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COURT OF APPEALS DECISION DATED AND FILED June 10, 2008 David R. Schanker 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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Devaillous Roy Hankins, Defendant-Appellant. |
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APPEAL
from a judgment and orders of the circuit court for
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 WEDEMEYER, J. Devaillous R. Hankins appeals from a judgment and orders following his guilty plea to one count of possession with intent to deliver cocaine. Hankins’ complaint is that the trial court erred when it denied him 139 days of sentence credit that he believes he should receive. Because the trial court did not err in denying Hankins credit for the 139 days during which he was serving a sentence on a fleeing conviction until the time he was sentenced for possession, we affirm.
BACKGROUND
¶2 On March 9, 2006, the police attempted to stop a van being driven by Hankins. The police had received a tip that the van was being used for dealing drugs. Hankins initially stopped the van, but as the police officers were approaching, he accelerated again and fled the scene. The police returned to their vehicles and a chase ensued. During the chase, the police officers observed Hankins hold a plastic bag with a white powdery substance out the window until the contents of the bag had spilled out. Hankins then dropped the bag out the window. The chase lasted approximately twenty minutes before Hankins was eventually stopped and arrested.
¶3 The police officers recovered the bag dropped, which had not been completely emptied and determined that the substance remaining in the bag was cocaine. The police also discovered cocaine on the seats and floor of the vehicle as well as in the center console. The amount of cocaine recovered was in excess of twenty-five grams, an amount indicating the cocaine was going to be sold rather than used for personal use.
¶4 Hankins was arrested and charged with four counts: two counts of second-degree recklessly endangering safety, one count of possession of cocaine with intent to deliver, and one count of fleeing an officer. The case was tried to a jury in June 2006. On June 22, 2006, the jury found Hankins guilty on the fleeing charge, but was unable to reach a verdict on the other three counts.
¶5 On June 27, 2006, Hankins was sentenced on the fleeing conviction to three and a half years, granting him sentence credit of 110 days for the time he spent in custody between his March 9th arrest and the June 27th sentencing. The court also re-set the remaining three counts for another trial to be held October 2, 2006. Instead of going to trial on that date, the State and Hankins advised the court that a plea agreement had been reached. Hankins agreed to plead guilty to the possession charge and the State agreed to dismiss the reckless endangerment charges. The trial court accepted the plea, and on November 13, 2006, Hankins was sentenced on the possession charge to ten years, consisting of five years initial confinement, followed by five years of extended supervision, to run concurrent to the previously imposed sentence on fleeing, which Hankins was currently serving.
¶6 On December 8, 2006, Hankins filed a motion pursuant to Wis. Stat. § 973.155 (2005-06),[1]
requesting sentence credit on the possession count for the entire time period
from his March 9th arrest through the November 13th sentencing on the
possession count. The trial court
granted the request in part, allowing the sentence credit for the 110 days from
the March 9th arrest through June 27th, the date Hankins was sentenced on the
fleeing conviction. The trial court
denied sentence credit for the time following the June 27th sentencing,
reasoning that based on State v. Tuescher, 226 Wis. 2d 465, 595
N.W.2d 443 (Ct. App. 1999), once Hankins was sentenced on the fleeing
conviction, he was serving the fleeing sentence, and because possession is not
the “same course of conduct” as fleeing, he is not entitled to credit on the
possession conviction for the time he was serving the fleeing sentence.
¶7 Hankins
filed a postconviction motion challenging the court’s ruling, which was
denied. He now appeals from the order
denying his postconviction motion.
DISCUSSION
¶8 The
issue in this case is whether, under the facts and circumstances presented
here, Hankins is entitled to 139 days sentencing credit for the possession
conviction. He asserts that because the
possession charge and the fleeing charge arose from the same criminal episode
that we should interpret the convictions to be the same course of conduct. He points out that the State charged these
crimes together, that they occurred at about the same point in time—Hankins was
attempting to dispose of the cocaine at the same time he was fleeing the
police, and that if the jury had convicted him of possession during the first
trial, he would have been sentenced on both fleeing and possession at the same
time. If that had occurred, he would
have received sentence credit on the possession conviction. He asserts that it is unfair to not receive
the sentence credit in these circumstances and that he should not have to serve
an additional 139 days simply because the jury deadlocked on the possession
charge during his trial. He argues that
not allowing sentence credit in these circumstances violates constitutional
protections of due process and equal protection. Although this court acknowledges that the
fortuitous events of this case resulted in a sentence credit outcome that on
some level does appear to be unfair, we are bound by the case law set forth in Tuescher,
and therefore must affirm.
¶9 The
issue in this case involves the interpretation of the sentence credit statute
as applied to undisputed facts.
Accordingly, the issue presents a question of law, which this court
reviews independently. State v.
Abbott, 207
¶10 Hankins
makes a compelling argument. He was
convicted of two crimes, both of which occurred during the same general
criminal episode on March 9th. However,
he was sentenced at separate times for each crime. The first sentence was for the fleeing charge
on June 27th, following a jury trial at which he was found guilty for
fleeing. The jury deadlocked on the
other charges. He then entered into a
plea agreement with the State, wherein he pled guilty to the possession charge
in exchange for dismissal of the reckless endangerment charges. Thus, he was sentenced on the possession
charge 139 days after his sentencing on the fleeing charge. On a common sense level, because the
sentences were imposed concurrently, it appears that he should be granted
sentence credit for those 139 days.
After all, if the jury had convicted on the possession at the same time
as the fleeing, Hankins would have received the same sentence credit for both
crimes. Likewise, if the fleeing
sentencing had been postponed until the possession charge was resolved, and
Hankins was sentenced on both cases, he would have received sentence credit on
both the fleeing and possession convictions.
¶11 However,
the law is not about what ifs and would haves.
It is based on interpretation of statutory language and case law. Here, the sentence credit statute, Wis. Stat. § 973.155(1)(a),[2] provides
that credit is granted toward a defendant’s sentence for all days spent in
pre-sentence custody, so long as the custody is connected to the course of
conduct for which the sentence is imposed.
Thus, our analysis focuses on whether the fleeing conviction “is
connected to the course of conduct” for the possession conviction. Guiding us in that determination is the Tuescher
case, which despite Hankins’ attempt to factually distinguish it from his case,
is as factually similar to the instant case as two different cases can get.
¶12 In
Tuescher, a jury convicted Tuescher of attempted second-degree
intentional homicide, attempted burglary while armed and possession of a
firearm by a felon.
¶13 Tuescher
asserted in his appeal that he should be granted additional sentence credit as
all three of his crimes arose from the same course of conduct and because all
three sentences were imposed concurrently.
For the foregoing reasons, we conclude that a defendant earns credit toward a future sentence while serving another sentence only when both sentences are imposed for the same specific acts. Accordingly, Tuescher is not entitled to credit toward his reckless injury sentence for time he spent serving his sentences for burglary and possession of a firearm after his attempted homicide conviction was vacated, because those sentences did not arise out of the same “course of conduct” as that phrase is used in § 973.155.
Tuescher, 226
¶14 We are also not convinced by Hankins’ argument that State
v. Yanick, 2007 WI App
30, 299 Wis. 2d 456, 728 N.W.2d 365, requires the granting of sentence credit
for the 139 days at issue in this case. Yanick
involves the revocation of probation and addressed the issue of sentence credit
for conditional jail time overlapping with time Yanick spent serving an
unrelated prison sentence.
¶15 Hankins also directed this court’s attention to the recently
released case of State v. Johnson, 2008 WI App 34, ___Wis. 2d ___, 746 N.W.2d 581. Johnson, however, addresses a different issue than what we are
presented with in the instant case. It
discusses “whether the ‘in connection with the course of conduct’ requirement
applies individually to each concurrent sentence imposed at the same time.”
¶16 Based on the foregoing analysis, we conclude that this case is controlled by the holding in Tuescher, and although it may appear on the surface to be unfair not to grant Hankins 139 days of sentence credit, we are bound by the statutory law and the cases interpreting it. Our opinions cannot be based on the appearance of unfairness, but must be grounded in the laws of this State. Accordingly, we affirm the judgment and orders of the trial court.[3]
By the Court.—Judgment and orders affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Wisconsin Stat. § 973.155(1)(a) states:
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, 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.
[3] Hankins
also claims that this result violates his constitutional rights. This claim, however, was not fully developed,
and therefore will not be considered by this court.