad, unduly burdensome, oppressive, harassing, and not reasonably calculated to lead to the discovery of admissible evidence." (Defs.' Answer to Pl.'s Interrog. No. 1, Ex. 2 to Plaintiff's Motion, at 4.)
The parties debated the relevance of Interrogatory 1 through a series of interactions, including a letter dated November 9, 2009, a telephone conference on December 4, 2009, and a series of emails. Counsel for Yessenow states in the November 9, 2009 letter that Interoggatory 1 "may lead to additional admissible evidence on Plaintiff's/Counter-defendant's first, second, and fifth affirmative defenses to Counter-plaintiffs' counterclaim." (DE 73-4) In an email sent December 7, 2009, counsel for Yessenow asks for a "meet and confer" on the objection to the interrogatory, with counsel for the defendants responding the next day, "I don't believe a separate meet and confer would be necessary . . . the parties' positions on the appropriateness of the requested discovery differ." (DE 73-6)
Yessenow filed this motion on December 28, 2009, requesting that an order compelling the defendants to answer Interrogatory 1 and reimbursement for all costs and attorney's fees in bringing this motion. Yessenow contends that Interrogatory 1 is relevant because the information requested is of a limited time frame that will be admissible in and of itself or lead to information supporting his affirmative defenses of unjust enrichment, unclean hands, and fraud.
To support this motion, Yessenow argues that third-party discovery uncovered irregularities in the defendants' handling of TWG's finances, which Yessenow asserts is involved in the underlying transactions associated with the claims and defenses alleged in this case. He claims that Wright Capital Partners was a majority investor in TWG, and Hudson was an officer and investor in TWG during the relevant time period. He served a subpoena for records of one of TWG's bank accounts which has uncovered some evidence allegedly supporting this defense, including a $300,000.00 check to Hudson from TWG's account, a withdrawal of $170,000.00 in cash from TWG's account by Wright, and the payment of defendants Wright and Wright Capital Partners' legal bills with TWG money. Yessenow contends that the requested financial information will allow him to discover how TWG's money was moved to the detriment of TWG's shareholders and to the defendant's own unjust enrichment, including the misappropriation of at least $900,000.00 in proceeds from the sale/leaseback agreement with the venture capital company. Yessenow contends that the requested information is relevant to his defense.
Defendants Wright and Wright Partners, LLC did not provide a response to Yessenow's motion. However, defendants Hudson and Hilton Publishing filed a response to Plaintiff's motion, as well as a Motion for Hearing Oral Arguments regarding Interrogatory 1, on January 11, 2010. Hudson argues that Yessenow has failed to demonstrate that the requested information is relevant to any claim or defense in this case, and therefore, failed to overcome their objections that Interrogatory 1 is not relevant. Hudson contends there is no connection between the requested information and the parties' dispute over the indemnity agreement, which he argues is the sole issue in this case. As such, he claims that any evidence of fraud, unclean hands, or unjust enrichment by TWG has no effect on any fact at issue and does not help Yessenow to prove any issue in this lawsuit. Finally, Hudson contends that Yessenow failed to make a good faith attempt to resolve this dispute. Hudson requests that this Court sustain his objections to Interrogatory 1, deny Plaintiff's motion to compel discovery, and award him his attorney fees in defending against this motion.
In his reply, Yessenow contends that the claims and defenses in this case are not limited to the indemnity agreement, because the defendants' counterclaims allege that Yessenow's actions as CEO of Heartland/Illiana destroyed the value of Heartland/Illiana and caused defendants to lose their investments in TWG and the value of their stock in TWG. Yessenow argues that the defendants' bank account information is directly relevant to support his defense that any of the defendant's losses were the result of their own mishandling, fraud, and double-dealing. Yessenow further contends that the letter dated November 9, 2009, the telephone conference, and the emails, demonstrate his good faith attempts to resolve this dispute, and the defendants are unjustified in refusing to provide the requested information.
Discussion
It is not the practice of this court to hold motion hearings, and so the Motion for Hearing Oral Argument [DE 77] filed by the defendant is DENIED.
A party may "obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things." Federal Rule of Civil Procedure 26(b)(1). For discovery purposes, relevancy is construed broadly to encompass "any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case." Chavez v. DaimlerChrysler Corp. , 206 F.R.D. 615, 619 (S.D. Ind. 2002) (quoting Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L.E.2d 253 (1978)). Even when information is not directly related to the claims or defenses identified in the pleadings, the information still may be relevant to the broader subject matter at hand and meet the rule's good cause standard. Borom v. Town of Merrillville, 2009 WL 1617085, *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser Prods., Inc. v. Arista Records, Inc. , 214 F.R.D. 496, 502 (S.D. Ind. 2003)); see also Adams v. Target , 2001 WL 987853, *1 (S.D. Ind. July 30, 2001) ("For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action."); Shapo v. Engle , 2001 WL 629303, *2 (N.D. Ill. May 25, 2001) ("Discovery is a search for the truth.").
A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or has provided evasive or incomplete responses. Federal Rule of Civil Procedure 37(a)(2)-(3). The burden "rests upon the objecting party to show why a particular discovery request is improper." Gregg v. Local 305 Ibew , 2009 WL 1325103, *8 (N.D. Ind. May 13, 2009) (citing Kodish v. Oakbrook Terrace Fire Protection Dist. , 235 F.R.D. 447, 449-50 (N.D. Ill. 2006)); McGrath v. Everest Nat. Ins. Co. , 2009 WL 1325405, *3 (N.D. Ind. May 13, 2009) (internal citations omitted); Carlson Restaurants Worldwide, Inc. v. Hammond Professional Cleaning Services , 2009 WL 692224, *5 (N.D. Ind. March 12, 2009) (internal citations omitted). The objecting party must show with specificity that the request is improper. Cunningham v. Smithkline Beecham , 206 F.R.D. 474, 478 (N.D. Ind. 2009) (citing Graham v. Casey's General Stores , 206 F.R.D. 253, 254 (S.D. Ind. 2002)). That burden cannot be met by "a reflexive invocation of the same baseless, often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence." Cunningham , 255 F.R.D. at 478 (citing Burkybile. v. Mitsubishi Motors Corp. , 2006 WL 2325506, *6 (N.D. Ill. Aug. 2, 2006)) (internal quotations and citations omitted). Rather, the court, under its broad discretion, considers "the totality of the circumstances, weighing the value of material sought against the burden of providing it, and taking into account society's interest in furthering the truth-seeking function in the particular case before the court." Berning v. UAW Local 2209 , 242 F.R.D. 510, 512 (N.D. Ind. 2007) (examining Patterson v. Avery Dennison Corp. , 281 F.3d 676, 681 (7th Cir. 2002)) (internal quotations and citations omitted).
The sole issue in this motion to compel is Yessenow's Interrogatory 1, which states, "Identify all bank accounts of Defendants from January 1, 2005 to the present, including, but not limited to, the bank name, account name, and account number." (Pl.'s Interrog. No. 1, Ex. 1 to Plaintiff's Motion, at 8.)
Defendant Hudson objected to this interrogatory on the grounds that it is "irrelevant, overly broad, unduly burdensome, oppressive, harassing, and not reasonably calculated to lead to the discovery of admissible evidence." (Defs.' Answer to Pl.'s Interrog. No. 1, Ex. 2 to Plaintiff's Motion, at 4.) As the objecting party, Hudson bears the burden of demonstrating with specificity that Yessenow's request for Hudson's bank account information is improper. Cunningham , 206 F.R.D. at 478 (citing Graham v. Casey's General Stores , 206 F.R.D. 253, 254 (S.D. Ind. 2002)). Hudson argues that this objection is sufficient because his financial information is outside the scope of the claims and defenses at issue, it "has [no] tendency to prove or disprove any fact at issue in the pleadings in this matter" and that Yessenow has failed to provide any explanation for this request that can connect Hudson's bank account information to either the indemnity agreement or Yessenow's affirmative defenses. (Defs.' Resp., p. 6.) However, this argument does no more than recite the "same baseless, often abused litany" which is insufficient to show Yessenow's discovery request is improper. Cunningham , 255 F.R.D. at 478 (citing Burkybile. v. Mitsubishi Motors Corp. , 2006 WL 2325506, *6 (N.D. Ill. Aug. 2, 2006)) (internal quotations and citations omitted).
The argument that Interrogatory 1 is not relevant fails. First, Hudson contends that the sole issue in this case is the alleged indemnity agreement which has no connection to either TWG's or his own financial information. Although Hudson is correct that Yessenow's original claims were related only to the indemnity agreement, the defendants' counterclaims raise the issues of Yessenow's performance as CEO of Heartland/Illiana, his management of the hospital, and his alleged acts that caused the defendants' financial losses. Because the defendants expanded the scope of litigation, Yessenow is not confined to the indemnity agreement in his defense of their counterclaims. See Oppenheimer Fund , 437 U.S. at 350-51 ("Parties may
obtain discovery regarding any matter, not privileged, which is relevant . . . whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . . ."); see also Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., Inc. , 130 F.R.D. 92, 95 (N.D. Ind. Jan. 17, 1990) ("A litigant should not be able to parry a discovery thrust by anticipatory initial skillful pleading when a counterclaim is filed that legitimately broadens the scope of the case.").
Second, Hudson relies on this court's decision in United States v. Lake County Bd. of Com'rs , 2006 WL 1660598 (N.D. Ind. June 7, 2006), to argue that Interrogatory 1 is a baseless attempt by Yessenow to seek irrelevant information. In Lake County Bd. , this court denied the defendants' motion to compel the production of HUD's personnel files of employees who investigated the plaintiff's discrimination claim under the Fair Housing Act (FHA). Id. at *1. The defendants argued that the requested files could reveal evidence of possible misconduct by HUD and the reason for HUD's delay in investigating the claim, which could support their affirmative defenses and allow for a reduction of any damage award. Id. at *2-3. However, only the fact of the delay itself, which was obvious from the facts of the case, was relevant to support the defendants' affirmative defenses and an argument for damage reduction. Id. at *2-3. Therefore, this court held that the HUD investigative mismanagement and "internal irregularities in the investigative process" leading to the decision to file the action were not relevant to the determination of whether the defendants violated the FHA. Id. at *2-3.
Here, by contrast, the defendants' Amended Counterclaim directly raises the issue of Yessenow's alleged mismanagement of Heartland/Illiana that caused the company's economic downfall. Unlike Lake County Bd. , any evidence of internal irregularities and mismanagement of Heartland/Illiana and its affiliate companies is relevant to the defendant's counterclaim and Yessenow's defenses. Yessenow contends that the defendants' bank account information is relevant to establishing his affirmative defenses of fraud, unjust enrichment, and unclean hands, because it may provide evidence that the defendants' alleged losses were "the result of their own mishandling and double dealing." (Pl.'s Reply, p. 7.) Yessenow asserts that a subpoena on one of TWG's bank accounts already has uncovered some evidence to support this defense, including a $300,000.00 check to Hudson from TWG's account, a withdrawal of $170,000.00 in cash from TWG's account by Wright, and the payment of Defendants Wright and Wright Capital Partners' legal bills with TWG money.
Yessenow argues that the requested bank account information from the defendants will allow him to discover how both TWG and the defendants' money was moved for the defendants' own unjust enrichment, proving that the defendants misappropriated at least $900,000.00, and revealing any other improper payments that could support his defense. Based on these arguments, Interrogatory 1 is relevant to Yessenow's defense and seems reasonably calculated to lead to admissible evidence that the defendants' alleged damages were the result of their own mishandling and double dealing rather than his own actions. See, e.g., Simon v. Whichello , 2006 WL 2042154, * 3-4 (N.D. Ind. July 18, 2006) (holding bank statements and loan documents for three years following stock sale were relevant to allegations of misrepresentation regarding the stock value and company's financial condition, because the "reveal[ed] the financial status of the business and the changes, if any, in that condition."); Data-Link Sys., Inc. v. Data Line Serv., Inc. , 148 F.R.D. 225, 227-228 (N.D. Ind. May 28, 1992) (holding plaintiff's request for "[a]ll monthly and annual financial statements . . . income statements, balance sheets and cash flow statements . . . that in any way relate to Defendant's revenues, profits or losses derived directly or indirectly from the MeraBank Account," was not overly broad); Upchurch v. USTNET, Inc. , 158 F.R.D. 157, 160 (D. Or. Oct. 19, 1994) (granting plaintiff's motion to compel discovery of defendant's financial condition from October 1, 1992 to October 19, 1994, because the requested information was relevant to defendant's counterclaims for tortious interference with contract and unfair competition).
Additionally, Hudson contends in his response that Yessenow failed to make a good faith effort to resolve this discovery dispute as required by Local Rule 37.1, because he failed to explain how the discovery sought related to any claims or defenses at issue in this case. Local Rule 37.1(b) states, "With respect to every other motion concerning discovery, the motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party in an effort to resolve the matter without court action." The letter of November 9, 2009, the telephone conference on December 4, and the emails exchanged between both parties regarding the defendants' objection to Interrogatory 1 may not definitively fulfill Yessenow's Rule 37.1 obligations because of the lack of a "meet and confer" conference. However, the email exchange between counsel clearly demonstrates that Yessenow attempted to do just that, but counsel for Hudson refused.
Because Interrogatory 1 is relevant to Yessenow's defenses against the defendants' counterclaims and he fulfilled his Local Rule 37.1 obligations, Yessenow's Motion to Compel an Answer to Interrogatory 1 is GRANTED. Additionally, in light of the lack of response from defendant, Wright, the court GRANTS the motion against him also. The defendants are ORDERED to respond to the discovery request within twenty-eight (28) days of entry of this order.
Finally, both Yessenow and Hudson seek to obtain attorney fees for the time spent in regards to this motion. "The great operative principle of Rule 37(a)(4) is that the loser pays." Charles Alan Wright Arthur R. Miller, 8 Federal Practice and Procedure § 2288 at 787 (1970). "Fee shifting when the judge must rule on discovery disputes encourages their voluntary resolution and curtails the ability of litigants to use legal processes to heap detriments on adversaries (or third parties) without regard to the merits of the claims." Rickels v. City of South Bend, Ind. , 33 F.3d 785, 787 (7th Cir. 1994). Any loser may avoid payment by showing that his position was substantially justified. Rickels , 33 F.3d at 787. The failure to disclose is sanctionable and properly remedied by an order compelling discovery. Rule 37(a)(2)(B), (a)(3), and (a)(4); Lucas v. GC Services, L.P. , 226 F.R.D. 328, 329-330 (N.D. Ind. 2004). Rule 37(a)(4)(A) states that the court shall require sanctions based upon the costs of seeking a motion to compel. Stookey v. Teller Training Distributors, Inc. , 9 F.3d 631, 637 (7th Cir. 1993) ("Rule 37(a)(4) clearly allows for an award of the expenses incurred in obtaining an order to compel, including attorney's fees.") Sanctions under Rule 37(a)(4)(A) are appropriate unless the party's nondisclosure was "substantially justified." In addition, Federal Rule 37(c)(1) states that a party who fails to disclose, provides false or misleading disclosure, or refuses to admit information required by Rule 26(a) without "substantial justification" may be sanctioned unless such failure was "harmless." Musser v. Gentiva Health Services , 356 F.3d 751, 755 (7th Cir. 2004); Salgado v. General Motors Corp. , 150 F.3d 735, 742 (7th Cir. 1998); Engel v. Town of Roseland , 2007 WL 2903196, *6 (N.D. Ind. Oct. 10, 2007). Thus, Rule 37(a) is a fee-shifting rule, and the loser must pay unless it demonstrates that its position was "substantially justified."
Hudson refused to meet and confer and ignored Yessenow's plain, clear assertion that Interrogatory 1 was relevant to his first, second, and fifth affirmative defense. The boilerplate objection to the Interrogatory was not substantially justified as it was "merely a reflexive invocation of the same baseless, often abused litany" that was insufficient in meeting his burden of showing with specificity that the request was improper. Cunningham , 255 F.R.D. at 478 (citing Burkybile. v. Mitsubishi Motors Corp. , 2006 WL 2325506, *6 (N.D. Ill. Aug. 2, 2006)). In addition, the refusal to meet and confer, thereby forcing Yessenow to file the motion to compel, delayed the litigation. Therefore, Yessenow's request for attorney's fees is GRANTED. Counsel for the plaintiff is DIRECTED to file an affidavit with the court of his costs in preparing the motion and briefs in this matter.
For the foregoing reasons, the plaintiff's Motion to Compel Discovery [DE 73] on December 28, 2009, is GRANTED; the defendant's Motion for Hearing Oral Arguments [DE 77] on January 11, 2010 is DENIED.
.S.C. § 3568 are highly relevant because the former statute was not only "analogous" but also the acknowledged source of Wis. Stat. § 973.155(1), and the Wisconsin statutory provision at issue has not changed.
See 18 U.S.C. § 3585, which reads in part:
(b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences —
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence. (Emphasis added.)
The last clause of (b) puts into statutory language the longstanding disapproval of dual credit in federal courts.
¶ 139. When they interpreted 18 U.S.C. § 3568, federal courts consistently denied credit on federal sentences for time spent in state custody, with one notable exception. In Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974), the court stated:
The only situation where credit has been given for the serving of time for a different offense is
where a state prisoner has been denied release on bail solely because of an outstanding federal detainer lodged against him. In that case courts have held that he is in custody "in connection with" the federal offense and entitled to credit against his federal sentence for time spent in state custody under those circumstances.
Id. at 1169 (emphasis added) (citations omitted).
Anglin was the established law in the Seventh Circuit at the time Wisconsin adopted Wis. Stat. § 973.155(1) in 1978.
¶ 140. The interpretation of 18 U.S.C. § 3568 was summed up several years later in Boniface v. Carlson, 856 F.2d 1434 (9th Cir. 1988), where the court said:
A prisoner in state custody who cannot secure his release on bail because of a federal detainer is entitled to credit against his federal sentence for the time he would otherwise be out free on bail.
See
18 U.S.C.A. § 3568 (West 1985) (repealed 1984, effective Nov. 1, 1986). To secure this credit, however, the prisoner must establish not only that the federal detainer was the sole reason for the denial of bail, but also that the state did not credit his state sentence for that time.
Id. at 1436 (citations omitted).
See also:
1.
Shaw v. Smith, 680 F.2d 1104 (5th Cir. 1982):
In sum, the Attorney General is ordinarily not required to give credit toward a federal sentence for time spent by a prisoner serving a sentence imposed by another jurisdiction for an unrelated offense.
Case law has, however, established one general exception to this basic rule. Time spent in state custody, even if for an unrelated offense, must be credited toward time served on a federal sentence "if the continued state confinement was exclusively the product of such action by federal law-enforcement officials as to justify treating the state jail as the practical equivalent of a federal one."
Ballard v. Blackwell, 449 F.2d 868, 869 (5th Cir. 1971). "If, for example, a state defendant is denied bail solely because of a federal detainer issued against him, the time spent in state custody awaiting trial must be credited to his federal sentence."
United States v. Shillingford, 586 F.2d 372 (5th Cir. 1978).
Id. at 1106 (citations omitted).
2. United States v. Blankenship, 733 F2d 433 (6th Cir. 1984):
However, the evolved legal precedent also teaches that the credit against the federal sentence attaches only when the federal detainer is the
exclusive reason for the prisoner's failure to obtain his release on bail.
. . .
Since appellant's failure to obtain release on bond was not caused by the federal detainer, he is not entitled to a credit against his federal sentence.
Id. at 434 (emphasis added) (citations omitted).
¶ 141. As noted, the legislature adopted § 973.155(1) in the 1977 session. Thereafter, the Wisconsin Criminal Jury Instructions Committee drafted special materials to suggest standards for the proper determination of sentence credit under the new statute. Wis. JI — Criminal, Part III, SM-34A. In 1982 the Committee attempted to define the phrase "in custody." It drew upon the definition of "custody" in Wis. Stat. § 946.42 (1981) and then gave examples:
The following situations would be within this definition of custody:
1. detention in the county jail before bail is set or thereafter;
2. detention in the county jail during nonworking hours as a condition of bail release or probation;
3. commitment for the determination of competency to stand trial under § 971.14(2) or commitment as not competent to stand trial under § 971.14(5);
4.
detention in jail in another state when that detention is in connection with a course of conduct for which sentence is imposed in Wisconsin.
Wis. JI — Criminal SM-34A at 6 (1982) (emphasis added).
¶ 142. The Committee's out-of-state example was ambiguous. Three months before the Committee issued special materials on Wis. Stat. § 973.155(1), Attorney General Bronson C. La Follette released an opinion on sentence credit for revoked probationers and parolees. 71 Wis. Op. Att'y Gen. 102 (1982) (OAG 29-82). La Follette described a situation "where a parolee is picked up in the foreign jurisdiction on a parole violation warrant issued in Wisconsin but, prior to being returned to this state, is charged in the foreign jurisdiction with a new criminal violation." Id. at 105.
The intervening period between arrest on a parole violation warrant and the issuance of charges by the foreign jurisdiction would be the result of the Wisconsin revocation proceeding, and thus subject to the credit provisions. . . . Similarly, the period of custody between the completion of the parolee's custodial period in the foreign jurisdiction and the time he is picked up by Wisconsin authorities to be returned to this state would be credited.
Id. at 105-06. The period after the "issuance of charges" and "the completion of the parolee's custodial period in the foreign jurisdiction" would not lead to sentence credit. La Follette's opinion was consistent with federal court rulings.
¶ 143. By 1986 the committee had reconsidered the wording of its out-of-state example because it was too broad. It changed the special materials to read:
4. detention in jail in another state when that detention results exclusively from a Wisconsin warrant or detainer.
Wis. JI — Criminal SM-34A at 7 (1986).
¶ 144. The 1986 special materials then gave an additional example:
Not included within the definition of "custody" for sentence credit purposes are the following situations:
. . . .
4. detention in another state based on an offense committed in that state, even if a Wisconsin warrant or detainer has also been filed.
Id. at 8.
¶ 145. These two examples were in complete conformity with the federal interpretation of 18 U.S.C. § 3568 and the Attorney General's opinion. The Com* mittee explained its examples as follows:
4. Credit should be granted when, for example, a Wisconsin parolee is arrested in Illinois solely because of a Wisconsin warrant. Credit should not be granted when a Wisconsin parolee, already in custody on Illinois charges, has a Wisconsin hold or warrant filed against
him. This is consistent with the conclusion that filing a detainer against one already in custody in Wisconsin does not result in "custody" under § 973.155 on the charge which is the subject of the detainer.
Comment to Wis. JI — Criminal SM-34A at 23 (1986). The Committee cited two Wisconsin cases: State v. Demars, 119 Wis. 2d 19, 348 N.W2d 708 (Ct. App. 1984), and State v. Nyborg, 122 Wis. 2d 765, 364 N.W.2d 553 (Ct. App. 1985).
¶ 146. The 1988 version of the special materials contained the exact same examples and explanation. The 1991 version is the same except that the committee added State v. Rohl, 160 Wis. 2d 325, 466 N.W2d 208 (Ct. App. 1991), as additional support for its examples.
¶ 147. The 1995 version of the special materials includes the same examples and explanation as the 1991 version, and the 1995 version is the latest to be issued on this point. In short, detention in another state based on an offense committed in that state, even if a Wisconsin warrant or detainer has also been filed, has been excluded from the interpretation of "custody" for sentence credit purposes since the early 1980s. Rohl's facts vindicated the committee's second sentence.
The sentence credit rule explained in the special materials is not only the federal rule but also the rule in most states. "[T]he overwhelming majority of states allow for the granting of credit for time served in presentence confinement while awaiting extradition when the sole reason for the foreign incarceration is the offense for which the defendant is ultimately convicted and sentenced." Nieto v. State, 70 P.3d 747, 748 (Nev. 2003) (emphasis added); see also Kronz v. State, 462 So. 2d 450 (Fla. 1985) (allowing trial courts discretion to grant credit "when the defendant was incarcerated in another state solely because of the Florida offense for which he or she is being sentenced"); Jennings v. Hunt, 272 So. 2d 333, 334 (La. 1973) (authorizing sentence credit "where the out-of-state detention results solely from the sentencing state's detainer on a fugitive complaint"); State v. Brown, 348 N.W2d 743, 748 (Minn. 1984) (applying credit "to*time spent in jail in another state solely in connection with the offense of sentencing while awaiting extradition"); State v. Duran, 960 A.2d 697, 707 (N.H. 2008) (granting credit where "sole reason" for confinement was instate warrant); Commonwealth v. Bortner, 326 A.2d 622, 623 (Pa. Super. Ct. 1974) (holding that the defendant should be given credit "if he was detained in Ohio solely by reason of the Pennsylvania charge and not by reason of the separate Ohio charges"); State v. Coe, 554 A.2d 656, 659 (Vt. 1988) (relying on state and federal precedent to conclude that a defendant "bears the burden of establishing that the charge on which sentence is imposed was the sole basis of the custody at issue").
¶ 148. In an opinion filed November 1, 2007, the court of appeals repudiated the examples set out in the special materials. State v. Carter, 2007 WI App 255, 306 Wis. 2d 450, 743 N.W.2d 700. The court rejected "the State's argument that, because [Carter] was not exclusively in custody on the Wisconsin charge, he was not entitled to sentence credit for the time he was in custody in Illinois." Id., ¶ 2. The court added:
We conclude that Carter is entitled to sentence credit for the days from December 14, 2003, when he was taken into custody in Illinois based on the charge in this case, until November 2, 2004, when he was sentenced on the Illinois charge.
Id., ¶ 31. According to the court of appeals, Carter was entitled to 324 days of sentence credit.
Id.
¶ 149. In retrospect, the court of appeals was presented with incorrect facts. It also misconstrued the law. Some of the factual errors are revealed in the majority's opinion. The legal deficiencies are largely adopted in the majority opinion. Thus, although the correct rule to decide this case is stated in the special materials, the majority opinion, which changes the rule, requires a comprehensive response.
V
¶ 150. Determining sentence credit is one of the most common duties of a circuit court. This duty requires the circuit court to answer two questions. First, was the defendant "in custody" within the meaning of Wis. Stat. § 973.155(1)? Second, was all or part of the "custody" for which sentence credit is sought "in connection with the course of conduct for which sentence was imposed"? Elandis Johnson, 318 Wis. 2d 21, ¶ 27 (citations omitted).
¶ 151. Sometimes the amount of sentence credit turns on the interpretation of the words "in custody." Other times it turns on the interpretation of the "in connection with" clause. On occasion, the court's determination requires interpretation of both factors.
A. "In Custody"
¶ 152. Almost from the beginning, Wisconsin courts have wrestled with the meaning of "in custody." In a lay sense, a person who is confined to a county jail in Wisconsin or another state is in custody. But confinement may not equal "custody" or qualify the person for sentence credit under the statute.
¶ 153. The special materials explain that "in custody" is not defined for purposes of § 973.155. The materials suggest that "the definition of `custody' used for purposes of the criminal escape statute, § 946.42, may be applicable to the sentence credit issue: If any part of the offender's status would be considered `custody' for purposes of the escape statute, credit is due." Wis. JI — Criminal, Part III, SM-34A, at 5. This court, in State v. Gilbert, 115 Wis. 2d 371, 379, 340 N.W2d 511 (1983), used this standard and applauded the committee's work.
¶ 154. One implication of the committee's analysis is plain: A person confined to an Illinois jail is not "in custody" within the meaning of § 946.42 because Wisconsin may not prosecute an escape from an Illinois jail or any other out-of-state institution.
¶ 155. In State v.Demars, 119 Wis. 2d 19, 349 N.W2d 708 (Ct. App. 1984), the court of appeals employed a different explanation of custody in a case involving a "detainer." The detainer was issued by Winnebago County against a person being held in Fond du Lac County. Demars was jailed on February 9, 1983, in Fond du Lac County solely on Fond du Lac County crimes. Id. at 21. On the same date, a probation hold was placed against him for absconding from probation. Id. A preliminary revocation hearing was held on March 10. Id. The following day, a fact-finder found probable cause for revocation and ordered that Demars be held in custody pending a final hearing on probation revocation. Id. All this happened in Fond du Lac County.
¶ 156. In the meantime, on February 22, 1983, the Winnebago County District Attorney filed unrelated criminal charges against Demars for Winnebago County crimes. Id. On February 25, the Winnebago County Sheriffs Department filed a "detainer" with Fond du Lac County, requesting that Fond du Lac County detain Demars if he should post bond and if his probation hold should be lifted. Id. Winnebago County subsequently made arrangements to bring Demars to Winnebago County, and Demars made his initial appearance there on May 2, 1983. Id. The Winnebago County court imposed $400 in cash bail, set a preliminary examination for May 18, and permitted Demars to be returned at once to Fond du Lac County. Id. at 21-22. When he was brought to Winnebago County a second time on May 18, Demars pled guilty and was sentenced to 33 months in prison.
¶ 157. The issue on appeal was whether Demars was entitled to sentence credit on the Winnebago County crimes for the period from February 25, when the Winnebago County detainer was filed, until May 18, the day Demars was sentenced — a total of 83 days. Id. at 22. The court of appeals said no, but it did award Demars credit for 17 days — May 2 through May 18 — on his Winnebago County sentence. Id. at 20-21.
¶ 158. Public Defender Glenn Cushing argued on appeal that the issue was "whether the defendant's custody in the Fond du Lac County jail was `in connection with the course of conduct for which sentence was imposed' in Winnebago County." He contended that Demars' status changed when Winnebago County filed the detainer, inasmuch as Demars was no longer in custody in Fond du Lac solely on Fond du Lac County charges, as Winnebago County had lodged a formal "hold" request that would take effect if Demars posted bond and if his probation hold was lifted.
¶ 159. The court of appeals did not rely on the escape statute to decide the case. It used Black's Law Dictionary, which defined "custody," in part, as "the detainer of a man's person by virtue of lawful process or authority." Demars, 119 Wis. 2d at 23 (quoting Black's Law Dictionary 347 (5th ed. 1979)). The court said:
A close analysis of all the cases cited by Demars shows the presence of a legal event, process or authority
which occasioned, at least in part, the custody of the defendant relative to the charge for which he was ultimately sentenced. We conclude that "custody" as used in sec. 973.155, Stats., must necessarily result from the occurrence of a legal event, process, or authority which occasions, or is related to, confinement on the charge for which the defendant is ultimately sentenced.
Demars, 119 Wis. 2d at 25-26.
¶ 160. The court explained:
Examples of lawful process or authority resulting in custody in a criminal case include arrest with or without a warrant, arrest upon a capias or bench warrant, unsatisfied bail requirements resulting in confinement, sentence to confinement, temporary detention pursuant to sec. 968.24, Stats., probation or parole holds, and periods of confinement imposed as a condition of probation.
Id. at 23.
¶ 161. A "detainer," the court said, did not meet this standard. "The term `detainer' carries no custodial mandate in our jurisprudence." Id. at 24. Consequently, the court held, Demars was not in custody, within the meaning of the statute, until he was brought to Winnebago County and the court set bail. This constituted the "legal event" that changed his status in Fond du Lac County Id. at 26.
¶ 162. The Demars analysis is very useful in establishing a second prerequisite of "custody." Carter's arrest in Chicago on a Wisconsin felony warrant was clearly the occurrence of a legal event, but it did not make Carter subject to prosecution under § 946.42 or any other Wisconsin statute for an escape from the Cook County Jail. Demars teaches that "custody" may depend on the existence of two elements: (1) a legal event, process, or authority that occasions, at least in part; (2) a status that subjects a person to an escape charge under a Wisconsin statute for leaving that status.
¶ 163. That "custody" requires both elements was made clear in State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W2d 536. Magnuson was subject to eight criminal charges. He was unable to post bond. Id.,¶ 2. The court modified his bail to a $10,000 signature bond on each count, plus multiple other conditions of release, including a nightly curfew that confined him to the residence of his pastor between specified hours. Id., ¶ 4. "This home detention as a condition of bond was not pursuant to an order from the sheriff or the Department of Corrections under Wis. Stat. § 302.425 (1997-98)." Id., ¶ 5. The defendant was required to wear an electronic bracelet to ensure his presence in the pastor's home during curfew hours. Id., ¶ 6.
¶ 164. After pleading no contest to three counts, the defendant sought sentence credit for the six months he resided with his pastor as a condition of his bond. Id., ¶ 8. This court upheld the circuit court's denial of sentence credit. The court made the following statements:
[N]umerous cases have interpreted the sentence credit statute and concluded that the plain meaning of custody under the statute corresponds to the definition of custody contained in the escape statute, Wis. Stat. § 946.42.
. . . .
[W]e determine that for sentence credit purposes an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status.
In establishing this definition, we modify the approach set forth in
Gilbert in that we do not limit the
inquiry to the definition of custody contained only in Wis. Stat. § 946.42(1)(a). Instead, we acknowledge the importance of reading statutes in pari materia . . . and include for reference other statutory provisions
in which the legislature has classified certain situations as restrictive and custodial by attaching escape charges for an unauthorized departure from those situations.
. . . .
In sum, we determine that for purposes of sentence credit an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status.
Id., ¶¶ 13, 25, 26, 31 (emphasis added).
¶ 165. It must be noted that the defendant in Magnuson was subjected to multiple court-ordered conditions of release occasioning his status, so that he met the standard set out in the Demars case. He did not get sentence credit, however, because he was not subject to an escape charge under any provision of Wisconsin law.
¶ 166. Patrick Carter was not "in custody" within the meaning of § 973.155 when he was confined in the Cook County Jail because he was not subject to an escape charge under any provision of Wisconsin law. Holding that Carter's Chicago confinement fits within the terms of § 973.155(1) would rewrite more than three decades of interpretation and eliminate any jurisdictional or geographic limitation to statutory "custody."
Cf. Herman v. Brewer, 193 N.W2d 540 (Iowa 1972).
¶ 167. This analysis immediately raises the question whether a person held in Illinois solely on a Wisconsin warrant would be entitled to sentence credit on a Wisconsin sentence related to the warrant. The answer is yes. The reason sentence credit would be required is explained in Ballard v. Blackwell, 449 F.2d 868, 869 (5th Cir. 1971):
In interpreting § 3568 we are definitely committed to the position that time spent in State custody
must be credited toward time served on a Federal sentence if the continued State confinement was exclusively the product of such action by Federal law-enforcement officials as to justify treating the State jail as the practical equivalent of a Federal one.
Davis v. Attorney General, [
425 F.2d 238 (5th Cir. 1970)];
United States v. Morgan, [
425 F.2d 1388 (5th Cir. 1970)]. If the Federal detainer alone prevented Ballard's release from State confinement, credit must be given. Or, to state it affirmatively, if absent the Federal detainer and under available state procedures Ballard could have been released from the contemporary State confinement, credit must be given.
Id. (citation omitted).
¶ 168. Credit must be given in this hypothetical circumstance for a constitutional reason, not a statutory reason. See Klimas v. State, 75 Wis. 2d 244, 249 N.W.2d 285 (1977); State ex rel. Solie v. Schmidt, 73 Wis. 2d 76, 242 N.W2d 244 (1976); Kubart v. State, 70 Wis. 2d 94, 233 N.W2d 404 (1975). The law must "ensure that a person not serve more time than he is sentenced." Floyd, 232 Wis. 2d 767, ¶ 23 (citation omitted). Carter cannot rely on a constitutional argument because he was legitimately confined in Illinois for Illinois offenses that were unrelated to his offense in Wisconsin. He is seeking dual credit.
B. "In Connection With"
¶ 169. Determining that a defendant was "in custody" within the meaning of Wis. Stat. § 973.155(1) does not settle the issue of sentence credit. The court also must determine whether all or part of the custody for, which sentence credit is sought was "in connection with the course of conduct for which sentence was imposed."
¶ 170. There are numerous cases in which a defendant's request for sentence credit was denied on grounds that his custody was not "in connection with the course of conduct for which sentence was imposed." See, e.g., Elandis Johnson, 318 Wis. 2d 21; Marcus Johnson, 304 Wis. 2d 318; Floyd, 232 Wis. 2d 767; Beets, 124 Wis. 2d 372; Tuescher, 226 Wis. 2d 465; State v. Beiersdorf, 208 Wis. 2d 492, 561 N.W2d 749 (Ct. App. 1997); State v. Morrick, 147 Wis. 2d 185, 432 N.W2d 654 (Ct. App. 1988).
¶ 171. The
Elandis Johnson case establishes that:
Wis. Stat. § 973.155 imposes no requirement that credit applied toward one sentence also be applied toward a second sentence if the basis for applying the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same time. The fact that sentences are concurrent and are imposed at the same time does not alter the statutory mandate that credit toward service of a sentence be based on custody that is "in connection with" the course of conduct giving rise to that sentence: i.e., custody factually connected with the course of conduct for which sentence was imposed.
Elandis Johnson, 318 Wis. 2d 21, ¶¶ 3, 76.
¶ 172. The Elandis Johnson case pounds the necessity of a factual connection between custody and "the course of conduct for which sentence was imposed." Floyd emphasizes not only that a factual connection is necessary "for sentence credit . . . [but also that] a procedural or other tangential connection will not suffice." Floyd, 232 Wis. 2d 767, ¶ 17 (emphasis added).
¶ 173. Three cases illustrate some of the principles at play in the "in connection with" clause. These cases all present some factual "connection" or relationship between "custody" on Crime A and sentence on Crime B, but not all lead to sentence credit.
¶ 174. At one end of the "in connection with" spectrum is Beets. Beets was on probation for two drug crimes when he was arrested on a burglary charge. Beets, 124 Wis. 2d at 374. Shortly afterward he was also in custody on a probation hold because of the alleged violation of his probation by virtue of the burglary. Id. at 374. About one month later, Beets' probation was revoked and later he was sentenced on the two drug crimes. Id. at 375. Beets was given credit on the drug sentence for his days in custody from his arrest on the burglary to his sentencing on the drug crimes. Id.
¶ 175. About six months later, Beets pled guilty to the burglary and was sentenced to a prison term that was to run concurrent with the previously imposed sentence on his drug crimes. Id. He was granted sentence credit on the burglary sentence for the period from his arrest to the date he began his prison sentence on the drug crimes. Id. But Beets wanted more and filed a post-conviction motion asking for credit for the period subsequent to his sentencing on the drug crimes up to his sentencing on the burglary. Id.
¶ 176. The circuit court denied his request. Id. at 376. This determination was affirmed by the court of appeals and this court. Id. Beets contended that his sentence on the burglary was "related" to all custody with respect to the drug crimes, inasmuch as his burglary arrest had triggered the revocation of his probation and his ultimate sentence on the drug crimes. Id. at 377.
¶ 177. This court disagreed. It concluded that "the sentence on the drug charges was not related or connected to the burglary course of conduct." Beets, 124 Wis. 2d at 378.
[A]ny days spent in confinement after the revocation of probation and the imposition of sentence arise out of, and are connected not with the burglary, but the unrelated conduct which resulted in the drug convictions more than a year earlier. Thus, the offenses are not connected.
Id.
¶ 178. The court had to concede "a temporal connection . . . because it was the burglary arrest that triggered the probation hold on Beets." Id. But, it said, "any connection which might have existed between custody for the drug offenses and the burglary was severed when the custody resulting from the probation hold was converted into a revocation and sentence." Id. at 379 (emphasis added).
¶ 179. All confinement in the Beets case qualified as "custody" under Floyd principles and under Demars principles. But any "connection" between the drug crimes and the burglary was "severed" by Beets' sentence on the drug crimes.
¶ 180. At the other end of the "in connection with" spectrum is State v. Thompson, 225 Wis. 2d 578, 593 N.W.2d 875 (Ct. App. 1999). Thompson involved the revocation of a juvenile's aftercare supervision (or juvenile "parole") as a result of new offenses committed after the defendant's 18th birthday. Id. at 580. Thompson was arrested for operating a vehicle without the owner's consent, fleeing from an officer, and possession of marijuana. Id. At the time of these offenses, he was released on juvenile aftercare from confinement as a delinquent for multiple previous offenses. Id. Following his arrest, Thompson made his initial appearance, the court set bail, a "hold" for violation of aftercare supervision was placed on Thompson, and he remained in adult custody. Id.
¶ 181. About a month later, Thompson's juvenile aftercare was revoked as a result of the new offenses. Id. Two months later, he pled to the adult criminal charges. Id. About three months later, he was sentenced on those charges. Id. Over the five-month period between revocation of juvenile aftercare and sentencing on the adult offenses, Thompson spent time in both a county jail and a juvenile correctional facility. Id. at 580-81. He was given credit for his time in county jail but not for his time at Ethan Allen. Id. at 581.
¶ 182. The denial of credit for the juvenile institution confinement was reversed by the court of appeals, which distinguished the situation in Thompson from the situation in Beets. Id. at 583-84. The court said, among several points, that revocation of aftercare was not a sentence; the duration of Thompson's juvenile custody was indefinite; the duration of juvenile custody was not shortened by credit for time spent in adult custody; and confinement in a secured juvenile facility was designed as treatment, not punishment. Id. at 584 n. 2. Revocation of aftercare, the court said, represents a determination that new offenses require continuing treatment in a secured correctional facility "Thompson's continuing confinement in the juvenile system was clearly and intimately related to the pending charge." Id. It constituted custody in the juvenile system, waiting for adult court disposition. Id.
¶ 183. In sum, the juvenile system custody after revocation was "in connection with the course of conduct for which sentence was imposed," and it required sentence credit.
¶ 184. The case of Marcus Johnson falls between Thompson and Beets. In June 2001 Marcus Johnson was committed to a secured juvenile institution after being found delinquent on multiple grounds. Marcus Johnson, 304 Wis. 2d 318, ¶ 11. His supervision was extended for a second year on May 20, 2002. Id. In June 2002 Johnson battered a fellow inmate and was charged for that offense in adult court. Id., ¶ 12. He was released back to the juvenile institution on a signature bond. Id., ¶ 13. The felony battery case was tried on February 27, 2003, and Johnson was convicted. Id.,¶ 15. On May 6, 2003, the juvenile court extended Johnson's juvenile supervision for a third year. Id., ¶ 16. He was not sentenced on the felony battery in adult court until February 2004. Id., ¶ 21. The issue before this court was whether Johnson was entitled to 608 days of sentence credit on his battery sentence for all custody between the time of his arrest on the battery charge and his sentence on that charge. Id., ¶ 32. Almost all confinement during this time period was in the juvenile institution.
¶ 185. The Marcus Johnson court reached the following conclusions: (1) Johnson's initial confinement in a secured juvenile institution was completely unrelated to the felony battery. Id.,¶ 9. Moreover, the extension of his supervision for an additional year on May 20, 2002, was unrelated to the felony battery because the battery had not yet occurred. Id. (2) The extension of Johnson's supervision for a third year on May 6, 2003, was related to the felony battery because the juvenile court did factor the battery into its decision to extend supervision. Id. (3) However, the circuit court made a reasonable determination that there was an "extremely high probability" that Johnson's supervision would have been extended regardless of the June 2002 battery. Id., ¶ 23.
¶ 186. This court said: "The issue . . . is how large a factor did the June 2002 battery have to play in the decision to extend Johnson's juvenile supervision in 2003 for Johnson's juvenile custody to be `in connection with' the June 2002 battery." Id., ¶ 67.
¶ 187. The court noted that the phrase "in connection with" was "subject to both a narrow and broad interpretation. Id., ¶ 68. "Beets suggests that a narrower interpretation of the statute is appropriate." Id., ¶ 69. Then the court added: "We stated that, from the time Beets began serving his sentence on the drug charges, it became irrelevant that he was also awaiting trial on the burglary charge." Id.
¶ 188. The court quoted and approved the following language from Beets:
[T]hat any connection which might have existed between custody for the drug offenses and the burglary was severed when the custody resulting from the probation hold was converted into a revocation and sentence.
From that time on, Beets was in prison serving an imposed and unchallenged sentence; and whether he was also awaiting trial on the burglary charge was irrelevant
. . . .
because [Beets'] freedom from confinement — his right to be at liberty — was not in any way related to the viability of the burglary charge. His ability to make bail on the burglary charge became immaterial. Even had the burglary charge been dismissed, he would still have been in confinement. Thus, there is no logical reason why credit should be given on the burglary charge for his service of sentence on a separate crime.
Marcus Johnson, 304 Wis. 2d 318, ¶¶ 44, 69 (quoting
Beets, 124 Wis. 2d at 379) (citation omitted).
¶ 189. The
Marcus Johnson court went on to say:
The underlying purpose of the sentence credit statute is to afford fairness by ensuring "that a person not serve more time than that for which he is sentenced." A narrow interpretation of the phrase "in connection with" furthers this purpose. If Johnson would have been in custody
even if the June 2002 battery had never occurred, he is not being treated unfairly by not receiving sentence credit for that time.
. . . .
We . . . affirm the circuit court's finding that Johnson would have been in custody
even if the June 2002 battery had not occurred. This finding is not clearly erroneous. It is amply supported by the record. . . . Johnson's time spent in juvenile custody was not in connection with the June 2002 battery, and he is not entitled to sentence credit under Wis. Stat. § 973.155 for the entire 608 days he spent in custody after his arrest awaiting adult sentencing.
Id., ¶¶ 70, 76 (emphasis added).
¶ 190. All of Marcus Johnson's custody, like Beets' custody, satisfied the requirements set forth in Floyd and Demars. But part of his custody had no connection to his battery offense, while another part was deemed irrelevant because he would have been in custody "even if the June 2002 battery had never occurred." Id., ¶ 70.
¶ 191. This analysis is a second way of evaluating Carter's confinement in Chicago.
¶ 192. Judge McMahon found that Carter was arrested in Chicago on December 13, 2003, "on a probation violation warrant from Illinois and on the Wisconsin warrant." Accepting this as fact, it is undisputed that the Illinois warrant set bail at $5,000. Existence of a Wisconsin warrant firmed up the preexisting Illinois warrant because it indicated an additional violation of the conditions of Carter's release.
¶ 193. Carter appeared before an Illinois judge on December 15 on the Wisconsin warrant. The record does not tell us whether bail was set or denied. According to the record, however, the standard practice in Chicago is for law enforcement authorities to check on local charges before taking an extradition case before a judge. It is inconceivable that law enforcement authorities did not know anything about the robbery at the time they took Carter before a judge. Carter's own evidence says they knew. See ¶ 18 n. 1, supra. It cannot be disputed that authorities knew about the probation violation warrant, the $5,000 bond on that warrant, and Carter's need to satisfy his local obligations for violating supervision before being shipped off to Wisconsin.
¶ 194. When Carter's probation was revoked on December 15 and he was sentenced to 30 days in jail, less three days of sentence credit, his sentence severed any connection between his confinement and the Wisconsin warrant.
¶ 195. Before Carter's confinement in the jail could be "reconnected" to the Wisconsin warrant, he was arrested on the robbery. He eventually appeared in court on the robbery. Logic, experience, and common sense tell us that the court set conditions of release that Carter could not meet. It was Carter's burden to establish otherwise.
¶ 196. Carter might have chosen to fight extradition by not posting bond in the robbery case, or he might not have been able to post bond, but Judge McMahon found as a fact that "Defendant could not agree to extradition because he had a pending local charge and that local charge had to be resolved before he could be sent back to Wisconsin." This court is bound by that finding because it is not clearly erroneous.
On August 30, 2005, Patrick Carter entered a guilty plea on the reckless endangerment charge. In a colloquy with Milwaukee County Circuit Judge Mel Flanagan and others, Carter was asked how he had handled extradition. There is some ambiguity in the record about whether Judge Flanagan was speaking of extradition in 2003 before Carter's Illinois conviction or extradition in 2005 when Carter was in prison. The State said, "I think he pretty much waived extradition; is that correct?" Carter answered, "No, I had another case." Carter's defense attorney then interjected: "He [Carter] says they wouldn't let `em, because he had another case, he was — you were incarcerated." Carter replied, "Right." This discussion makes more sense with reference to 2003 than 2005. Carter did not have "another case" in 2005. He was already in prison because of his 2004 conviction.
¶ 197. In addition, Carter would have been arrested even if there had been no Wisconsin warrant.
¶ 198. Carter was on a $5,000 bond for an Illinois offense before he appeared in court on the Wisconsin warrant.
¶ 199. Carter's sentence on the DUI severed any connection between his confinement and the Wisconsin warrant.
¶ 200. Carter was charged with armed robbery before his DUI sentence expired.
¶ 201. If Carter was denied bail on the Wisconsin warrant, the denial served the acknowledged interests of Illinois at least as much as the interests of Wisconsin. The robbery charge and the unknown conditions of release on the robbery superseded and overwhelmed the effect of the Wisconsin warrant. Even if bail had been set on the Wisconsin charge and had been posted, it would not have mattered. Carter's waiver or refusal to waive extradition was irrelevant because Illinois would not have permitted Carter to leave Illinois under any circumstances until the charges against him had been resolved. As a result, he received 305 days of credit for his presentence confinement against his Illinois robbery sentence.
¶ 202. In any event, Carter deliberately delayed his return to Wisconsin by fighting the robbery charge from December 19 to October 19 — ten months. This squares with Judge McMahon's findings.
¶ 203. Carter cannot satisfy the requirement that his days of confinement in the Cook County Jail were "in connection with the course of conduct for which sentence was imposed" if this court follows the principles stated in Beets and Marcus Johnson.
VI
¶ 204. Carter's case is the embodiment of the hypothetical example set out in the special materials:
4. detention in another state based on an offense committed in that state, even if a Wisconsin warrant or detainer has also been filed.
¶ 205. The example denying sentence credit is the flip side of the example requiring sentence credit:
4. detention in jail in another state when that detention results
exclusively from a Wisconsin warrant or detainer. (Emphasis added.)
¶ 206. As noted above, the Criminal Jury Instructions Committee provided the following explanation for its examples of out-of-state confinement:
4. [1] Credit should be granted when, for example, a Wisconsin parolee is arrested in Illinois solely because of a Wisconsin warrant. [2] Credit should not be granted when a Wisconsin parolee, already in custody on Illinois charges, has a Wisconsin hold or warrant filed against him. [3] This is consistent with the conclusion that filing a detainer against one already in custody in Wisconsin does not result in "custody" under § 973.155 on the charge which is the subject of the detainer.
¶ 207. The court of appeals asserted that the Demars and Nyborg cases do not support "the proposition that a person detained in jail in another state is not `in custody in connection with' under Wis. Stat. § 973.155 unless the person is in custody exclusively pursuant to a Wisconsin warrant." Carter, 306 Wis. 2d 450, ¶ 13. The court of appeals went on:
Section IIIA(4) read together with the footnote references to Demars and Nyborg suggests that the detainer in those cases did not trigger sentence credit because the defendants were already in custody. However, that is not correct. As we explained in Demars, a "detainer" . . . simply notifies the jurisdiction in which the defendant is confined that `his [or her] custody [is] desired elsewhere.'" We specifically distinguished between a detainer and a warrant for an arrest (and other lawful means of arrest). . . . [T]here is nothing in either Demars or Nyborg that supports the proposition that, if a defendant in custody in another state both because of an arrest under the law of the state and under a Wisconsin warrant, the defendant is not "in custody" under the Wisconsin warrant for purposes of Wis. Stat. § 973.155.
Id., ¶ 18.
¶ 208. The third sentence of the committee's comment is factually correct. The committee did not over-state its reliance on the two cases when it said that Demars and Nyborg were "consistent with" the statement that "credit should not be granted when a Wisconsin parolee, already in custody on Illinois charges, has a Wisconsin hold or warrant filed against him." See ¶ 209, supra.
¶ 209. The committee is clearly correct with respect to detainers based on the facts of Demars. The committee also is correct with respect to the mere existence of an arrest warrant. State v. Villalobos, 196 Wis. 2d 141, 537 N.W2d 139 (Ct. Ap. 1995), is helpful in making this point. The court in Villalobos said:
Distinguishing
Demars, Villalobos argues that here an arrest warrant with cash bail and complaint had been issued. We disagree that the difference in the form of the legal process changes the result. The teaching of
Demars is that the mere existence of legal process does not, in and of itself, trigger custody.
Demars offered some examples of custody which would qualify for sentence credit.
Id. at 23. In a situation involving an arrest warrant,
Demars did not say that the mere existence of the warrant was sufficient. Rather,
Demars said that an
arrest was necessary.
See id. Thus,
Demars requires that the process be accompanied by some legal event or occurrence which "occasions, or is related to, confinement" on the charge referenced in the process.
Id. at 26.
Villalobos argues that he has shown this linkage because the Racine County jail records listing the various reasons for his custody include a reference to the Kenosha County charge in this case. We disagree that this kind of entry in a jail log demonstrates an "occurrence of a legal event, process, or authority" within the meaning of
Demars. See id. Like the detainer in
Demars, all this entry connotes is Racine County's awareness that Kenosha County had an outstanding warrant for Villalobos's custody.
Id. at 147-48 (citation omitted).
¶ 210. The record in the present case indicates that Carter was arrested simultaneously on two warrants, including the arrest warrant from Wisconsin. This makes the case closer in theory than a case in which an arrest warrant is issued for a person who is already in custody, either in another Wisconsin county or in another state.
¶ 211. In Wisconsin, when a court in one county issues an arrest warrant for a person who is in custody in another county, the person is not rearrested and brought before a judge in the county where he is confined. Rather, the arrest warrant serves the same purpose as a detainer. The county issuing the arrest warrant does not acquire "custody" of the person until it issues a writ and brings the person before its court.
¶ 212. In this case involving an out-of-state arrest on two different warrants, the felony arrest warrant from Wisconsin, the Illinois fugitive warrant, and the subsequent demand for requisition from the governor of Wisconsin were all functionally equivalent to a detainer — a notice to the Cook County Jail that Carter's presence was desired in Wisconsin. Strong language is used in the governor's requisition demand, but Wisconsin had no way to enforce that demand as long as Illinois had legitimate local matters pending. Illinois would not permit Carter to waive extradition until Illinois resolved its local charge. The situation would have been completely different if the Wisconsin arrest warrant and subsequent documents had been the exclusive reason for holding Carter.
¶ 213. This court must look beyond the technicalities of various legal instruments to understand what actually happened in Carter's case. If Wisconsin were required to give Carter and similarly situated persons sentence credit in situations where this state is powerless to bring those persons to Wisconsin and powerless even to speed up the process in a sister state, the state could be stripped of the ability to effectively enforce its own criminal laws. Courts must not reward a person with dual credit for committing crimes in Wisconsin and then fleeing to a jurisdiction where the person is already wanted for other crimes or where the person may commit new crimes.
¶ 214. The court of appeals also dismissed the Criminal Jury Instructions Committee's reliance on Rohl. The court said:
Rohl does not support the proposition that a defendant is not in custody in connection with a Wisconsin charge for purposes of Wis. Stat. § 973.155 if detained in another state "based on an offense committed in that state, even if a Wisconsin warrant or detainer has been filed." WIS JI — CRIMINAL SM-34A at p. 6. The reason sentence credit was denied in
Rohl was that the California and the Wisconsin post-parole revocation sentences were not concurrent; the reason was not that confinement in California did not result "exclusively from a Wisconsin warrant or detainer." Wis. JI — Criminal SM-34A at p. 5.
Carter, 306 Wis. 2d 450, ¶ 22.
¶ 215. In Rohl, the defendant was released on parole in Wisconsin after serving time on two offenses including a homicide. Rohl, 160 Wis. 2d at 327. He was permitted to go to California where his parole was to be supervised. Id. at 328. Before the transfer of parole had been accomplished, Rohl was arrested and jailed in California on new crimes. This happened on November 24, 1986. Id. The Wisconsin Division of Corrections issued a parole violation warrant against Rohl on November 26, 1986. Id.
¶ 216. Rohl was convicted of the California offenses on September 15, 1987, and sentenced on January 28, 1988. Id. at 328. He was granted 431 days of sentence credit on his four-year California prison sentence: namely, the period between his November 24, 1986, arrest and his January 28, 1988, sentence. Id.
¶ 217. Upon completion of his sentence in California, Rohl was returned to Wisconsin where a hearing examiner revoked his parole and effectively imposed a three-year sentence by determining that Rohl should forfeit three years of accumulated good time on his previous sentence. Rohl demanded "sentence" credit for all time spent in custody in California. Id.
¶ 218. The decision of the hearing examiner granted "custody credit" from April 20, 1989, when Rohl was placed "in custody solely as a result of his Wisconsin detainer," until he was received at the Wisconsin institution. The examiner said that the time Rohl served in California after his arrest until April 20, 1989, "will not be granted as custody credit as he was not being held solely as a result of the Wisconsin detainer." The circuit court affirmed this determination, stating that Wis. Stat. § 973.155 has been "interpreted to be a mirror image of the federal statute and we find a reluctance in courts to grant a dual credit in these situations where an individual's in-custody status may reasonably and arguably be attributed to two separate and distinct crimes."
¶ 219. The court of appeals affirmed on the grounds that "Rohl's credit request constitutes impermissible double credit against two non-concurrent sentences." Rohl, 160 Wis. 2d at 327. The court said: "Socalled `dual credit' — where an offender can receive credit for a single episode of jail time toward two (or more) sentences — will be granted only for sentences which are concurrent." Id. at 330. In fact, this statement neither asserts nor implies that dual credit must be afforded on all concurrent sentences.
¶ 220. In reaching its decision, the Rohl court did not criticize the hearing examiner or the circuit court, nor did it say that a concurrent sentence must result in dual credit. It approvingly cited Boettcher, where the court noted that the "federal courts are firm and unanimous that there shall be no dual credit for the same presentence time served." Boettcher,144 Wis. 2d at 95. Boettcher also indicates that § 973.155 gives courts "power to give dual credit in appropriate cases," id. at 99-100, namely, "when a new sentence is imposed to run concurrently with a revoked probation." Id. at 100 n. 4. See Wis. Stat. § 973.155(1)(b).
¶ 221. A careful review of Rohl shows that it was not misread by the Criminal Jury Instructions Committee. Rohl's reference to concurrent sentences has been taken too far.
¶ 222. One case that generated confusion about sentence credit and concurrent sentences was State v. Ward, 153 Wis. 2d 743, 452 N.W2d 158 (Ct. App. 1989). In Ward, the circuit court sentenced the defendant to indeterminate terms of three years incarceration on each of three drug convictions. The court made the three sentences concurrent with each other but gave the defendant 233 days of sentence credit on only one of the three sentences. The court of appeals reversed, saying:
Applying presentence credit against only one of the concurrent three-year terms defeats the concurrent nature of the sentence because the first term is reduced to two years and 132 days, while the remaining two terms stand at three full years. Thus, implementation of the concurrent sentences imposed by the trial court requires that the 233-day credit be applied against each of the concurrent three-year terms.
Id. at 745 (footnote omitted).
¶ 223. Subsequent court decisions interpreted the Ward language as requiring identical sentence credit on all concurrent sentences imposed at the same time. This principle was shattered in State v. Elandis Johnson, 2008 WI App 34, 307 Wis. 2d 735, 746 N.W2d 581, aff'd 2009 WI 57, 318 Wis. 2d 2, 767 N.W2d 207, where the court of appeals showed that Ward's presentence custody was exactly the same in all three drug cases, which required that the same sentence credit be given in all three cases.
¶ 224. When this court reviewed Elandis Johnson, it unanimously affirmed the court of appeals' clarification of Ward. It also drew on supportive language in the special materials, see Elandis Johnson, 318 Wis. 2d 21, II 63 (explaining that there will be situations when the periods of time for which credit is due on unrelated concurrent sentences will not line up with each other) (citing Wis. JI — Criminal SM-34A, at 12). The resulting principles of law are quoted in Elandis Johnson, 318 Wis. 2d 2, ¶ 66.
¶ 225. In sum, the court of appeals in this case was misled about the facts. It was not informed about and did not examine federal law interpreting 18 U.S.C. § 3568. It did not fully appreciate the bases for the examples in the special materials. It misread Marcus Johnson, and it did not have the benefit of the two Elandis Johnson decisions, explaining Ward and the relationship between sentence credit and concurrent sentences.
VII
¶ 226. The majority opinion attempts to straighten out the factual discrepancies between Judge McMahon's findings and the facts set out by the court of appeals. However, there is no way to sugarcoat the failure of the parties to submit the complete facts to Judge McMahon. The parties did not advise the circuit court about what conditions of release, if any, were set by Illinois courts on the Wisconsin warrant nor on the Illinois robbery. This serious failure was disrespectful to the court because it has deprived us of critical information that we requested.
¶ 227. With respect to the law, the majority opinion relies on the incorrect analysis of the court of appeals and a mistaken interpretation of the Elandis Johnson case to award Carter 305 days of credit on his Wisconsin sentence for virtually all of his presentence confinement in Illinois. Under the majority's mistaken interpretation of Elandis Johnson, it appears that Carter would be eligible for 305 days of sentence credit even if his Wisconsin sentence were consecutive to his Illinois sentence. At the same time, the opinion denies Carter any credit for the "actual days in custody" in Wisconsin awaiting a trial on the Wisconsin charge.
¶ 228. This dissent has previously addressed the court of appeals' legal analysis, but the Elandis Johnson case requires separate comment.
¶ 229. The Elandis Johnson case stands, in part, for the proposition that Wis. Stat. § 973.155(1) does not provide sentence credit for time in custody that is not related, or is only procedurally related, to the matter for which sentence was imposed. Elandis Johnson, 318 Wis. 2d 21, ¶ 45. That is why Johnson lost. He could not show a factual connection between "the four days of presentence custody in 2004 and the course of conduct for which the sentences in the 2005 case were imposed." Nor could he show "a factual connection between the 50 days of presentence custody in 2005 and the course of conduct for which the sentence in the first 2004 case was imposed." Id., ¶ 49, Thus, Johnson moved to a legal argument that when a defendant receives concurrent sentences on different offenses and those sentences are imposed at the same time, the defendant is entitled to the same sentence credit on all concurrent sentences, irrespective of whether he was in custody in connection with the course of conduct for which a particular sentence was imposed. The court unanimously rejected that contention.
¶ 230. In applying Wis. Stat. § 973.155 to the facts in Elandis Johnson, this court repeatedly emphasized that sentence credit must be based on "custody" that is factually connected to the course of conduct for which sentence was imposed. A factual connection is a prerequisite. The court did not say, however, that once a defendant shows some factual connection between confinement and the course of conduct for which sentence was imposed, he automatically earns sentence credit.
¶ 231. A defendant must establish, first, that he was "in custody" within the meaning of the statute, satisfying the tests in both Floyd and Demars. He then must show that the "custody" for which he claims credit is not only factually related, but also is not "precluded," or "severed," or made irrelevant by other facts or legal process. Here, we should ask how large a factor the Wisconsin warrant was in the decision to arrest Patrick Carter and keep him in custody from December 13, 2003, to October 19, 2004.
¶ 232. The majority is correct in recognizing that Carter is not entitled to sentence credit in Wisconsin for the time he spent in custody in Illinois on his sentence for DUI. He was sentenced to 30 days. He served only nine days, which included three days of credit, including the day his probation was revoked. He was on $5,000 bail until he was revoked. Carter is not entitled to credit for any of those nine days on his Wisconsin sentence.
¶ 233. The majority is also correct that Carter is not entitled to credit for any confinement in Illinois after his October 19, 2004, sentence on the Chicago robbery. This is standard analysis under Beets.
¶ 234. What the majority fails to appreciate is that Carter's confinement in the Cook County Jail between December 19, 2003, and October 19, 2004, is grounded almost entirely upon Illinois' insistence that he be present for his trial on the robbery. Carter had committed a serious, violent crime in Chicago. He was already a convicted felon who had once "beat[en]" a homicide charge in Cook County. He had violated the conditions of supervision on his DUI and been on the lamb for more than a year before he was picked up. When he was arrested, he was carrying a gun. Yes, Wisconsin wanted him, but Wisconsin would have to wait until Illinois "finish[ed] that local charge." According to Judge McMahon, Carter "could not agree to extradition because he had a pending local charge and that local charge had to be resolved before he could be sent back to Wisconsin."
¶ 235. Carter failed to establish that his detention in Illinois resulted exclusively from a Wisconsin warrant or detainer. Had he provided such evidence, he would have been entitled to credit for every day of such confinement. In fact, Carter's own evidence — the Townsend transcript, the affidavits of his own investigator, and his own statements in court — establish that Illinois would not have permitted Carter to leave Illinois because of the pending robbery charge. Thus, he is entitled to zero credit in Wisconsin for his Illinois confinement. The Wisconsin paperwork played virtually no part in Carter's continuing 10-month confinement.
¶ 236. In 2005 Carter was brought to Wisconsin for trial on the Wisconsin charge. At that time, he was unquestionably in Wisconsin "custody." He was awaiting trial on the Wisconsin charge for which he was sentenced. Carter was entitled to credit for all his presentence confinement in Wisconsin because he would not have been in a Wisconsin jail awaiting trial except for the Wisconsin charge. This credit would comply with the statute and in no way affect his sentence in Illinois.
¶ 237. The majority opinion is legally mistaken in many ways, but it is also problematic because it is likely to inspire countless motions for additional sentence credit based upon the new principles of law announced in the opinion.
¶ 238. For the reasons stated, I respectfully dissent.
¶ 239. ANNETTE KINGSLAND ZIEGLER, J. (dissenting).
I dissent from the majority opinion, which awards the defendant 305 days of sentence credit on a Wisconsin sentence for time spent in Illinois custody on an Illinois criminal charge. I fear that the majority opinion confuses sentence credit and misplaces the burden of proof that properly lies with the defendant. In addition, the majority asserts that its sentence credit analysis applies only with respect to concurrent sentences, see majority op.,¶ 6 ("hop[ing] [the majority] ha[s] provided greater clarity in awarding sentence credit in a case involving concurrent sentences"), but then fails to explain how or why its analysis would not apply to consecutive sentences. While the majority proclaims that it clarifies the law, it actually muddles the sentence credit issues with which trial courts are routinely confronted. Apparently the majority cabins its analysis* to the unique facts of this case. The majority's lack of analysis with respect to sentence credit due for related verses unrelated charges and concurrent verses consecutive sentences is telling. The majority opinion must be intended to apply only to a future case where a defendant is in custody out of state on charges in both that state and Wisconsin, and a Wisconsin court later pronounces a concurrent sentence to one imposed in the other state, and the exact same credit is due in each. These facts are unique indeed.
¶ 240. On July 23, 2003, the defendant was charged with first-degree recklessly endangering safety in violation of Wis. Stat. § 941.30(1). On that same date, a felony warrant and authorization for extradition was executed in Wisconsin for the defendant on the above charge. On December 13, 2003, the defendant was arrested in Chicago, Illinois. The arrest report lists both the Wisconsin warrant and an outstanding Illinois warrant for probation violation. The defendant remained in Illinois custody until June 1, 2005, when he was conveyed to Milwaukee County pursuant to the Interstate Agreement on Detainers. On August 30, 2005, the defendant pled guilty to first-degree recklessly endangering safety and was sentenced to twelve-and-a-half years of imprisonment, comprised of seven-and-a-half years in initial confinement and five years on extended supervision — imposed concurrently with the defendant's existing sentence in Illinois. The circuit court granted the defendant's request for 91 days credit, which the State and defense attorney stipulated to as it comprised the period between his initial appearance in Milwaukee County (June 1, 2005) and his sentencing in Milwaukee County (August 30, 2005).
¶ 241. Ten months later, on June 29, 2006, the defendant filed a post-conviction motion in Milwaukee County seeking 324 days of sentence credit representing the time he spent in Illinois custody between the date of his arrest in Illinois and the date of his sentencing on the Illinois charge. The circuit court denied the defendant's motion for 324 days of sentence credit; however, the circuit court granted the defendant an additional credit of six days for a total of 97 days of sentence credit. This adjusted amount included the period between the defendant's arrest in connection with the Wisconsin charge (May 26, 2005) and his sentencing on that charge (August 30, 2005).
¶ 242. As the utterly deficient record in this case makes clear, the most appropriate time to determine sentence credit is at the sentencing itself. Four-and-a-half years later, the majority finds itself drawing assumptions from next to no records detailing the defendant's custody in Illinois. I decline to join the majority's award of 305 days of sentence credit to a defendant who failed to `present any Illinois court records proving that he was "in custody" in Illinois "in connection with the course of conduct for which sentence was imposed" in Wisconsin. See Wis. Stat. § 973.155(1)(a). For that reason, I respectfully dissent.
¶ 243. The defendant now seeks credit for time spent in presentence custody in Illinois from the day of his arrest in Illinois (December 13, 2003) until his sentencing on the Illinois charge (October 19, 2004). The defendant claims that this presentence custody was both "in connection with the course of conduct for which sentence was imposed" in Wisconsin, Wis. Stat.
¶ 973.155(1)(a), as well as in connection with the robbery charge in Illinois. However, merely because the defendant was initially brought to court in connection with a Wisconsin charge, if that indeed happened in this case, does not mean that he deserves credit for time spent in Illinois custody absent proof that he was held in custody on the Wisconsin charge. The record is devoid of any proof that the defendant was held in Illinois on cash bail or otherwise because of the Wisconsin charge. The defendant fails to provide official court records which would prove that Illinois filed a fugitive complaint or held an extradition proceeding based upon the Wisconsin warrant. At best, it seems that the defendant was ultimately returned on a detainer, for which it is clear that no sentence credit is due.
¶ 244. I agree with the majority that Wis. Stat. § 973.155(1)(a) provides for sentence credit "for all days spent in custody in connection with the course of conduct for which sentence was imposed." Despite the majority sidestepping the issue, the statute indeed requires that the defendant be "in custody" "in connection with" the Wisconsin charge. See id.; State v. Johnson, 2009 WI 57, ¶ 27, 318 Wis. 2d 21, 767 N.W2d 207 (explaining that § 973.155(1)(a) requires two determinations: whether the defendant was in custody and whether the custody was in connection with the course of conduct for which sentence was imposed). The "in connection with" language has a nexus with the "in custody" language, which tethers the defendant's in-custody status to a specific charge. See Johnson, 318 Wis. 2d 21, ¶¶ 32-33. For example, in State v. Beiersdorf, 208 Wis. 2d 492, 498-99, 561 N.W2d 749 (Ct. App. 1997), the court of appeals declined to grant the defendant 44 days of sentence credit against his sexual assault sentence for time spent in presentence custody resulting from a bail jumping charge, despite the bail jumping charge arising out of a violation of the defendant's personal recognizance bond on the sexual assault charge. The court of appeals explained:
[B]ecause 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.
Id. In other words, there was no factual connection between the presentence custody and the sentence imposed on the sexual assault charge, "despite the obvious procedural connection between the bail jumping charge and the original sexual assault charge: i.e., without the sexual assault charge there would have been no personal recognizance bond, and thus, no bail jumping."
Johnson, 318 Wis. 2d 21, ¶ 35 (citing approvingly the court of appeals' analysis in
Beiersdorf). I fear that the majority today has blurred the clear distinction that has heretofore existed as to when sentence credit is due and when it is not. The "in custody in connection with" language of § 973.155(1)(a) has never been interpreted to require only that law enforcement have knowledge of an outstanding warrant. In this case, sentence credit for being in custody on an Illinois charge should not be awarded to the defendant who has shown merely that a police report suggests that law enforcement knew about an outstanding Wisconsin warrant at the time he was initially arrested in Illinois. The burden of proving both the "in custody" status and its connection with the course of conduct for which the
Wisconsin sentence was imposed rests with the defendant.
State v. Villalobos, 196 Wis. 2d 141, 148, 537 N.W2d 139 (Ct. App. 1995). Here, the defendant has failed to meet his burden.
¶ 245. In State v. Villalobos, the court of appeals held that Villalobos was not entitled to sentence credit because he failed to meet his burden of demonstrating that the custody for which he sought credit was in connection with the charge he was sentenced on. Id. At the time of his arrest in Racine County for possession of a controlled substance, Villalobos was the subject of an outstanding Kenosha County warrant and complaint for a charge of injury by conduct regardless of life. Id. at 145. Following his sentence on the Racine County drug matter, Villalobos was transferred to Kenosha County, where he was eventually convicted as a habitual criminal of recklessly endangering safety and sentenced to 40 months in prison. Id. Villalobos claimed that he was entitled to sentence credit for the days he spent in presentence custody in Racine County. Id. at 146. The court of appeals disagreed. Id. at 148.
Following Villalobos's conviction for possession of a controlled substance, the Racine County Circuit Court placed him on probation for 18 months and ordered him to serve 30 days in jail as a condition of probation. State v. Villalobos, 196 Wis. 2d 141, 144, 537 N.W2d 139 (Ct. App. 1995). Villalobos was credited with 53 days of presentence custody. Id. Because the credit of 53 days was in excess of the 30 days imposed as a condition of probation, Villalobos did not have to serve any further time on the drug matter. Id. It was those remaining 23 days of "excess" Racine County presentence custody for which Villalobos sought credit against the Kenosha County sentence. Id. at 146.
¶ 246. Quoting State v. Demars, 119 Wis. 2d 19, 26, 349 N.W2d 708 (Ct. App. 1984), the Villalobos court ruled that "the custody for which credit is sought `must . . . result from the occurrence of a legal event, process, or authority which occasions, or is related to, confinement on the charge for which the defendant is ultimately sentenced.'" 196 Wis. 2d at 146. The court of appeals rejected Villalobos's argument that under the Demars test, his Racine County custody was sufficiently related to or "in connection with" the Kenosha County arrest warrant and complaint. Id. at 146-48.
¶ 247. As the Villalobos court explained, in Demars, the defendant sought credit against a Winnebago County sentence for time spent in presentence custody served in Fond du Lac County relating to a Fond du Lac probation revocation proceeding. Id. at 146-47 (citing Demars, 119 Wis. 2d at 21). The Winnebago County Sheriffs Department filed a detainer with Fond du Lac County, requesting that Fond du Lac County detain Demars should he post bond and have his probation hold lifted. Demars, 119 Wis. 2d at 21. The court of appeals held that Demars was not entitled to sentence credit against the Winnebago County sentence because the detainer did not occasion Demars' custody on the Winnebago County charge for which he was sentenced:
The communication by the Winnebago county authorities to the Fond du Lac county authorities did not occasion the custody of Demars on the Winnebago county charges in any sense. Demars was not arrested based upon the communication, nor, based on the record before [the court of appeals], was bail set or any bail information conveyed.
Id. at 26.
¶ 248. According to the Villalobos court, "[t]he teaching of Demars is that the mere existence of legal process does not, in and of itself, trigger custody." 196 Wis. 2d at 147. The process must "be accompanied by some legal event or occurrence which `occasions, or is related to, confinement' on the charge referenced in the process." Id. (quoting Demars, 119 Wis. 2d at 26). Accordingly, the mere existence of an arrest warrant, like in Villalobos's case, is not sufficient to trigger custody. Id.
¶ 249. Villalobos argued that the Racine County jail records demonstrated the necessary link under the Demars test, as a reference to the Kenosha County charge was included in a list of the various reasons for his custody. Id. The court of appeals rejected his argument that the jail log entry demonstrated an "`occurrence of a legal event, process, or authority' within the meaning of Demars." Id. at 147-48 (quoting Demars, 119 Wis. 2d at 26). "Like the detainer in Demars, all this entry connote [d] [was] Racine County's awareness that Kenosha County had an outstanding warrant for Villalobos's custody." Id. at 148. The court of appeals noted that the record was silent as to the reason for Villalobos's arrest in Racine County. Id. Accordingly, the court of appeals denied Villalobos sentence credit for time spent in presentence custody in Racine County, concluding that "[w]hat is lacking is sufficient evidence demonstrating that Villalobos's initial arrest was based on the Kenosha County warrant or that the warrant was ever executed against Villalobos during his Racine County custody." Id.
¶ 250. In this case, the defendant has introduced no proof that he was arrested and held in custody in Illinois on the Wisconsin charge of first-degree recklessly endangering safety. Simply stated, this far after the fact, the record is woefully inadequate with respect to what credit should be due the defendant. The majority awards the defendant sentence credit based on pure speculation. As was the case in Villalobos, the record lacks any sufficient evidence demonstrating that the Wisconsin warrant was ever even executed against the defendant during his Illinois custody. See id. While the arrest report documenting the defendant's arrest in Chicago, Illinois may list both an Illinois probation violation warrant and a Wisconsin warrant, the fact that the Wisconsin warrant was listed in the arrest report does not alone sufficiently demonstrate that the defendant was subsequently held in custody in Illinois on the Wisconsin charge. There are no court records to indicate that bail was set for the defendant's Wisconsin case in Illinois or that he was in custody on the Wisconsin charge. Instead, it is apparent that the defendant was held in Illinois to answer to an Illinois criminal charge.
¶ 251. Even assuming that the defendant was arrested in Illinois on the Wisconsin warrant, the record is void of any court records proving that Illinois filed a fugitive complaint or held an extradition proceeding. The record fails to contain any court documents or entries which would evidence that any case was filed or extradition proceeding held on the Wisconsin charge such that the defendant would be entitled to credit for being "in custody in connection with" the Wisconsin charge. See Wis. Stat. § 973.155(1)(a).
¶ 252. The holding of a defendant for extradition is not without certain requirements and protections. The Extradition Clause of the United States Constitution governs interstate extradition and provides, that any person accused of committing an offense in one state, who flees to another state, must be returned to the state where the crime was committed upon request of that state's executive authority. U.S. Const., art. IV, § 2, cl. 2; 18 U.S.C. § 3182 (2006); see also Black's Law Dictionary 605 (7th ed. 1999). Section 14 of the Uniform Criminal Extradition Act, 11 U.L.A. 599 (2003), codified in Wisconsin at Wis. Stat. § 976.03(14) and in Illinois at 725 Ill. Comp. Stat. 225/14 (2009), "permit[s] the police in one state, upon reasonable information that a person had committed a felony in another state, to arrest that person without a warrant when found in the asylum state." State v. Hughes, 68 Wis. 2d 662, 668, 229 N.W2d 655 (1975). That arrest is "known as a prerequisition arrest and is for the purpose of holding the defendant until a governor's requisition warrant can be issued upon the demanding state's initiation of extradition proceedings." Id. Regardless of whether the arrest is made with a fugitive warrant, Wis. Stat. § 976.03(13); 725 Ill. Comp. Stat. 225/13, or without a fugitive warrant, § 976.03(14);. 725 Ill. Comp. Stat. 225/14, a judge in the asylum state must issue a fugitive complaint, stating the grounds for the alleged fugitive's arrest. See Hughes, 68 Wis. 2d at 669. In this case, the record does not contain any such complaint, official documentation, or court case file entries.
The cited statutory provisions in Wisconsin and Illinois, which codify the Uniform Criminal Extradition Act, are substantively identical. All references to the Wisconsin Statutes are to the 2007-08 version, and all references to the Illinois Statutes are to the 2009 version.
¶ 253. Following the arrest and the issuance of the fugitive complaint, pursuant to Wis. Stat. § 976.03(15) and 725 Ill. Comp. Stat. 225/15, a judge in the asylum state must determine whether the appearing defendant is the person charged with committing the crime in the demanding state and whether the defendant is a fugitive from justice. See Hughes, 68 Wis. 2d at 669. If so, the judge must then issue a prerequisition warrant for the defendant's confinement pending the issuance of the governor's warrant from the demanding state. § 976.03(15); 725 Ill. Comp. Stat. 225/15; Hughes, 68 Wis. 2d at 669. Pending the governor's warrant, the defendant may be committed to county jail in the asylum state for a period not to exceed 30 days. § 976.03(15); 725 Ill. Comp. Stat. 225/15. The defendant may be released on bail by bond, so long as the defendant was not charged with a crime punishable in the demanding state by death or life imprisonment. § 976.03(16); 725 Ill. Comp. Stat. 225/16. If the governor's warrant is still not received, commitment or bail may be extended up to 60 days. § 976.03(17); 725 Ill. Comp. Stat. 225/17. Again, in this case, no such prerequisition warrant or extradition case file entries exist in the record before us.
¶ 254. In fact, we are not presented with any Illinois court records which would prove that the extradition proceeding, mandated by the Uniform Criminal Extradition Act and codified at Wis. Stat. § 976.03 and 725 Ill. Comp. Stat. 225, actually took place in this case. See State ex rel. Ehlers v. Endicott, 188 Wis. 2d 57, 63, 523 N.W2d 189 (Ct. App. 1994) ("The aim of interstate extradition is to [] provide a summary and mandatory proceeding." (citing Michigan v. Doran, 439 U.S. 282, 288 (1978))). The majority concludes that based upon "the records available, the procedures set forth in the Uniform Act appear to have been followed." Majority op., ¶ 76. However, the mandates of the Uniform Criminal Extradition Act demand more than a mere "appearance" of being followed. See Doran, 439 U.S. at 288 ("Interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution.").
¶ 255. The evidence that the majority so heavily relies on to conclude that an extradition proceeding took place consists of two non-authenticated teletype messages sent from the Chicago Police Department Extradition Unit to the Milwaukee Police Department. The first message, sent on December 15, 2003, purportedly gives notice that the defendant "appeared our ct this date refused to waive formal extradition" and requested that the Milwaukee Police Department "plz proceed with [its] governors warrant application." The second message, sent March 5, 2004, purportedly advised that the "governors warrant has not yet been received" and that the "fugitive charge must be dismissed" if the warrant is not received within the 90-day period of commitment authorized by sections 16 and 17 of the Uniform Criminal Extradition Act. It is apparently these teletype messages alone that the circuit court relied upon and the majority now uses to find that the defendant in fact appeared in Cook County Court on December 15, 2003, for an extradition proceeding and was thereafter held in custody in connection with the Wisconsin charge for almost a year.
¶ 256. We do have in the record a governor's warrant that Governor Jim Doyle apparently signed on February 6, 2004, to extradite the defendant back to Wisconsin. However, we do not know where the document came from or whether it was ever received in Illinois. The majority concedes as much. Despite recognizing that "the present record does not document the date" on which service of the warrant actually occurred, if at all, the majority nevertheless makes the extraordinary assumption that the warrant was received by Illinois within the 90-day period of commitment because (a) evident by the second teletype message, Illinois was aware on March 5, 2003, that the Wisconsin charge "must be dismissed" if the governor's warrant is not received within the 90-day period of commitment, and (b) Illinois held the defendant based on the Wisconsin charge until October 20, 2004, well after the 90-day period would have expired. Majority op., 71. The bare record before us simply does not support such an incredible leap of logic. Even the majority cannot explain why Illinois would dismiss the extradition case and release the defendant on October 20, 2004, if in fact the governor's warrant had been received. See id., ¶ 73 ("The record is silent about why, after the governor's warrant issued, the extradition case was dismissed, and the defendant was transferred to the Illinois prison system."). Based upon the majority's assumptive logic, it is just as conceivable that Illinois never actually received the governor's warrant and instead held the defendant on the Illinois charge until he was sentenced on that charge on October 19, 2004. Again, based upon the assumptions that the record forces the court to make, how can the majority conclude that the defendant met his burden of proof?
¶ 257. In any event, at oral argument, the parties agreed that the defendant was transferred to Milwaukee County on June 1, 2005, pursuant to the Interstate Agreement on Detainers Act. See Wis. Stat. §§ 976.05, 976.06. The Act "establishes procedures that require cooperation between the `receiving state' that is requesting the person in custody, and the `sending state' that currently has custody of the accused." State v. Townsend, 2006 WI App 177, ¶ 10, 295 Wis. 2d 844, 722 N.W2d 753. "A `detainer' is not executed against a person, nor, standing alone, can it legally authorize custody." Demars, 119 Wis. 2d at 24. Because sentence credit requires the defendant be "in custody in connection with the course of conduct for which sentence was imposed," Wis. Stat. § 973.155(1)(a), no sentence credit results from a detainer. When then does the majority conclude that the defendant ceased to be held "in custody" on the Wisconsin charge and instead was held on a "detainer" for which no credit is due?
¶ 258. The confusion caused by the majority opinion may not be limited to interstate situations. Sentence credit issues arise on a daily basis in trial courts all across Wisconsin. Some sentence credit issues can be difficult, but prior to today, it seemed clear that in order to be awarded sentence credit, the defendant needed to be "in custody in connection with" the case for which the defendant was being sentenced. The majority opinion confuses the fact that a defendant may receive credit for time spent in custody before bond or bail is set by the court, but once set, additional sentence credit is determined from that point forward based on whether the defendant was required to stay in custody on bail in connection with the case for which the defendant is being sentenced. For example, it is not atypical for a defendant to be brought to court, in custody, on two or more charges for which bond or bail will be set in two or more cases. Bail or bond is set separately for each case. A cash bail may be set on one case, and a personal recognizance bond may be set in the other case(s). Assuming the defendant cannot post cash bail and therefore remains in custody in that case, sentence credit from that point forward is due in that case. However, at sentencing in the case for which the defendant received a personal recognizance bond, and therefore is not in custody, the defendant is not due sentence credit for the time spent in custody on the cash bail case, even though he or she was initially arrested and brought into court on both cases. Likewise, in this case, even if the defendant was initially brought to court in connection with a Wisconsin charge along with the Illinois charge, that does not mean that the defendant deserves sentence credit against the Wisconsin sentence for time spent in Illinois custody absent proof that he was held in Illinois custody on that Wisconsin charge.
¶ 259. In conclusion, the defendant has failed to prove that he is entitled to sentence credit on the Wisconsin charge for time spent in Illinois custody. He failed to meet his burden of proving that he was "in custody" "in connection with the course of conduct" for which the Wisconsin sentence was imposed. See Wis. Stat. § 973.155(1)(a); Villalobos, 196 Wis. 2d at 148. Merely because the defendant may have been arrested in Illinois with law enforcement possessing knowledge that he had an outstanding Wisconsin warrant does not automatically translate into dual sentence credit in Illinois and Wisconsin for nearly a year of time spent in Illinois custody, especially given the lack of proof that he was held in Illinois custody on the Wisconsin charge. The utterly deficient record is devoid of any proof that the defendant was held in Illinois on cash bail stemming from the Wisconsin charge. There are also no court records before us which prove that Illinois filed a fugitive complaint or held an extradition proceeding based upon the Wisconsin warrant. At best, it seems that the defendant was ultimately returned to Wisconsin on a detainer, for which no sentence credit is due.
¶ 260. For the foregoing reasons, I respectfully dissent.