State v. Christopher L. McGee
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COURT OF APPEALS DECISION DATED AND FILED April 27, 2010 David R. Schanker Clerk of Court of Appeals NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62. 2009AP854 Cir. Ct. No. 2008CF2939 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I Appeal No. STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. CHRISTOPHER L. MCGEE, DEFENDANT-APPELLANT. APPEAL from an order of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Affirmed. Before Fine, Kessler and Brennan, JJ. ¶1 PER CURIAM. Christopher McGee, pro se, appeals from an order denying a postconviction motion under WIS. STAT. § 974.06 (2007-08).1 McGee 1 noted. All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise No. 2009AP854 pled guilty to felony fleeing from police and the circuit court sentenced him to two years of initial confinement and one year of extended supervision, to run consecutively to time now being served and [20]03CF005408. McGee argues that the circuit court could not order this sentence to run consecutively to the sentence in the 2003 case because he had not yet been revoked in the 2003 case when this sentence was imposed. McGee is incorrect and, therefore, we affirm. ¶2 WISCONSIN STAT. § 973.15(2)(a) states, in pertinent part, that a court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously. The sentence in the 2003 case was imposed on December 9, 2004, when the court sentenced McGee to one year and two months of initial confinement and one year and six months of extended supervision.2 The plain language of § 973.15(2)(a) authorizes the sentence imposed in this case. ¶3 McGee relies on Drinkwater v. State, 69 Wis. 2d 60, 74, 230 N.W.2d 126 (1975), where the supreme court ruled that [a] sentence imposed upon the revocation of probation cannot be made consecutive to a sentence previously imposed. McGee s argument has already been rejected by this court. In State v. Cole, 2000 WI App 52, ¶¶2, 5, 233 Wis. 2d 577, 608 N.W.2d 432, the defendant similarly relied on Drinkwater to argue that a consecutive sentence could not be imposed because parole had not yet been revoked. Noting that WIS. STAT. § 973.15 had been amended since Drinkwater, this court held that the 2 The particulars of the sentence in the 2003 case are taken from the court record events maintained by the clerk of the circuit court, available on the Wisconsin Circuit Court Access website. McGee does not dispute the accuracy of that information. 2 No. 2009AP854 sentence on the first conviction was imposed at the time of sentencing and, therefore, consecutive sentences were permissible under § 973.15(2)(a). Cole, 233 Wis. 2d 577, ¶¶7-8; see also State v. Thompson, 208 Wis. 2d 253, 256-57, 559 N.W.2d 917 (Ct. App. 1997) (where a four-year prison sentence was imposed and stayed and the defendant was placed on probation, [r]evocation of probation is not required to actually impose the sentence. The revocation merely triggers the execution or implementation of the sentence. ) (emphasis in original)). ¶4 Because WIS. STAT. § 973.15(2)(a) expressly permits consecutive sentences under the facts of this case, the circuit court properly denied McGee s motion. By the Court. Order affirmed. This opinion will not be published. 809.23(1)(b)5. 3 See WIS. STAT. RULE
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