COURT OF APPEALS
DATED AND FILED
December 8, 2010
A. John Voelker
Acting Clerk of Court of Appeals
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.
STATE OF WISCONSIN
IN COURT OF APPEALS
Sergio M. Pegues,
APPEAL from orders of the circuit court for
¶1 PER CURIAM. Sergio M. Pegues has appealed
from an order entered on July 23, 2009, in the circuit court for
¶2 The issues presented by each appeal are different but
related. In February 2006, Pegues
entered a guilty plea to one count of possession of marijuana as a repeat drug
¶3 On April 22, 2008, Pegues signed a Petition and Stipulation to Waive Appearance and Hearing, and Order Extending Probation. In this petition, Pegues stated that he had failed to fulfill the conditions of his probation by failing to pay “Court ordered financial obligations” in the amount of $371.15. He acknowledged that the Wisconsin Department of Corrections believed that he had not made a good faith effort to pay and was asking the trial court to extend his probation for one year. He acknowledged that he was aware of and understood that he had a right to a trial court hearing on whether the Department’s request should be granted. He acknowledged that at the hearing, the Department would have to show that he had the ability to pay and that an extension would further his rehabilitation as well as the interests of the community. He acknowledged that he had a right to appointed counsel, and that if he waived these rights, the trial court could enter an order extending his probation. Pegues stated that he wanted to waive his right to a hearing and asked the trial court to grant the Department’s request for an extension. He stated that by signing the document, he certified that his waiver was made freely and voluntarily, without promises or threats.
¶4 The trial court signed the order on April 30, 2008, stating that probation was extended from May 2, 2008, to May 2, 2009, or until all court obligations were completed, whichever came first. The order stated that the relief requested was in the best interests of the defendant and the community, and that it served the purpose for which probation was imposed.
¶5 Based on violations of the terms and conditions of Pegues’
probation, an apprehension request was issued for him by probation authorities
on April 27, 2008. According to the
¶6 Revocation proceedings were commenced against Pegues in
¶7 On August 14, 2008, Pegues also entered guilty pleas to the
obstruction and disorderly conduct charges in
¶8 Pegues’ first argument on appeal is that the trial court
lacked jurisdiction to extend his probation in
¶9 In support of his argument, Pegues cites State v. Fearing, 2000 WI App 229, ¶21, 239 Wis. 2d 105, 619 N.W.2d 115, for the proposition that conditions of probation, including the condition of jail confinement and the length of that confinement, are a component of the criminal penalty of probation. Based on Fearing, Pegues contends that when a trial court awards credit for pretrial detention to reduce jail time imposed as a condition of probation, its order also reduces the defendant’s overall term of probation.
¶10 Contrary to Pegues’ argument, nothing in Fearing or Wis. Stat. § 973.09(4)(a) provides any support for such a conclusion. Instead, as argued by the State, this issue is controlled by Wis. Stat. § 973.155(1)(a).
¶11 Pursuant to the express language of Wis. Stat. § 973.155(1)(a), a convicted defendant is entitled to 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. By its terms, § 973.155(1)(a) provides for credit toward the service of a sentence. Within the meaning of § 973.155(1)(a), a sentence to which credit can attach requires confinement or incarceration. Cf. State v. Martinez, 2007 WI App 225, ¶¶17-18, 305 Wis. 2d 753, 741 N.W.2d 280 (defendant was not entitled to have time spent serving a federal sentence credited against a Wisconsin sentence because he was on parole in the Wisconsin case when he was incarcerated on the federal sentence and the prospect of him serving any further Wisconsin sentence at the time he served the federal sentence was speculative); State v. Rohl, 160 Wis. 2d 325, 331-32, 466 N.W.2d 208 (Ct. App. 1991) (because the defendant was on parole in Wisconsin at the time he was confined on charges in California, the period of confinement in California could not be credited against his Wisconsin sentence). Pegues’ two-year term of probation was not a period of confinement. His pretrial detention and the credit awarded on his condition of probation jail time therefore did not reduce his term of probation.
¶12 In concluding that probation is not a sentence for purposes of
awarding credit under Wis. Stat. § 973.155(1)(a),
we also note that probation is generally considered to be an alternative to a
sentence, not a sentence. Fearing,
basis therefore exists to conclude that Pegues’ two-year term of probation was reduced by the thirty-five days he spent in pretrial detention.
¶13 Pegues’ second argument is that the trial court erroneously extended his probation for failure to make payments ordered as a condition of probation. This argument fails because, as discussed above, Pegues expressly waived his right to a hearing on extension and stipulated to entry of an order extending his probation.
¶14 A trial court may extend a defendant’s probation if, prior to
the expiration of the period of probation, the defendant stipulates to the
extension of supervision and the trial court finds that the extension would
serve the purposes for which probation was imposed. Wis.
¶15 Pegues’ third argument pertains to
¶16 Pegues’ final argument is that the prosecutor violated the plea
agreement at sentencing in
¶17 A defendant has a constitutional right to the enforcement of a
negotiated plea agreement. State
v. Williams, 2002 WI 1, ¶37, 249
¶18 When a prosecutor has agreed to make a certain sentence
recommendation, he or she may not render less than a neutral recitation of the
terms of the agreement and may not make an “end run” around the agreement. Williams, 249
¶19 After reviewing the sentencing transcript, including the
prosecutorial comments highlighted by Pegues in his brief on appeal, we
conclude that the prosecutor did not breach the agreement. She recommended that Pegues be sentenced to
two prison terms, each consisting of one year of initial confinement and one
year of extended supervision, consecutive to each other and consecutive to the
sentence imposed after revocation of probation in
¶20 Although the prosecutor discussed negative factors and made
uncomplimentary comments concerning Pegues, the negative information conveyed
by her in no way insinuated that she was distancing herself from the sentencing
recommendation. Instead, the
prosecutor’s comments supported the recommended sentence and were relevant to
the pertinent sentencing factors the sentencing court was required to
consider. The plea agreement was not
breached. See Naydihor, 270
By the Court.—Orders affirmed.
opinion will not be published. See Wis.
 These appeals have been consolidated by this court.
 All references to the Wisconsin Statutes are to the 2007-08 version.
 The trial court stayed the remainder of the jail time imposed as a condition of probation.
 As already noted, the trial court granted Pegues credit against the thirty-five days of jail confinement that was imposed as a condition of probation and not stayed. Although Pegues’ reply brief also discusses the law pertaining to sentence credit for time served as a condition of probation when a sentence is imposed after revocation of probation, these appeals present no issue dealing with credit against the thirty-month sentence imposed after revocation of probation on August 14, 2008. We therefore do not discuss that matter.
determining that a term of probation is not a sentence that may be reduced by
credit for a period of pretrial detention, we acknowledge case law holding that
the meaning of the term “sentence” depends upon the particular statute involved
and the setting to which the statute applies.
State v. Mentzel, 218
Each of these cases involved legal standards,
statutes, and issues which are not involved in this case. Moreover, while “sentence” is a term that may
be used in a more general sense to include probation, it is a legal term and is
given its legal meaning when used in a statute unless there is a strong
indication that the term was used in a general sense. State v. Fearing, 2000 WI App 229,
State v. Howard, 2001 WI App 137, ¶12, 246
In his postconviction motion, Pegues alleged that the
prosecutor breached the plea agreement, but he did not allege that his trial
counsel was ineffective for failing to object to the alleged breach. Pegues contends that the language and holding
set forth in Howard, 246