State v. Marcus W. Johnson

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2007 WI 107 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2005AP1492-CR State of Wisconsin, Plaintiff-Respondent, v. Marcus W. Johnson, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: July 18, 2007 April 11, 2007 Circuit Dane David T. Flanagan JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner there were briefs and oral argument by Brian C. Findley, assistant state public defender. For plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general with whom on the brief was J.B. Van Hollen, attorney general. 2007 WI 107 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP1492-CR (L.C. No. 2002CF1593) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent, FILED v. JUL 18, 2007 Marcus W. Johnson, David R. Schanker Clerk of Supreme Court Defendant-Appellant. APPEAL from a judgment and an order of the Circuit Court for Dane County, David T. Flanagan, Judge. Affirmed and cause remanded. ¶1 on DAVID T. PROSSER, J. certification by the This case is before the court court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2005-06).1 ¶2 We are asked to address whether a juvenile is entitled to sentence credit for the time he spends in custody under a 1 All references to the Wisconsin Statutes are to the 200506 version, unless otherwise indicated. No. 2005AP1492-CR juvenile commitment or an extension of a juvenile commitment, pending his conviction and sentencing on an adult charge. ¶3 Marcus W. Johnson (Johnson) was adjudicated delinquent on one count each of theft and disorderly conduct and two counts of battery. He was committed to a secure juvenile institution. While confined under this commitment at an institution, Johnson committed a battery against another resident. He was arrested and charged with felony battery as an adult. convicted and sentenced on that charge. At He was later the sentencing hearing, Johnson requested 608 days of sentence credit for his time in custody from his arrest until sentencing. ¶4 The circuit court denied Johnson's request for sentence credit, concluding that the days spent in custody prior to sentencing on the adult battery charge were not connected with the battery Wis. Stat. § 973.155.2 charge In its for order the purposes denying of Johnson's postconviction motion, the Dane County Circuit Court, David T. Flanagan, Judge, reasoned that, irrespective of the presence of a signature bond, Johnson's custody was not in connection with the battery because it was "virtually certain" that he would have been in custody under juvenile commitment regardless of the 2 Wisconsin Stat. § 973.155(1)(a) provides that "[a] convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed." Credit is given for custody while awaiting trial, while being tried, and while awaiting sentencing after trial. Wis. Stat. § 973.155(1)(a) 1., 2., and 3. 2 No. battery. 2005AP1492-CR In support of its order, the court cited Johnson's negative pattern of behavior over the period of his juvenile commitment, emphasizing that Johnson had accumulated a total of 233 charges and 497 days in security while confined under his juvenile commitment. ¶5 to The court of appeals certified the case to this court determine "whether time spent confined under a juvenile commitment should be awarded as sentence credit against an adult sentence." The court of appeals noted that one of its prior decisions, State v. Thompson, 225 Wis. 2d 578, 593 N.W.2d 875 (Ct. App. 1999), appeared to conflict with the basic sentence credit principles set forth in State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985). ¶6 In Beets, the court determined that where an adult defendant was arrested for burglary while on probation for drug offenses, and probation to the be burglary revoked, arrest the caused defendant was the not defendant's entitled to credit on his subsequent burglary sentence for time spent in custody after the sentence on the drug offenses because that "custody" was not "in connection with the course of conduct" for which the burglary sentence was imposed. that a sentence on one offense severs custody on an unrelated offense. The Beets court ruled any connection Id. at 379. with In Thompson, however, the court decided that the Beets sentence credit rule did not apply to confinement under a juvenile commitment because a juvenile commitment is not Wis. 2d at 583. 3 a sentence. Thompson, 225 No. ¶7 "[n]ow 2005AP1492-CR In its certification, the court of appeals noted that presented Thompson, [the] with circumstances decision in that different case from seems those problematic in and possibly inconsistent with basic sentence credit principles set forth in cases such "[u]nless there is sentence credit a as [Beets]." meaningful between The court distinction juvenile observed for that purposes confinement and of adult incarceration that we have not uncovered, it seems that either Beets or Thompson was wrongly decided." ¶8 The case before us requires that we interpret Beets and Thompson to determine whether Johnson should be entitled to any sentence credit for time in custody from his arrest until his sentencing on the adult battery conviction. After careful examination of the cases, we conclude that it is not necessary for us to choose between Thompson and Beets. Rather, we distinguish Thompson on its facts and hold that Beets sentence credit principles apply in this case. ¶9 Applying Beets sentence credit principles, we hold that Johnson is not entitled to sentence credit on the adult battery charge because the time he spent in custody between his arrest and his sentence was not custody "in connection with" the adult battery. First, Johnson is not entitled to credit for time in custody from his arrest to the May 6, 2003, extension hearing in Johnson was subject to entirely on conduct preceding battery. the juvenile court a because, juvenile and during that commitment unrelated to period, order based the adult Therefore, under Beets, Johnson's 2002 extension of 4 No. 2005AP1492-CR his juvenile commitment precluded any connection to the later adult battery. Second, Johnson is not entitled to credit for time in custody from the May 6, 2003, extension of his juvenile commitment up to the time of sentencing because, even though the adult battery was a factor in the juvenile court's decision to extend Johnson's circuit court juvenile (Judge supervision Flanagan) for determined another that year, the the juvenile court (Judge Nicks) would have extended Johnson's supervision even if that battery had never occurred. time in custody from the extension Therefore, Johnson's hearing to the time of sentencing was not in connection with the adult battery. ¶10 Because the circuit court's determination is supported by the record, we affirm the circuit court and hold that Johnson is not entitled to sentence credit of 608 days. We do, however, remand the case to the circuit court for an evidentiary hearing to determine the reason why Johnson spent 32 days in the Dane County Jail between his arrest and sentencing for the battery charge and whether he is entitled to sentence credit for those 32 days. BACKGROUND FACTS AND PROCEDURAL HISTORY ¶11 In June 2001 Johnson was adjudicated delinquent on one count each of theft and disorderly conduct and two counts of battery. juvenile While at This adjudication led to his commitment to a secure institution, Ethan Allen, the Ethan Johnson's Allen School institutional (Ethan Allen). adjustment was reported as "poor," and he was unable to "maintain control over his behaviors." In December 2001 Johnson was transferred to the 5 No. Mendota Juvenile Treatment Center (MJTC). 2005AP1492-CR His supervision was to expire on May 22, 2002; however, the Dane County Circuit Court, Diane Nicks, Judge (juvenile court) reviewed Johnson's case on May 20, 2002, and extended Johnson's supervision for a period of one year. prior record; his The court based its decision on Johnson's various needs, such as his psychological, mental health, educational, and social needs; and the status of his progress. ¶12 Less than two weeks later, on June 2, 2002, Johnson battered a criminal complaint, Johnson dayroom after threatening resident he manner. at began MJTC. According to asked staff was looking Johnson at stood by the another up as Dane to leave resident if to County in leave, the a but instead approached the resident and punched him in the mouth at least twice, causing the resident to lose two of his teeth. Johnson was arrested on a charge of battery on June 3, 2002. He remained confined at the MJTC because the MJTC was determined "the best and proper facility" for Johnson to stay at that time. On June 13, 2002, Johnson was transferred back to Ethan Allen in part because of Johnson's continuing lack of progress and the recent battery. ¶13 Johnson's initial appearance in the Dane County Circuit Court for the June 2002 felony battery charge was on July 16, 2002. At that time the court ordered a signature bond. The court explained to Johnson that with the signature bond, he would be returned to Ethan Allen. 6 No. ¶14 2005AP1492-CR Johnson waived a preliminary hearing, but demanded a reverse waiver hearing to determine whether the circuit court should transfer jurisdiction to the juvenile court. On December 5, 2002, following a hearing, Judge Flanagan denied Johnson's request for reverse waiver. ¶15 At a bench trial on February 27, 2003, Judge Flanagan found Johnson guilty of felony battery to an inmate in a secure juvenile treatment facility, Wis. Stat. § 940.20(1) Wis. Stat. § 939.635 and in violation the (2001-02). He of provisions continued the of signature bond, and Johnson was returned to Ethan Allen. ¶16 juvenile On May 6, 2003, the juvenile court extended Johnson's supervision for another year. Judge Nicks relied explicitly on a court report prepared by the State of Wisconsin Department (DOC), of Corrections, supporting the Division of Juvenile request for Johnson's DOC's Corrections extension. The report included Johnson's prior history and commentary on his adjustment to placement. The report revealed that, upon Johnson's to Johnson transfer accumulated from MJTC nine Ethan additional Allen charges in June for 2002, disobeying orders, disruptive conduct, threats to staff, attempted battery to staff, creating an unsanitary condition, and inappropriate sexual conduct. accumulated 45 Between July 2002 and December 2002, Johnson additional charges at Ethan Allen, causing multiple relocations within Ethan Allen to areas with increased security. also noted The report recounted Johnson's June 2002 battery and that Johnson was charged 7 criminally with another No. 2005AP1492-CR battery that occurred in November 2002, in Waukesha County, when Johnson and another resident pushed a third resident to the ground causing him to strike his head, and then proceeded to stomp on the resident. ¶17 The report also commented on Johnson's progress: [Johnson] appears to be having problems in the classroom setting. He continues to accumulate room confinement hours for not following class rules, disruptive behavior, disrespect to staff, lack of effort at school, and refusal. Marcus appears to struggle with following the rules of the classroom and respecting those in positions of authority. His lack of respect for his teachers is a serious concern and he will have to work hard to learn how to respect those with authority. The report noted that Johnson was meeting with his psychologist on a regular basis and that his sessions with the psychologist were working well. prescribed Johnson also met with a psychiatrist and was medication for his behavioral problems. However, Johnson was reported for his misuse of medication after saving rather than taking the medication. ¶18 The report noted: [Johnson] continues to struggle with remaining free of verbally and physically aggressive behaviors. He is frequently verbally aggressive and disrespectful to his teachers and other school personnel. [Johnson] has had numerous physically aggressive incidents as well since his last extension hearing. As a result of his inability to control his anger, [Johnson] has proceeded to batter t[w]o youth which subsequently has led to . . . two Battery by Prisoner cases pending in the Adult courts of Waukesha and Dane Counties. [Johnson] needs to get himself under control. The report stated that Johnson was in the AODA education program at MJTC; however, due to the 8 frequency of his security No. 2005AP1492-CR confinements and numerous behavior problems, he was never able to successfully complete the program. The report stated that Johnson had had six security confinements during the reporting period, but "[t]o his credit . . . he has shown some improvement in his behavior by remaining out of security for the last two months." The demonstrated report his noted ability that to Johnson interact had at "only least recently minimally appropriately with his peers" and that he had "most certainly struggled over the last year to have positive relationships with his peers as . . . seen by his numerous security confinements and verbally and physically aggressive actions toward his peers." ¶19 The report further noted that Johnson was working on improving his social skills and that much work in this area would be needed for a lengthy period of time. The report explained why extension was appropriate: At this time, an extension of [Johnson's] Dispositional Order is appropriate. He has not successfully completed any of the treatment programming deemed appropriate for him such as the Cognitive Intervention Program, the Anger Management program, Victim Awareness and the Foundations of Recovery AODA Program. An extension of his commitment would also allow for his pending adult charges to be settled in the Adult courts of Dane and Waukesha Counties. ¶20 The report also explained why no efforts had been made to return Johnson to his home: At this time, no efforts have been made to return [Johnson] to the parental home. [Johnson] has consistently demonstrated behaviors that have warranted retention in a secure correctional facility. 9 No. 2005AP1492-CR When [Johnson] decides to act appropriately and participate in and successfully complete the treatment programming deemed appropriate for him, he will then be considered for a return to the community. Until such time, [Johnson] will need to be retained within the confines of a secure correctional setting for the protection of the public. The report concluded with the final recommendations: It is respectfully recommended that Marcus Johnson's supervision with the Department of Corrections, Division of Juvenile Corrections be extended for a period of one year or as much time as the court deems appropriate. An extension of his juvenile supervision would allow an adequate amount of time for [Johnson] to participate in treatment programming as well as for an adequate amount of time for community supervision once he is felt to be appropriate for a return to the community. ¶21 Eight months into his second extension, Johnson was sentenced on the June 2002 battery. On February 10, 2004, Judge Flanagan sentenced months followed by Johnson four-and-a-half to 18 years of initial extended confinement supervision.3 Johnson then requested 608 days of sentence credit for the time from his arrest to sentencing.4 The State contested Johnson's request, and the court ordered the parties to submit briefs on whether sentence credit was appropriate. 3 Johnson's second November 2002 battery charge was read in at sentencing against the wishes of the assistant district attorney in Waukesha County where the second offense occurred. 4 In its certification, the court of appeals questioned whether Johnson should be credited with 617 days. Because we do not grant sentence credit, we do not attempt to determine the proper calculation. We note that, for reasons not apparent from the record, Johnson did not pursue his right to a speedy trial, and the prosecution did not move swiftly. 10 No. ¶22 2005AP1492-CR On April 22, 2004, the court denied Johnson's request for sentence credit. The court noted that a signature bond was authorized for Johnson from July 16, 2002, until his sentence on February 10, 2004. basis whatsoever The court stated that it was "aware of no for concluding that the defendant was 'in custody' as to the offense in question after the opportunity for signature bond was provided."5 The court concluded that "[c]learly, there [wa]s no basis whatsoever to award credit for any [time] spent in custody on and after the date the signature bond was authorized." ¶23 bond, the As to the period between the arrest and the signature court distinguished Thompson and denied sentence credit on the basis of "the extremely high probability" that Johnson would have been in custody regardless of the battery. The court based its decision on the presentence investigation report (PSI) and a February 9, 2004, email update from the DOC. The court noted that the PSI and email update "set out a most troubling picture of a virtually incorrigible young offender" 5 Because Johnson was on a signature bond, he was eligible for pretrial release on the battery charge. This distinguished him from a defendant unable to post cash bail before trial. Johnson was not released, however, because he was subject to the preexisting juvenile commitment order. 11 No. 2005AP1492-CR and revealed that Johnson had a total of 233 charges and 497 days in security.6 ¶24 2005, Johnson a that claiming filed the distinguished Thompson. postconviction circuit motion court on March 21, erred when it Johnson also claimed that his trial counsel was ineffective in not opposing a signature bond and then in failing to ask that the signature bond be changed to cash bail when it became apparent that Johnson would not be released from custody despite the signature bond. Johnson also argued that the signature bond was a nullity due to his mental retardation and other intellectual deficits. ¶25 motion. The court denied Johnson's postconviction The court denied the first claim because it sought to relitigate already circuit the issue resolved in of its sentence April credit 22, that 2004, the order. court The had court addressed Johnson's ineffective assistance of counsel claim and found that trial counsel's performance was not deficient because the presence of cash bail would not have changed the outcome of the case. sentence The credit court for explained the period that before the basis for authorization denying of the signature bond had equal application to the entire period of 6 It is important to note that the circuit court did not have the entire record before it when it denied sentence credit. On December 19, 2006, this court granted Johnson's motion to supplement the record with the May 6, 2003, extension order and transcript of the May 6, 2003, extension hearing. In addition, the court ordered that the record be supplemented with a copy of the March 31, 2003, court report prepared by the Department of Corrections, Division of Juvenile Corrections. 12 No. custody. 2005AP1492-CR The court reasoned that "[h]ad the defendant been held on cash bail, pre-sentence credit would not have been proper given the virtual certainty custody regardless." order denying that he would have remained in The court quoted from the April 22, 2004, sentence credit, which discussed Johnson's negative pattern of behavior over the period of his custody. The court also dismissed Johnson's claim that the signature bond was invalid due to Johnson's intellectual deficits, concluding that such a holding would lead to the remarkable result that a defendant with mental signature bond. bond had no limitations would not be permitted a In addition, the court noted that the signature bearing on Johnson's effort to obtain sentence credit for the reasons previously stated. ¶26 Johnson appealed, and the court of appeals certified the case to this court. The court of appeals noted that the decision in Thompson might conflict with the decision in Beets, and therefore certified the case so that we could determine the proper method for determining sentence credit under Wis. Stat. § 973.155. STANDARD OF REVIEW ¶27 the The issue in this case requires the court to determine appropriate amount of Wis. Stat. § 973.155(1)(a). to interpret sentence credit for Johnson under Such an inquiry requires the court Wis. Stat. § 973.155. Statutory interpretation presents a question of law that we review de novo. Floyd, 2000 WI 14, ¶11, 232 Wis. 2d 767, 606 N.W.2d 155. 13 State v. No. ¶28 2005AP1492-CR "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). We interpret statutory language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; unreasonable results." plain meaning, the and reasonably, Id., ¶46. statute is to avoid absurd or Where this process yields a not ambiguous and according to this ascertainment of its meaning. is Id. applied If the language is ambiguous, however, we look beyond the language and examine the scope, history, context, and purpose of the statute. Id., ¶48. ¶29 When a circuit court makes findings of fact, the court's findings are subject to a clearly erroneous standard of review. State v. Turner, 136 Wis. 2d 333, 343, 401 N.W.2d 827 (1987). ANALYSIS ¶30 We begin with the language of Wis. Stat. § 973.155. Wisconsin Stat. § 973.155 governs sentence credit and provides in pertinent part: (1)(a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, "actual days spent in custody" includes, without limitation by enumeration, 14 No. 2005AP1492-CR confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs: 1. While the offender is awaiting trial; 2. While the offender is being tried; and 3. While the offender is awaiting imposition of sentence after trial. Wis. Stat. § 973.155(1)(a) 1., 2., and 3. (emphasis added). ¶31 Wisconsin Stat. § 973.155(1)(a) determinations. connection imposed." Id. with Id. two See State v. Gavigan, 122 Wis. 2d 389, 391, 362 N.W.2d 162 (Ct. App. 1984). "in custody." requires The first is whether Johnson was The second is whether the custody was "in course of conduct for which sentence was The parties do not dispute, and we agree, that time spent in a juvenile correctional facility was time spent in custody. See Magnuson, 2000 Wis. Stat. § 946.42(1)(a); WI 19, ¶15, 233 see Wis. 2d 40, also 606 State v. N.W.2d 536 (construing the meaning of custody in Wis. Stat. § 973.155 and relying on the statutory definition of custody found in the escape statute, Wis. Stat. § 946.42(1)(a)). ¶32 Thus, the critical question is whether the 608 days of presentence custody were served "in connection with the course of conduct for which [the battery] sentence was imposed." ¶33 credits We are reminded sometimes presents that "[c]omputation complex, issues to a sentencing court." conflicting of sentence and confusing State v. Demars, 119 Wis. 2d 19, 27, 349 N.W.2d 708 (Ct. App. 1984.) 15 This case is no exception. No. 2005AP1492-CR The resolution of this case turns on how narrowly or broadly we interpret the phrase, "in connection with the course of conduct for which sentence was imposed." Under a narrow interpretation, Johnson would not be entitled to any sentence credit because he would have been in custody for the 608 days regardless of the June 2002 battery charge. Under a very broad interpretation, Johnson would be entitled to full sentence credit because the June 2002 battery was always a factor in his continuing custody and therefore his custody was "in connection with" the June 2002 battery, even if it was an insignificant factor in decisions to keep Johnson in custody. ¶34 Under other facts and circumstances, the phrase, "in connection with the course of conduct for which sentence was imposed," has been deemed ambiguous and subject to different reasonable 392. We interpretations. conclude circumstances reasonable as that well See Gavigan, the phrase because it interpretation. is is 122 Wis. 2d 389 ambiguous under at these open to more than one Consequently, we may refer to legislative history to discern the section's intent and purpose. Floyd, 232 Wis. 2d 767, ¶20. A. Legislative History and Purpose of Wis. Stat. § 973.155 ¶35 Wisconsin Stat. § 973.155 was enacted after this court's call for action in Klimas v. State, 75 Wis. 2d 244, 250- 16 No. 51, 249 (1977).7 N.W.2d 285 See State Wis. 2d 86, 91, 423 N.W.2d 533 (1988). v. 2005AP1492-CR Boettcher, 144 Klimas was the first opinion of this court requiring circuit courts to credit time spent in custody against a sentence ultimately imposed. Boettcher, 144 Wis. 2d at 90. See The Klimas court concluded that it was a violation of equal protection of the law for a court not to award sentence credit for time spent in custody prior to sentencing on account of a defendant's financial inability to Klimas, 75 Wis. 2d at 245. post bail. Although the Klimas holding was limited to sentence credit in cases of financial inability to post bail, the court encouraged broader rule based on existing federal law. adoption Id. at 251. of a The court noted that 18 U.S.C.A. § 3568 required sentence credit for all custodial time in satisfaction of the imposed sentence. ¶36 The legislature Wis. Stat. § 973.155. responded by Id. enacting Ch. 353, Laws of 1977; 1977 S.B. 159. Notes of the Legislative Council make clear that the federal law referred to in Klimas, as well 7 as the Model Penal Code, Notes of the Legislative Council reveal that the need for state legislation was also fueled by this court's decisions in State ex rel. Solie v. Schmidt, 73 Wis. 2d 76, 242 N.W.2d 244 (1976) (holding that period of 82 days spent in jail while awaiting probation revocation proceedings must, on due process grounds, be credited against the sentence to be served following revocation), and Kubart v. State, 70 Wis. 2d 94, 233 N.W.2d 404 (1975) (inviting the legislature to eliminate due process problems caused by the statutory prohibition against crediting time spent in jail after sentencing but prior to arrival at the prison). See Wisconsin Legislative Council Report No. 6 to the 1977 Legislature: Legislation Relating to Credit for Time in Jail, 1. 17 No. influenced Wisconsin the passage Legislative of the Council sentence Report 2005AP1492-CR statute.8 credit No. 6 to the 1977 Legislature: Legislation Relating to Credit for Time in Jail, 2; see Boettcher, "[u]nderlying 144 the Wis. 2d at adoption 92. of As stated in Wis. Stat. § 973.155 Floyd, was the intent to bring the law of Wisconsin into conformity with the broad federal statute, which provided for sentence credit for any pre-sentence confinement period, whether arising from a financial inability to post bail, unwillingness to grant release on bail, or for the purpose of examination." Floyd, 232 Wis. 2d 767, ¶22 (citing Boettcher, 144 Wis. 2d at 91-92; and Legislative Council Notes to 1977 Senate Bill 159, § 9). ¶37 This court has recognized that the purpose of Wis. Stat. § 973.155 in providing sentence credit is "to afford fairness" and "ensure 'that a person not serve more time than he 8 Legislative Council notes provide: Senate Bill 159 would establish clear statutory guidelines for handling and crediting all time spent in confinement, regardless of the status of the person involved at the time of confinement. If enacted, the Bill would clarify a currently unclear and chaotic area of law, as discussed above, and would bring Wisconsin law into conformity with the recommended minimum criminal justice sentencing standards of the American Bar Association, Section 7.09 of the American Law Institute's Model Penal Code, federal criminal sentencing procedures as set forth in 18 U.S.C. s. 3568 and the laws of many other states. Wisconsin Legislative Council Report No. 6 to the 1977 Legislature: Legislation Relating to Credit for Time in Jail, 2. 18 No. is sentenced.'" 2005AP1492-CR Floyd, 232 Wis. 2d 767, ¶23 (quoting Beets, 124 Wis. 2d at 379). 2. Interpretation of Beets and Thompson ¶38 With this context and purpose of Wis. Stat. § 973.155 in mind, we turn to the task given us by the certification from the court of appeals, namely to determine "whether time spent confined under a sentence credit juvenile against an commitment adult should be sentence." To awarded as answer this question, we are called upon to examine Beets and Thompson and either to reconcile the seeming discrepancies between the two cases or to overrule one in favor of the other. We begin with summaries of the two cases. ¶39 In Beets, Robert Darnell Beets (Beets) was on probation for his conviction of two drug crimes when he was arrested for burglary and taken into custody on the burglary charge. Beets, 124 Wis. 2d at 374. A few days later he was also in custody on a probation hold for the alleged violation of his probation. Id. About one month later, his probation on the drug offenses was revoked and later Beets was sentenced on the drug crimes. Id. at 375. For the period from his arrest to his sentencing, Beets was given credit for his custody in connection with the sentences on the drug crimes. ¶40 crimes, About sentenced previously to a months pled Beets six guilty term imposed that drug after Id. his to the was to sentences. sentencing burglary run Id. on the charge concurrent Beets drug and was with the was granted sentence credit toward the satisfaction of his burglary charge 19 No. 2005AP1492-CR from the date of arrest to the date he commenced his prison sentence on the crimes.9 drug Id. Beets brought a postconviction motion asserting that he was also entitled to credit for the period subsequent to his sentencing on the drug crimes while he was awaiting resolution of the pending burglary charge. Id. The postconviction motion was denied, and the court of appeals affirmed. ¶41 Id. at 376. The question before this court in Beets was: [W]hether a person who is on probation for an earlier crime (delivery of controlled substance), is apprehended for the commission of a new and separate crime (burglary), and then, after a period of custody on a probation violation hold, is revoked and is sentenced to state prison on the earlier drug crime is entitled to time credit on the burglary sentence for the days served under the prison sentence for the drug crime while awaiting trial and eventual sentencing on the second crime the crime of burglary. Id. at 373-74. ¶42 We concluded that Beets was not entitled to sentence credit on the burglary sentence for the period following his sentence on the drug crimes. Id. at 374. Beets argued that his custody upon being sentenced for the drug crimes was "related to the offense [burglary] for which the offender is ultimately sentenced" because it was the burglary arrest that triggered the revocation of his probation. Id. at 377. We rejected this argument, asserting that "the sentence on the drug charges was not related or connected to the burglary course of conduct." 9 The Beets court did not rule on the propriety of awarding dual credit. State v. Beets, 124 Wis. 2d 372, 379 n.5, 369 N.W.2d 382 (1985). 20 No. Id. at 378. 2005AP1492-CR Citing Flowers v. DHSS, 81 Wis. 2d 376, 386, 260 N.W.2d 727 (1978), we explained that "the element of punishment in parole revocation is attributable to the crime for which the parolee was originally convicted and sentenced." Id. We continued, "'Revocation is thus a continuing consequence of the original conviction from which parole was granted.'" Id. (quoting Flowers, 81 Wis. 2d at 386). ¶43 parole We held that the Flowers principle, which addressed revocation, revocation. in Id. confinement was equally applicable to probation We concluded, therefore, that "any days spent after the revocation of probation and the imposition of sentence [arose] out of, and [were] connected not with the burglary, but with the unrelated conduct which resulted in the drug convictions more than a year earlier." ¶44 Id. We affirmed the court of appeals' holding "that any connection which might have existed between custody for the drug offenses and the burglary was severed when the custody resulting from the probation sentence." hold was converted Id. at 379 (emphasis added). 21 into a revocation We continued: and No. 2005AP1492-CR 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 his 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. Id. ¶45 In Thompson, the court of appeals was faced with a similar fact situation, except that Thompson involved revocation of juvenile aftercare supervision (or juvenile "parole") as a result of a new offense committed shortly after the defendant's 18th birthday. In that case, Dwayne E. Thompson (Thompson) was arrested for operating a vehicle without the owner's consent, fleeing from an officer, and possession of marijuana. 225 Wis. 2d at 580. Thompson, At the time of his arrest, Thompson was still on juvenile aftercare supervision for two counts of firstdegree recklessly endangering safety, while armed, endangering safety by dangerous use of weapon a by dangerous a weapon, child. Id. and possession Following his of a arrest, Thompson made his initial appearance, bail was set, a "hold" for violation of aftercare supervision was placed on Thompson, and he remained in adult custody at the Milwaukee County Jail. Id. About a month later, Thompson's juvenile aftercare supervision was revoked as a result of the new offenses, and he remained in custody at the Milwaukee County Jail. Id. later, three Thompson pled guilty to 22 the About two months charges. His No. 2005AP1492-CR sentencing was adjourned; however, he remained in custody at the Milwaukee County Jail. Id. About a week later, he was returned to Ethan Allen to continue serving his juvenile commitment after revocation and to await his adult Sentencing was delayed three times. months later, charges. Thompson was court sentencing. Id. at 580-81. sentenced for the Id. About three three adult Id. at 581. ¶46 At the sentencing, the circuit court awarded Thompson credit for the days spent in custody at the Milwaukee County Jail between his arrest and his return to Ethan Allen. The Id. court, however, denied Thompson's request for credit for the days spent in sentencing. ¶47 custody at Ethan Allen until the day of Id. Thompson filed circuit court denied. a postconviction motion, which the The circuit court concluded that Thompson was not entitled to credit for time spent at Ethan Allen because that custody was "in connection with a juvenile commitment after his conduct connection sentence resulted whatsoever was imposed in revocation, with in the this course case." and of Id. had absolutely conduct at 582 for no which (internal quotations omitted). ¶48 The court of appeals reversed. Thompson conceded that if custody at Ethan Allen constituted a sentence, then Beets would govern and Thompson would not be entitled to credit. at 583. Id. He argued, however, that his custody at Ethan Allen did not constitute a sentence and, therefore, Beets did not govern the case. Id. at 583-84. The court of appeals agreed, citing 23 No. authority for the proposition that "a 2005AP1492-CR juvenile court's dispositional commitment of a delinquent to Ethan Allen (and, by extension, the commitment period revocation) is not a 'sentence.'" ¶49 from juvenile parole Id. at 583. In an extensive footnote, the court adopted passages Thompson's analogies may revocation of after following brief be to drawn probation revocation differences exist." the of effect between or that "although adult parole, aftercare, and sentencing, juvenile significant, Id. at 584 n.2. certain after commitment, substantive There is a difference between an adult whose probation or parole has been revoked and a juvenile whose aftercare has been revoked. The former is serving pursuant a sentence and can be released only to a discretionary parole grant (after attaining parole eligibility) or upon mandatory release. Id. The latter can be returned to the community on aftercare or through a change in placement and is not date. subject to parole eligibility or a mandatory release an adult's criminal applicable sentence Id. ¶50 sentence A is second difference shortened by is the that amount of credit, but time spent in custody is not creditable against the juvenile delinquency commitment. ¶51 parole, A third revocation difference of Id. is juvenile that, unlike aftercare revocation supervision is of not continuing punishment for the offense that led to the juvenile's original delinquency adjudication. juvenile aftercare is based on 24 Id. "the Rather, revocation of juvenile authorities' No. determination that [the juvenile's] new 2005AP1492-CR offense requires continuing treatment in a secured correctional facility." In short, system "Thompson's was charge." clearly Holding continuing and confinement intimately Thompson in in related juvenile the to custody juvenile the was Id. pending less for continuing punishment and more for continuing custody, while the juvenile system waited for the adult court disposition. ¶52 After distinguishing Beets and Id. noting these differences, the Thompson court likened the Thompson case to State v. Baker, 179 Wis. 2d 655, 508 N.W.2d 40 (Ct. App. 1993), in which the court concluded that the defendant was entitled to sentence credit for the time he was in secure juvenile detention awaiting waiver of juvenile jurisdiction, against the sentence imposed following Wis. 2d at 585. his waiver to adult court. Thompson, 225 The Thompson court noted that failure to grant credit in this case would be "to simply accept that, whenever an adult charged with a crime remains under the jurisdiction of a juvenile court commitment, the State, unilaterally, could place the adult in custody at a juvenile facility while awaiting trial and sentencing, and could therefore preclude the sentencing court from awarding credit for pre-sentence custody." 586. The sentence court credit held that was inconsistent Wis. Stat. § 973.155. Id. such potential with Id. at manipulation the intent The court concluded: Therefore, in the unusual circumstances of this case, we conclude that although Thompson's time at Ethan Allen also could be considered to have been in connection with his juvenile commitment, "regardless 25 of of No. 2005AP1492-CR of [that] basis for the confinement," his custody at Ethan Allen was "connected to the offense for which sentence [was] imposed." Id. (first emphasis added). ¶53 In its certification in the present case, the court of appeals noted that "[u]nless there is a meaningful distinction for purposes of sentence credit between juvenile confinement and adult incarceration that we have not uncovered, it seems that either Beets or Thompson was wrongly decided." We do not think, however, that we have to choose between Beets and Thompson to resolve the case before us. We choose instead to distinguish Thompson on the facts and "unusual circumstances" of that case. ¶54 Although the Thompson court appeared to preclude application of Beets on the basis that a juvenile commitment was not a sentence, we do not think that Thompson requires us to preclude application of Beets and other applicable sentencing cases to the facts and circumstances here. adult This is so because Thompson ultimately sidestepped the application of Beets by distinguishing between the purpose of revocation of juvenile aftercare supervision and the purpose of revocation of probation. See Thompson, 225 Wis. 2d at 584 n.2. While the Beets court noted that revocation of probation is continuing punishment for Wis. 2d at 378, the the original, Thompson underlying court offense, noted that Beets, revocation 124 of juvenile aftercare supervision is not continuing punishment for the original offense but continuing treatment required by the new offense. Thompson, 225 Wis. 2d at 26 584 n.2. Thus, the No. 2005AP1492-CR Thompson court concluded that Thompson's continuing confinement "was clearly and intimately related to the pending charge." ¶55 This case does not involve revocation of Id. juvenile aftercare supervision, where a juvenile who was once at liberty is taken into custody for a new offense. This case involves a juvenile who was not at liberty but was still in custody under a juvenile commitment when he committed a new offense. Therefore, Thompson is distinguishable. Nonetheless, Johnson relies on Thompson to argue that ¶56 juvenile confinement is not a sentence and, therefore, the Beets rule i.e., that a sentence on one offense severs any connection with custody on an unrelated offense does not apply. ¶57 We do not think, however, that the distinction between custody following a juvenile commitment and custody following an adult sentence precludes application of Beets under the facts and circumstances of this case. the differences supervision preclusion between and of between custody revocation revocation Beets in While Thompson's rationale that of certain following of juvenile parole/probation situations, juvenile the commitment aftercare may warrant distinction and custody following adult conviction does not warrant the preclusion of Beets sentence credit principles to all juvenile commitments. ¶58 Thompson noted that an adult serving a sentence could be released only pursuant to a discretionary parole grant or upon mandatory release, while a juvenile could be returned to the community at any time. Id. Johnson cites this difference between a juvenile commitment and an adult sentence to support 27 No. 2005AP1492-CR his proposed bright line rule that "a juvenile held in juvenile corrections pending criminal sentencing is always custody in connection with the criminal charges." added.) held in (Emphasis Johnson argues that because a juvenile commitment is not a determinate sentence of fixed duration and because the needs of the juvenile are individually assessed, see Wis. Stat. § 938.01(2)(c) and (f), DOC authorities take pending criminal charges into account when deciding whether to continue a juvenile's confinement or to release the juvenile on aftercare supervision. argues, See pending Wis. Stat. § 938.357(4)(a). criminal charges are Thus, always Johnson connected to continued confinement in the juvenile correctional system. ¶59 like the We fail to see how an adult indeterminate sentence, sentences commitment. in Beets, is different from a juvenile Under an indeterminate sentence, individual needs and circumstances are assessed to determine whether to grant discretionary parole, commitment. See § 1.06 (Oct., Wis. 2d 349, DHSS, 71 could argue like DOC review Wis. Stat. § 304.06; 2000); 265 much State N.W.2d 285 Wis. 2d 169, that, 238 once ex rel. (1978); N.W.2d 66 a Wis. Clarke State of Admin. v. ex (1976). defendant a becomes juvenile Code Carballo, rel. Tyznik PAC 83 v. Therefore, one eligible for discretionary parole, all pending criminal charges are factors in the Parole Commission's decision to deny parole and keep a defendant in custody on an unrelated charge. ¶60 Beets involved indeterminate sentences; nevertheless, the Beets court did not adopt the kind of blanket rule that 28 No. Johnson proposes. "a juvenile sentencing 2005AP1492-CR In fact, to adopt such a rule and hold that held in is always juvenile held in corrections custody in pending criminal connection with the criminal charges" would allow what the Beets court cautioned against: "affording a right to credit against confinement in criminal matters where the period of confinement has nothing to do with the matter for which sentence credit is sought." Beets, 124 Wis. 2d at 379. ¶61 Because we see no reason to treat custody following a juvenile commitment or an extension of a juvenile commitment as fundamentally different from indeterminate sentence, we principles the Thompson to would facts preclude of custody apply this following sentence Beets case. application To of an the Beets adult credit extent under that these particular circumstances, it goes too far. C. Application of Beets ¶62 On a preliminary note, it should be understood that, to some extent, Beets does not rest on all fours with the facts of this case. The Beets rule that a sentence on one offense severs any connection with custody on an unrelated offense applies neatly in situations where the two sentences are based on decidedly different courses of conduct. ¶63 Therefore, the Beets rule applies neatly in this case to the period of time after Johnson's arrest up until the May 6, 2003, extension hearing. During that time, Johnson was already in of custody as a result a May Johnson's placement for one year. 29 22, 2002, order extending That order preceded the June No. 2005AP1492-CR 2002 battery and was based on an entirely unrelated course of conduct. Thus, under the Beets rule, the May 2002 extension precluded, rather than "severed," any connection to the June 2002 battery. The 2002 extension did not "sever" a connection with the battery because there never was a connection. ¶64 May 6, The question of sentence credit for the time from the 2003, extension directly answered clear whether the by until the application custody time of resulting of sentencing Beets because from this is it not is not extension is connected with the course of conduct (June 2002 battery) for which sentence was imposed. In a sense, the situation in this case implicates a situation that Beets did not address; that is, a situation sentences where are the imposed acts are Wis. 2d at 383 (stating first and for "truly that second sentences which the first related." See "unless are the imposed acts are for truly and second Beets, 124 which the related or identical, the sentencing on one charge severs the connection between the custody and the pending charges. And the consequences of even that contingency [are] not clear certainly not decided herein."). ¶65 In this case, the question is not so much what happens when the course of conduct is related; rather, the question is how large a factor did the related course of conduct (the June 2002 battery) play in the decision to extend Johnson's juvenile commitment in May 2003. ¶66 There is no question that the June 2002 battery was the course of conduct for which the adult sentence was imposed. 30 No. 2005AP1492-CR The circuit court (Judge Flanagan) also found that the June 2002 battery was a factor in the juvenile court's decision on May 6, 2003, to However, extend the Johnson's circuit court supervision for another also that there found year. was an "extremely high probability" that Johnson's extension would have been extended regardless of the June 2002 battery. In its postconviction order, the circuit court reiterated that sentence credit was inappropriate "given the virtual certainty that [Johnson] would have remained in custody regardless" because of the extension of his juvenile commitment. ¶67 June The issue, therefore, is how large a factor did the 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. ¶68 To decide this issue, we must interpret the meaning of "in connection with." As previously noted, this phrase has been deemed ambiguous under other facts and circumstances. It is also ambiguous under these circumstances because it is subject to both a narrow and broad interpretation. Advocating for a broad interpretation, Johnson cites the dictionary meaning of "connection" ("being connected" or "an association or relationship") and the Criminal Jury Instruction Committee to support his proposition that the word "connection" applies to even limited Instruction relationships. Committee, "The According requirement to the that Criminal custody Jury be 'in connection with' the course of conduct means simply that the custody must be, at least in 31 part, the result of a legal No. status . . . stemming from the sentence is being imposed." course of conduct 2005AP1492-CR for which Wis. JI Criminal SM34A at IIIB (1995). ¶69 Such connection an with," expansive however, interpretation has been of the discounted in phrase "in applicable case law and runs contrary to the purpose of the sentence credit statute. statute Beets suggests that a narrower interpretation of the is appropriate. In Beets, we applied a narrow interpretation of Wis. Stat. § 973.155 to explain why sentence credit was inappropriate. began serving irrelevant charge. his that he We stated that, from the time Beets sentence was also on the drug awaiting charges, trial on it the became burglary This was so 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. Beets, 124 Wis. 2d at 379. ¶70 this We think a similar interpretation is appropriate in case to determine whether Johnson's connection with the June 2002 battery. custody was in 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." Id. A narrow interpretation of the phrase "in connection with" furthers this purpose. 32 If Johnson would have No. been in occurred, custody he even is not if being the June treated 2002 2005AP1492-CR battery unfairly by had not never receiving sentence credit for that time. ¶71 been in Thus, we custody must even determine if the whether June 2002 Johnson would have battery had never occurred. ¶72 In his April 22, 2004, ruling Judge Flanagan said: The intent of the statute seems obvious; if the defendant was in custody because of the conduct which leads to conviction, credit should be assigned. The corollary, however, appears equally plain; [i]f the defendant would have been in custody notwithstanding the conduct that led to conviction, no freedom was denied and no credit is due. . . . . Had there been no criminal conduct and no arrest, defendant Thompson would have been subject only to the limited supervisory custody of the juvenile "aftercare" parole. . . . By contrast, this defendant [Johnson] is in a very different circumstance. Had he committed no battery [in June 2002], there is no basis upon which this court could even suspect that he would not have remained in the custody of the Department [of Corrections] on June 4th and thereafter. . . . . . . Only if the court ignores the extremely high probability that the defendant would have been in custody regardless of the battery, can credit be assigned. (Emphasis added.) In denying the postconviction motion on May 20, 2005, Judge Flanagan wrote: [I]t was and remains crystal clear to this court that defendant's behavior during the period in question was such that there was no reasonable possibility that he 33 No. would have been prosecution. . . . out of custody but 2005AP1492-CR for this [H]is conduct was such that he would not have been out of custody even if this prosecution never took place. ¶73 We view these statements as findings of fact, applying a narrow interpretation of the "in connection with" language in Wis. Stat. § 973.155. We believe this interpretation is correct. ¶74 The record in this case was supplemented at the request of the defendant after we accepted certification. The supplemental material involves the May 6, 2003, hearing on the extension of Johnson's juvenile commitment. made his "extremely high probability" When Judge Flanagan assessment about the likelihood of Johnson's continuing commitment, he did not have the May 6, 2003, extension order, hearing transcript, or the court report deciding to on which extend Judge Johnson's Nicks so heavily supervision. We relied when described in detail the contents of that court report in our discussion of the facts. to Judge If Judge Flanagan had had the information provided Nicks, that information would have fortified his assessment that Johnson's juvenile commitment would have been extended even if the June 2002 battery had not occurred. ¶75 The DOC's recommendation to extend supervision focuses primarily on the 54 charges that Johnson accumulated while in custody, his lack of progress, and the perceived need to extend his supervision to allow Johnson to participate in treatment programming. This is not a case where the juvenile court was 34 No. 2005AP1492-CR simply holding Johnson in custody to see what happened on his battery sentence. ¶76 We therefore 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. amply supported by the record. juvenile custody was battery, and is he not not It is Thus, Johnson's time spent in in connection entitled to with the sentence June credit 2002 under Wis. Stat. § 973.155 for the entire 608 days he spent in custody after his arrest awaiting adult sentencing. ¶77 The fact that Johnson was on signature bond from July 16, 2002 to February 10, 2004, is not significant in this case because of Johnson's preexisting juvenile commitment order. ¶78 eligible Although for the signature pretrial release bond and seemingly "severed" made the Johnson connection between his custody and the crime, its real effect was to send Johnson back to Ethan Allen. Thompson speaks of the potential manipulation of sentence credit by transferring a juvenile under adult court supervision to the custody of a juvenile commitment. Thompson, 225 Wis. 2d at 586. If Johnson's placement at Ethan Allen had deprived him of sentence credit that he was otherwise due, he might have had cause to complain about the effectiveness of his counsel. In this case, however, the court permitted Johnson to return to the institution to which he was already committed. juvenile He did facility not is lose sentence logically the credit. best place If to a secure maintain custody of a juvenile who is subject to the jurisdiction of an 35 No. adult criminal court, that placement, in 2005AP1492-CR itself, should affect the juvenile's eligibility for sentence credit. not But the juvenile does not have a right to remain locked up in a county jail so that he can earn credit against an adult sentence. ¶79 On the other hand, when a juvenile is kept in a county jail in connection with the pending prosecution of an adult crime, he is entitled to credit against the sentence for that crime. This was foreshadowed in Beets and actually applied in Thompson.10 ¶80 Johnson argues that he was transferred to and placed in the Dane County Jail in connection with the June 2002 battery for a total of 32 days. The State concedes that the record is unclear why Johnson was held in the county jail rather than juvenile detention. If Johnson was held in the county jail because of the pending battery charge, he is entitled to credit for that time against the battery sentence, notwithstanding the fact that However, he if would Johnson have was been being in held custody in somewhere county jail else. for some reason unrelated to his battery charge such as his placement in county jail juveniles in was necessary juvenile to ensure detention then the safety Johnson of should other not be entitled to 32 days credit because custody in the county jail 10 In State v. Thompson, 225 Wis. 2d 578, 581, 593 N.W.2d 875 (Ct. App. 1999), the circuit court awarded Thompson sentence credit for time spent in custody at the Milwaukee County Jail between his arrest and his return to Ethan Allen. 36 No. 2005AP1492-CR would not have been in connection with his June 2002 battery charge.11 CONCLUSION ¶81 not We affirm the circuit court and hold that Johnson was entitled to sentence credit for time spent awaiting sentencing for his June 2002 battery. in custody First, he was not entitled to credit for the time in custody from his arrest to the May 6, 2003, extension hearing in juvenile court because during that period Johnson was serving a commitment based entirely on conduct preceding and unrelated to the June 2002 battery. Therefore, extension precluded adult battery. under any Beets, connection Johnson's to custody 2002 for juvenile the later Second, Johnson is not entitled to credit for the period from the May 6, 2003, extension hearing up to the time of sentencing because, even though the adult battery charge was a factor Johnson's in juvenile the juvenile supervision court's for decision another year, to the extend circuit court (Judge Flanagan) determined that the juvenile court (Judge Nicks) would have extended Johnson's supervision even if the June 2002 battery had supported by the record. not occurred. That determination is Therefore, applying the reasoning in Beets, Johnson's custody was not in connection with the June 2002 battery. We remand the case, however, for the circuit 11 At a status conference on January 8, 2004, Johnson's attorney intimated that "they put him in the jail because it's an adult case, but because he's a juvenile, they put him in seg." We remand, however, for the court to hold a proper evidentiary hearing on this matter. 37 No. 2005AP1492-CR court to hold an evidentiary hearing to determine whether the 32 days that Johnson spent in the Dane County Jail were in connection with his June 2002 battery charge. By the Court. The judgment and order of the circuit court are affirmed and the cause is remanded to the circuit court for further proceedings consistent with this opinion. 38 No. 1 2005AP1492-CR

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