COURT OF APPEALS DECISION DATED AND FILED October 15, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
Cir. Ct. No. 2011CF6171 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Arenzo Alexander Ware, Defendant-Appellant. |
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APPEAL from an order of the circuit court for Milwaukee County: DENNIS P. MORONEY, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Arenzo Alexander Ware appeals an order that denied him credit for 310
days that he spent in custody before sentencing in this case. Because Ware received credit for the 310 days
in custody towards his service of a reconfinement term imposed in another case,
and because he is not entitled to duplicative credit against his consecutive sentence
in this case, we affirm.
¶2 The
relevant facts are undisputed. Ware was
serving a term of extended supervision imposed in Milwaukee County case No.
2009CF3710 when police arrested him on December 28, 2011. Department of Corrections personnel placed
Ware on an extended supervision hold. On
June 27, 2012, the Department of Administration, Division of Hearings and
Appeals, revoked Ware’s extended supervision in case No. 2009CF3710, and
ordered him to return to prison to serve twenty months and three days of
reconfinement. The Division also granted
him credit against his reconfinement term for his time in custody from December
29, 2011, until the prison received him and he began serving his reconfinement
term there.
¶3 Meanwhile,
the State charged Ware in Milwaukee County case No. 2011CF6171, with crimes
allegedly committed on December 28, 2011.
Ware subsequently resolved the case with a guilty plea to a single
charge. On November 2, 2012, the matter
proceeded to sentencing, and the circuit court imposed a thirty-month term of
imprisonment. The circuit court ordered
Ware to serve his sentence in case No. 2011CF6171 consecutively to the reconfinement
term he was already serving in Milwaukee County case No. 2009CF3710.
¶4 Ware
sought credit against his sentence in Milwaukee County case No. 2011CF6171 for
the 311-day period from December 28, 2011, through November 2, 2012. The circuit court granted him credit for the
day he spent in custody on December 28, 2011, and otherwise denied the motion
on the ground that Ware had already received credit for the remainder of the
time against his reconfinement term in case Milwaukee County case No.
2009CF3710. Ware appeals.
¶5 “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.” Wisconsin Stat. § 973.155(1)(a) (2011-12).[1] Wisconsin courts have developed a body of case
law applying the statute in various circumstances. See State v. Tuescher, 226 Wis. 2d
465, 471-72, 595 N.W.2d 443 (Ct. App. 1999). Whether a defendant is entitled to
sentence credit under § 973.155 is a question of law that we review
independently of the circuit court. State
v. Lange, 2003 WI App 2, ¶41, 259 Wis. 2d 774, 656 N.W.2d 480.
¶6 Ware
does not dispute that he received credit towards the service of his reconfinement
term in Milwaukee County case No. 2009CF3710 for all of the days he spent in
custody from December 29, 2011, through the date he was sentenced in Milwaukee
County case No. 2011CF6171. Ware claims,
however, that he is also entitled to receive credit for those days in custody
towards the service of his consecutive sentence in the latter case. He is wrong.
¶7 Our
supreme court long ago endorsed the proposition that “‘[t]he objective with
consecutive sentences is to assure that credit is awarded against one, but only
one, of the consecutive sentences.’” See State
v. Boettcher, 144 Wis. 2d 86, 101, 423 N.W.2d 533 (1988) (citation
omitted). The Boettcher court
explained:
[w]e are satisfied, from the purpose of the statute and particularly the absence of any language even suggesting the possibility of dual credits where consecutive sentences are imposed, that the public policy behind the statute impels the conclusion we reach here: That custody credits should be applied in a mathematically linear fashion. The total time in custody should be credited on a day-for-day basis against the total days imposed in the consecutive sentences.
Id. at 100. Because Ware is serving consecutive sentences,
Boettcher
dictates that he may not receive the dual credit he requests.[2]
¶8 Ware
is not assisted in his claim for sentence credit by his citations to State
v. Hintz, 2007 WI App 113, 300 Wis. 2d 583, 731 N.W.2d 646, and State
v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713. Neither Hintz nor Presley has any
application here; both cases involve the calculation of sentence credit where
the circuit court imposed concurrent rather than consecutive terms. See
Hintz,
300 Wis. 2d 583, ¶4; Presley, 292 Wis. 2d 734,
¶15. Similarly inapt is Ware’s citation
to State
v. Gilbert, 115 Wis. 2d 371, 340 N.W.2d 511 (1983). “The only issue the Gilbert court addressed
was ‘whether confinement in the county jail as a condition of probation, with
or without work release privileges, is being in “custody” within the meaning of
the sentence credit statute.’” State
v. Johnson, 2008 WI App 34, ¶17, 307 Wis. 2d 735, 746 N.W.2d 581, aff’d, 2009 WI 57, 318 Wis. 2d 21, 767
N.W.2d 207 (citation and one set of brackets omitted). Finally, Ware’s citations to cases decided by
courts of foreign jurisdictions are unavailing.
His request for sentence credit is governed by well-settled Wisconsin
law that we are not free to disregard. See Cook v. Cook, 208 Wis. 2d 166,
189-90, 560 N.W.2d 246 (1997).
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] Ware does not suggest that his reconfinement term is not a sentence, and any such contention would be meritless. See Wis. Stat. § 304.072(4) (stating that “[t]he sentence of a revoked parolee or person on extended supervision resumes running on the day he or she is received at a correctional institution subject to sentence credit for the period of custody in a ... detention facility pending revocation according to the terms of [Wis. Stat. §] 973.155”).