2010 WI 77
Supreme Court of
Patrick C. Carter,
REVIEW OF A DECISION OF THE COURT OF APPEALS
2007 WI App 255
Reported at: 306
July 14, 2010
Submitted on Briefs:
September 12, 2008 & October 21, 2009
Source of Appeal:
GABLEMAN, J., concurs (opinion filed).
Concur & Dissent:
ROGGENSACK, J., concurs in part/dissents in part (opinion filed).
PROSSER, J., dissents (opinion filed).
ZIEGLER, J., dissents (opinion filed).
For the plaintiff-respondent-petitioner the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant there was a brief and oral argument by Ellen Henak, assistant state public defender.
2010 WI 77
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
Patrick C. Carter,
JUL 14, 2010
A. John Voelker
Acting Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Modified and as modified affirmed.
¶1 SHIRLEY S. ABRAHAMSON, C.J. This case addresses
the award of sentence credit for the time a criminal defendant spends in jail
while awaiting trial and sentencing. The
statutory provision at issue here is mandatory and the language at issue in
this case amounts to one simple sentence:
"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."
¶2 When adopted, this provision was meant to provide "a simpler, more equitable system . . . ." Today's decision brings to a close the tortured saga of this case. Perhaps it will enable circuit courts to calculate and award sentence credit in a simpler and more equitable manner. We first heard oral argument in this case on September 12, 2008, in tandem with State v. Johnson (Elandis Johnson), 2009 WI 57, 318 Wis. 2d 21, 767 N.W.2d 207. In that case, we reached a unanimous result, holding that the defendant in that case was not entitled to the sentence credit he sought. It appeared that the goal of simplicity might be served.
¶3 Today, we take another step forward to help clarify sentence credit in a case involving concurrent sentences.
¶4 This case, in which the bottom line is whether or not a criminal defendant should be awarded 302 or 305 days of sentence credit, has now been before this court in some form for over 800 days. In the lifespan of this appeal, the State has three times abandoned and reformulated its legal position. The defendant has offered more than one proposal for sentence credit.
¶5 In the most recent foray in this court, the parties filed a joint brief, in which the State joined the defendant, agreeing that he was entitled to 305 days of sentence credit. Neither party requested a second oral argument, and apparently neither desired it. This court nevertheless compelled the lawyers to appear, which they did. That was on September 22, 2009. Another eight months have passed. The court now issues a decision in which five opinions (totaling more than 100 typed pages) are offered with four justices joining this opinion (Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, Justice N. Patrick Crooks, and Justice Michael J. Gableman) agreeing on the interpretation of the statutes and case law and the bottom line, that is, just how many days of sentence credit should be awarded to the defendant in this case.
¶6 Circuit courts deal with sentence credit every day. The statute proposes a simple test. The four justices who join this opinion hope we have provided greater clarity in awarding sentence credit in a case involving concurrent sentences.
¶7 This is a review of a published decision of the court of appeals
reversing the order of the Circuit Court for
¶8 The court of appeals disagreed with the circuit court and gave the
defendant credit on his Wisconsin sentence for time spent in
¶9 On review, we modify the decision of the court of appeals and grant the defendant a total of 305 days of credit, and as modified, affirm the decision of the court of appeals.
¶10 The instant case presents a question of interpreting and applying
the sentence credit statute, Wis. Stat. § 973.155(1)
to a particular factual circumstance.
The defendant entered a plea of guilty to a felony in
¶11 The defendant seeks credit for this presentence time, claiming this
custody was in connection with the course of conduct for which sentence was
¶12 Interpretation of a statute and application of a statute, here Wis. Stat. § 973.155(1), to undisputed facts present questions of law which this court determines independently of the circuit court and court of appeals but benefiting from the analyses of both courts.
¶13 Because the defendant had not been surrendered to Wisconsin during
the presentence custody in Illinois, the circuit court denied the defendant's
motion requesting 324 days of sentence credit for his presentence custody. The circuit court awarded the defendant
credit for 97 days, calculated from May 26, 2005, when he was arrested for
¶14 In contrast, the court of appeals held that the defendant was entitled to 324 days of sentence credit for his presentence confinement in Illinois from the date he was arrested in Illinois until the date he was sentenced on the Illinois charge; this time spent in Illinois custody was in connection with the course of conduct for which sentence was imposed in Wisconsin.
court granted the State's petition for review. After hearing oral argument on
September 12, 2008, we determined that the record in this case was
"insufficiently developed to demonstrate whether all or some of the
defendant's jail time in
¶16 The circuit court for Milwaukee County, Patricia D. McMahon, Judge, received 15 exhibits into the record, an affidavit of an Investigator with the Office of the Public Defender, and the parties' proposed findings of fact. The circuit court issued findings of fact on June 17, 2009. We heard oral argument for a second time on October 21, 2009.
¶17 For the reasons set forth, we grant the defendant 305 days of
sentence credit on the
¶18 The decision of the court of appeals is therefore modified and as modified affirmed. The cause is remanded to the circuit court for entry of judgment consistent with this opinion.
¶19 The facts are not disputed by the parties, although the facts on which we now decide this case differ somewhat from the facts that were presented prior to our remand of the case to the circuit court.
¶20 We adopt the findings of fact made by the Circuit Court for
¶21 The circuit court's final finding of fact states as follows: "From December 13, 2003, until November
2, 2004, defendant was in custody in
¶22 Following the Circuit Court's proceedings on remand, the State and
the defendant filed a joint response in lieu of submitting letter briefs to
this court. They stated that they have
no objections to the
¶23 We shall further discuss the circuit court's findings of fact below when we apply Wis. Stat. § 973.155 to the relevant facts.
¶24 The facts of the case and the calculation of 305 days of sentence
¶25 The 305-day sentence credit on the
Dec. 13-15, 2003: 3 days in
Dec. 22-31, 2003: 10 days in
Jan. 1-31, 2004: 31 days in
Feb. 1-29, 2004: 29 days in
March 1-31, 2004: 31 days in
April 1-30, 2004: 30 days in
May 1-31, 2004: 31 days in
June 1-30, 2004: 30 days in
July 1-31, 2004: 31 days in
Aug. 1-31, 2004: 31 days in
Sept. 1-30, 2004: 30 days in
Oct. 1-18, 2004: 18 days in
TOTAL: 305 days in
¶26 We turn now to describe the several judicial proceedings in the present case, culminating in a second oral argument before this court and the present decision.
¶27 The sentence credit statute at issue here, Wis. Stat. § 973.155(1)(a), provides for sentence credit for "all days spent in custody in connection with the course of conduct for which sentence was imposed." Days spent in custody include those days spent in custody while the offender is awaiting trial, is being tried, and is awaiting imposition of sentence. The statute provides:
(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, 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.
¶28 The defendant's Wisconsin postconviction motion originally sought
324 days of sentence credit against the Wisconsin charge for the days he spent
in custody in
¶29 The circuit court denied the defendant's postconviction motion, erroneously concluding that "[a] defendant is not in custody in connection with the course of conduct for which the sentence is imposed until his custody is surrendered to that jurisdiction."
defendant appealed to the court of appeals.
On appeal, the State did not dispute that the defendant was in custody
¶31 The State argued at the court of appeals that a defendant should
not be entitled to sentence credit unless the presentence custody in
¶32 The court of appeals explicitly rejected this argument, concluding that no case law supported an "exclusivity" requirement and that the case law was "inconsistent with" the Special Materials.
¶33 The court of appeals carefully analyzed State v. Demars, 119
¶34 The court of appeals correctly concluded that none of these three cases supports the proposition that a person detained in jail in another state is not "in custody in connection with" a Wisconsin charge under Wis. Stat. § 973.155 unless the person is in custody exclusively pursuant to a Wisconsin warrant. The court of appeals declined the State's suggestion to adopt an exclusivity requirement on the "persuasive authority" of the Special Materials. We agree with the court of appeals' analysis of these cases.
¶35 The court of appeals also addressed State v. Ward, 153
¶36 In Ward, 153 Wis. 2d at 746, the court of appeals concluded, consistent with the conclusion of the Wisconsin Civil Jury Instruction Committee, that "[w]hen concurrent sentences are imposed at the same time or for offenses arising from the same course of conduct, sentence credit is to be determined as a total number of days and is to be credited against each sentence imposed."
¶37 In its decision in the present case, the court of appeals concluded
that "the [Marcus] Johnson court did not intend to overrule Ward"
and that "the principle applied in Ward . . . applies in this casethat when a defendant is in
custody, presentence, on two separate charges and the sentences are concurrent,
the defendant is entitled to sentence credit against each sentence." Furthermore, the Marcus Johnson case
reinforced the State v. Beets decision, 124
¶38 The court of appeals also concluded in the present case that there
was no reason supporting the State's argument that sentence credit is not
awarded when concurrent sentences are not imposed at the same time. Finally, the court of appeals concluded that
the same rules for sentence credit applied whether the presentence custody was
¶39 The court of appeals therefore awarded the 324 days of sentence credit that the defendant sought on the basis of the factual record presented at that time.
¶40 On review in this court, the State abandoned its reliance on the Special Materials and took the position that "the Court of Appeals correctly rejected Wis. JICriminal SM-34A" because the court of appeals had "correctly analyzed the case law" cited in SM-34A. We agree with the State's decision to abandon its exclusivity argument for the persuasive reasons set forth by the court of appeals.
¶41 Moving away from the exclusivity argument in this court, the State's initial brief asserted that the court of appeals had erred in its application of State v. Ward and that sentence credit should not be granted on concurrent sentences when those concurrent sentences were imposed at different times, as happened in the instant case.
¶42 The State took the position in its initial brief that although the
Wisconsin sentence runs concurrent with the
¶43 The defendant argued in this court that the State had waived this argument about the timing of the imposition of the sentences by not raising it at the circuit court or the court of appeals. He further argued that the logic behind the State's new position was flawed and that when a defendant is in custody in connection with the course of conduct underlying two or more cases, and sentences for those cases are imposed concurrently, the sentence credit should be applied to both sentences.
¶44 At our first oral argument it became clear that because sentence
credit turned on whether the defendant was in custody in
¶45 On remand, defense counsel procured several additional documents. The parties agreed to the submission of fifteen documents as exhibits at the circuit court, which made its findings of fact on the basis of those exhibits.
¶46 In the parties' joint response to this court after the remand, the
parties agreed that our decision in State v. Johnson (Elandis Johnson),
2009 WI 57, 318
¶47 Neither party requested additional oral argument. Nevertheless, we heard extended oral argument for a second time on October 21, 2009.
¶48 At oral argument, the State emphasized that its prior argument about the need for simultaneous imposition of concurrent sentences "has been removed, or undercut, or completely done away with . . . by Elandis Johnson. Because in my view the teaching of that case is that we do not look at the timing of the imposition of the sentence, with the one exception of consecutive sentences. . . . [W]e look at whether the sentence for which credit is claimed is factually connected with the conduct."
¶49 We agree with the State's and defendant's interpretation of the Elandis Johnson case and its application to the present case.
¶50 Although the parties agree about how Wis. Stat. § 973.155(1)(a) and the existing case law apply to the undisputed facts in the present case, we are not bound by the parties' interpretation of the law or obligated to accept a party's concession of law. This court, not the parties, decides questions of law.
¶51 The provisions of the sentence credit law, Wis. Stat. § 973.155(1), are mandatory. A sentencing court must give credit accorded by statute because "a person [may] not serve more time than that for which he is sentenced."
¶52 Admittedly, the circuit court's findings of fact and the record now before us lack some particulars. Still, any relevant weaknesses are either bridged by reasonable inference from the undisputed facts or are not material. The facts as established by the circuit court and the record are sufficient to apply the established principle of law.
¶53 The established principle of law is that a convicted person is entitled to credit, pursuant to Wis. Stat. § 973.155(1), toward his Wisconsin sentence for all days spent in custody outside the state if the custody was in whole or in part "in connection with the course of conduct for which sentence [in Wisconsin] was imposed."
¶54 Our unanimous synthesis of the case law in the Elandis Johnson decision, 2009 WI 57, 318 Wis. 2d 21, 767 N.W.2d 207, authored by Justice Prosser, controls the present case. In that case the question was whether the statute "requires a court to apply the same sentence credit to each concurrent sentence given to an offender at the same sentencing hearing, regardless of whether the offender's days spent in presentence custody were 'in connection with the course of conduct for which [each] sentence was imposed.'" We answered that question in the negative. There, Elandis Johnson received his three concurrent sentences at the same hearing, but they arose from separate cases. The cases arose from separate courses of conduct, and each period of custody for which the defendant sought sentence credit was "tied directly to only one case."
defendant in Elandis Johnson argued that Ward, 153
analyzed Ward in Elandis Johnson, 318
Ward demonstrates that when a defendant spends time in presentence custody and the reason for that presentence custody is "in connection with the course of conduct for which sentence was imposed," then the time spent in presentence custody must be credited against the ultimate sentence imposed.
. . . .
[I]n order for time in presentence custody to be credited to the sentence imposed, there must be a factual connection between the presentence custody and the sentence.
In other words, in Elandis Johnson we rejected the defendant's reliance on a procedural connection between multiple concurrent sentences by emphasizing that it is the factual connection between custody and the conduct for which sentence is imposed that is controlling.
¶57 Thus we must determine in the instant case whether a "factual connection" exists between the defendant's presentence Illinois custody (from December 13, 2003, to October 19, 2004) and the Wisconsin sentence imposed. We now examine the facts in greater detail.
¶58 On July 23, 2003, a criminal complaint was filed against the
defendant Patrick Carter in Milwaukee County Circuit Court. The defendant, a resident of
¶59 On the same date and together with the complaint, the court issued a "Felony Warrant (and Authorization for Extradition)" authorizing the defendant's arrest.
¶60 The felony warrant follows the prescribed form and requirements of
a warrant authorized by Wis. Stat. § 968.04. The Wisconsin felony warrant was addressed
"to any law enforcement officer" and authorized extradition from any
location in the
¶61 The Wisconsin warrant does have a legal effect outside the state of
¶62 According to the circuit court's findings of fact, "On
December 13, 2003, defendant was arrested in
¶63 Thus on the face of the Illinois arrest report a factual connection
exists between the defendant's arrest and resulting presentence custody in
Illinois and the Wisconsin conduct for which the
¶64 On December 15, 2003, while still in
¶65 Under the Uniform Act, when the accused is arrested as a result of
an out-of-state warrant, "the accused must be taken before a judge with
all practicable speed," at which point a complaint is entered on the basis
of the criminal charge from the foreign state and "thereafter his answer
shall be heard as if he had been arrested on a warrant."
¶66 At this court appearance, the Uniform Act requires the judge in the
asylum state (here Illinois) to commit the accused fugitive to jail "by a
warrant reciting the accusation" if "it appears that the person held
is the person charged with having committed the crime alleged and . . . that he has fled from
¶67 At the December 15, 2003 hearing, the defendant refused to waive
formal extradition. Under
¶68 On the same date, December 15, 2003, the Chicago Police Department
Extradition Unit sent a teletype message to the Milwaukee Police Department,
giving notice that the defendant was in custody in
¶69 Also on December 15, 2003, the defendant's supervision on the prior
¶70 On December 19, 2003, while serving his Illinois OWI charge, the
defendant was arrested on two
¶71 A Wisconsin governor's warrant for Extradition was signed on
February 6, 2004,
but on March 5, 2004, the Chicago Police Department sent another teletype to
the Milwaukee Police Department advising that the governor's warrant had not
been received. This teletype notified
¶72 On October 19, 2004, the defendant was sentenced to two concurrent
sentences of 14 years on two counts of armed robbery in
¶73 As noted, the hold on the defendant based on the
¶74 On June 6, 2005, while still serving the
¶75 On August 30, 2005, the defendant entered a plea of guilty to the
Wisconsin charge of first degree reckless endangering safety and was sentenced
to seven years and six months of initial confinement and five years extended
supervision. The Wisconsin sentence was
imposed to run concurrently with any other sentence and the sentencing court
stated that the Wisconsin sentence could be served either in
¶76 From the records available, the procedures set forth in the Uniform Act appear to have been followed. The defendant was arrested by Chicago Police officers on December 13, 2003, on the basis of the outstanding Wisconsin felony warrant, which provided the arresting officers with "reasonable information" that the defendant was charged with a felony in Wisconsin.
¶77 The defendant appeared in court in Illinois on December 15, 2003,
and at that time the Chicago Police Department notified the Milwaukee Police
Department that the defendant was in custody and requested that the formal
request of a "governor's warrant" be initiated. The defendant was thereafter in
¶78 Thus, on the face of the
¶79 The circuit
court's finding No. 14 is that the defendant's presentence custody in
¶80 At the second oral argument, counsel for both the State and the defendant stated that they have independently reviewed the circuit court's findings of fact and each came to the conclusion that the defendant was entitled to 305 days of sentence credit. Having thoroughly examined the record and applied our law interpreting § 973.155(1)(a), we have reached the same conclusion.
¶81 For the reasons set forth, we modify the decision of the court of
appeals and grant the defendant 305 days of sentence credit on the
¶82 We conclude, as do the parties, that under Wis. Stat. § 973.155(1) the
defendant's custody in Illinois for 305 days was in connection with the course
of conduct for which he was sentenced in Wisconsin. He was in custody in connection with the
Wisconsin charge for which he was sentenced from the date of his arrest on
December 13, 2003, until he was sentenced on an
¶83 The decision of the court of appeals is modified and as modified affirmed. The cause is remanded to the circuit court for entry of judgment consistent with this opinion.
By the Court.The decision of the court of appeals is modified and as modified affirmed.
¶84 MICHAEL J. GABLEMAN, J. (concurring). I join the majority opinion.
I write separately to emphasize the narrow and limited extent of
our review in this case. Under
¶85 The circuit court
found (and the parties agree) that Carter's arrest and confinement in
¶86 The circuit court conducted a thorough and diligent review of the evidence and reached a reasonable conclusion for which support exists within the record. It reached its conclusions in part based on inferences, as is proper and as was necessary under the circumstances. Reasonable minds may differ as to the appropriate conclusions to be drawn from such inferences; however, the existence of other reasonable interpretations does not make the findings of the circuit court clearly erroneous.
¶87 Because of our obligation to defer to the circuit court's findings of fact, I agree with the majority and the parties that Carter is entitled to 305 days of sentencing credit. See majority op., ¶¶76-82.
¶88 PATIENCE DRAKE ROGGENSACK, J. (concurring/dissenting). I concur in that part of the majority opinion that concludes that Patrick Carter is due 302 days of sentence credit for the period between the date on which he finished his Illinois Driving Under the Influence (DUI) sentence, December 21, 2003, and the commencement of his Illinois armed robbery sentence, October 19, 2004. However, because no legal process caused Carter's custody in Illinois to be "in connection with" the Wisconsin crime until: (1) Illinois issued a fugitive warrant for Carter's arrest, based on the Illinois fugitive complaint, and (2) Carter had completed his Illinois DUI sentence, I dissent from the majority opinion's grant of sentence credit prior to December 21, 2003.
¶89 On August 30, 2005, Carter was convicted of recklessly
endangering safety, contrary to Wis. Stat. § 941.30(1).
He seeks a redetermination of the sentence credit he is due in
connection with that conviction based on time he alleges to have been in
¶90 Carter was arrested in
¶91 On December 16, 2003, pursuant to
A. Standard of Review
¶92 In order to determine the appropriate amount of sentence credit to
which Carter is entitled, I interpret and apply Wis. Stat. § 973.155(1)(a) and
portions of Wis. Stat. § 976.03,
the Uniform Criminal Extradition Act. Statutory interpretation and application
present questions of law. State v.
Johnson, 2007 WI 107, ¶27,
B. Necessary Legal Process
¶94 The application of Wis. Stat. § 973.155(1)(a) requires that I determine whether
Carter was "in custody" and also whether all the days of custody were
"in connection with the course of conduct for which sentence was
imposed." See Johnson,
¶95 Carter was arrested and taken "in custody" in
¶96 Our next task is to determine whether all the days Carter spent in
custody were "in connection with" the subsequent Wisconsin conviction
for reckless endangering, contrary to Wis. Stat. § 941.30(1).
We must make this decision based on Carter's proof of legal process that
held him in
¶97 Carter's December 13, 2003 arrest was based on an
¶98 On December 15, 2003, Carter also was committed to the Cook
County Department of Corrections to begin his sentence on the Illinois DUI
conviction. Carter's service of his DUI sentence
precluded sentence credit from December 15, 2003 through December 21,
2003, when that sentence concluded.
¶99 On December 16, 2003, in preparation for formal extradition to
¶100 In State v. Hughes, 68
¶101 In Hughes, the Beloit Police Department received a teletype
¶102 The Mississippi warrants and affidavits in support of those warrants
¶103 It is only after the fugitive complaint and the prerequisition or
fugitive warrant have been issued and served upon the defendant that the
defendant is held in custody by the asylum state for the charges pending in the
demanding state. Hughes, 68
¶104 The issuance of the fugitive complaint and fugitive warrant by
¶105 Governor Doyle signed the extradition warrant on February 6, 2004, and it was served on Carter on March 11, 2004.
¶106 Carter was convicted of the
¶107 I concur in that part of the majority opinion that concludes that Carter is due 302 days of sentence credit for the period between the date on which he finished his Illinois DUI sentence, December 21, 2003, and the commencement of his Illinois armed robbery sentence, October 19, 2004. However, because no legal process caused Carter's custody in Illinois to be "in connection with" the Wisconsin crime until: (1) Illinois issued a fugitive warrant for Carter's arrest, based on the Illinois fugitive complaint, and (2) Carter had completed his Illinois DUI sentence, I dissent from the majority opinion's grant of sentence credit prior to December 21, 2003.
¶108 DAVID T. PROSSER, J. (dissenting). The facts often determine the law. My first purpose in this dissent is to set out the facts as clearly and completely as an inadequate record permits. My second purpose is to apply the law to these facts.
¶109 On December 13, 2003, the defendant, Patrick C. Carter, was arrested
¶110 These grounds for arrest will be discussed in turn.
¶111 Patrick Carter was convicted of driving under the influence (DUI) in
¶112 On September 3, 2002, a
¶113 The day before Carter's DUI conviction in 2002, he participated in
the armed robbery of a liquor store on
¶114 A Chicago police report of the incident indicated that the male victim had seen the two perpetrators in the store before. A later police report indicated that Carter and Eric T. Minor were identified in a photo lineup on June 16, 2002. Minor was the subject of Chicago Police Department Investigative Alert #299908348 concerning the liquor store robbery. The record does not show whether Carter was the subject of a similar Investigative Alert, but that is likely because Carter was a convicted felon who had been identified by two witnesses as the other man who robbed the store.
¶115 An Investigative Alert is not an arrest warrant, but its issuance
means that police have reasonable grounds to stop a suspect and detain him for
a reasonable time to question him about a crime.
¶116 On June 19, 2003, Patrick Carter was living in
¶117 After the shooting, Carter returned to
¶118 The day after he was arrested in Chicago, Carter was transferred to
the Cook County Jail. He appeared in
court on the
¶119 In another court on December 15, Carter's supervision on the DUI was revoked and he was sentenced to 30 days in the Cook County Department of Corrections, with sentence credit of three days. His sentence on the DUI was completed on December 21much less than 30 days. Consequently, Carter was in custody on the DUI from December 13 to December 21, 2003, a total of nine days.
¶120 In response to this court's order last term requesting additional facts, Milwaukee County Circuit Judge Patricia D. McMahon made several findings based on documents provided to her. These findings included the following:
6. On December 15, 2003, defendant appeared in
Cook County Court and refused to waive extradition. Defendant could not agree to extradition
because he had a pending local charge and that local charge had to be resolved
before he could be sent back to
7. On December 19, 2003, defendant was arrested on a charge of armed robbery, based on an incident which had occurred on June 9, 2002.
¶121 Some of these findings require comment. Judge McMahon's finding that Carter "refused to waive extradition" is not based on any official court document. It is based on a December 15 teletype from the Chicago Police Department Extradition Unit to the Milwaukee Police Department advising that "Your fugitive in our custody. . . . Appeared our ct this date & refused to waive formal extradition."
¶122 Judge McMahon relied on a September 24, 2004, transcript from an
unrelated case, State v. Jeffrey Townsend, #01-CF-005345, Circuit Court,
Milwaukee County, to explain Carter's refusal to waive extradition. In the Townsend transcript, a Cook
County Sheriff's Department Extradition Unit officer was asked: "So how is
it you knew he was not going to agree to extradition?" Answer: "Well, I knew that he couldn't
agree to the extradition part because he had a local charge, and we had to finish
that local charge before we send him back to
¶123 This testimony is the source of Judge McMahon's statement that
"Defendant could not agree to extradition because he had a pending local
charge and that local charge had to be resolved before he could be sent back to
This is a teletype that we send automatically to the
jurisdiction that wants the wanted subject that we have in custody. This is telling the
Milwaukee Police Department . . . that the above subject,
Jeffrey Townsend, is in our custody, is fighting extradition back to your state
Given the explanation of the Townsend teletype in that testimony, there is no hard evidence that Carter actually "refused" extradition.
¶124 Judge McMahon's statement also does not specify what "local
charge" the court is alluding to.
The charge could be the DUI on which Carter would be serving time after
revocation. On the other hand, the
charge could be the robbery charges that were imminent. In either event, the court's finding is very
important to the resolution of this case.
It is not relevant whether Carter waived extradition or refused
extradition: he was not going anywhere until
¶125 According to
¶126 The Townsend transcript explains that authorities check on local charges before they take a prisoner to court on an out-of-state warrant, inasmuch as local charges will have priority. This could explain why several days after Carter's arrest, robbery investigators arranged for a "Writ and physical lineup including Carter" to be held on December 19, 2003. On that day, they picked Carter up at 9:15 a.m. at the jail and transported him to "Area 3" for the lineup. They gave him Miranda warnings at 9:25 a.m. Carter gave an oral statement and then a written statement, and he was identified by both victims as one of the June 9, 2002, robbers.
¶127 Judge McMahon found that Carter was arrested on December 19, 2003, on a charge of armed robbery. On that date, Carter was still in jail serving his DUI sentence.
¶128 The record does not indicate when Carter made his initial appearance
¶129 Notwithstanding his two inculpatory statements to police, Carter
fought the robbery charges for many months.
He remained in custody until October 19, 2004, when he entered a guilty
plea and was sentenced on two robbery counts concurrently to 14 years in
prison. Carter has not established that
before this sentencing he was held exclusively or even primarily on the charge
¶130 The issue presented in this case is how much sentence credit, if any, Patrick Carter is entitled to on his Wisconsin conviction for reckless endangerment, first degree, for the time he spent in the Cook County Jail or other Illinois custody, from December 13, 2003, when he was arrested, through October 19, 2004, when he was convicted and sentenced on the liquor store robbery. This requires the court to interpret Wis. Stat. § 973.155, which reads in part:
Sentence credit. (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, 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.
(b) The categories in par. (a) . . . include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 302.113(8m), 302.114(8m), 304.06(3), or 973.10(2) placed upon the person for the same course of conduct as that resulting in the new conviction.
¶132 The sentence credit statute carries a heavy burden because it must
be applied in an "almost endless variety" of factual
circumstances. State v. Elandis
Johnson, 2009 WI 57, ¶23,
¶133 Wisconsin Stat. § 973.155 was part of 1977 Senate Bill 159, which became Chapter 353, Laws of 1977. The language in § 973.155(1)(a) has been the same since it became law in May 1978.
¶134 The language in § 973.155(1)(a) was derived from 18 U.S.C. § 3568 (1977), which read in part:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. (Emphasis added.)
¶135 One of the early cases interpreting § 973.155 was Gavigan, in which the court noted:
Section 973.155, Stats., was created by ch. 353, Laws of 1977. This section established an entitlement to sentence credit that was broader than prior case law and was intended to extend credit for all days spent in custody in connection with the course of conduct for which sentence was imposed. . . . Our supreme court recommended to the legislature that a simpler, more equitable system be enacted based on the federal system. Within a short time, sec. 973.155 was enacted and it is similar to the federal statute.
¶136 These cases establish the link between § 973.155 and 18 U.S.C. § 3568. Both
the Gavigan court and the Boettcher court utilized federal cases
interpreting the federal statute as they made their own decisions. "Federal court cases dealing with
similar facts and construing a similar statute have reached the same result." Gavigan, 122
¶137 In State v. Beets, 124 Wis. 2d 372,
369 N.W.2d 382
(1985), this court also cited federal cases "interpreting the analogous
federal statute, 18 U.S.C., sec. 3568," for guidance in interpreting
Wisconsin's sentence credit statute.
¶138 Although 18 U.S.C. § 3568
was repealed and recreated in revised form in 1984,
federal cases interpreting 18 U.S.C. § 3568
are highly relevant because the former statute was not only
"analogous" but also the acknowledged source of Wis. Stat. § 973.155(1), and
¶139 When they interpreted 18 U.S.C. § 3568, federal courts consistently denied credit on federal sentences for time spent in state custody, with one notable exception. In Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974), the court stated:
The only situation where credit has been given for the serving of time for a different offense is where a state prisoner has been denied release on bail solely because of an outstanding federal detainer lodged against him. In that case courts have held that he is in custody "in connection with" the federal offense and entitled to credit against his federal sentence for time spent in state custody under those circumstances.
¶140 The interpretation of 18 U.S.C. § 3568 was summed up several years later in Boniface v. Carlson, 856 F.2d 1434 (9th Cir. 1988), where the court said:
A prisoner in state custody who cannot secure his release on bail because of a federal detainer is entitled to credit against his federal sentence for the time he would otherwise be out free on bail. See 18 U.S.C.A. § 3568 (West 1985) (repealed 1984, effective Nov. 1, 1986). To secure this credit, however, the prisoner must establish not only that the federal detainer was the sole reason for the denial of bail, but also that the state did not credit his state sentence for that time.
¶141 As noted, the legislature adopted § 973.155(1) in the 1977 session. Thereafter, the Wisconsin Criminal Jury
Instructions Committee drafted special materials to suggest standards for the
proper determination of sentence credit under the new statute.
The following situations would be within this definition of custody:
1. detention in the county jail before bail is set or thereafter;
2. detention in the county jail during nonworking hours as a condition of bail release or probation;
3. commitment for the determination of competency to stand trial under § 971.14(2) or commitment as not competent to stand trial under § 971.14(5);
4. detention in jail in another state when
that detention is in connection with a course of conduct for which sentence is
Wis. JICriminal SM-34A at 6 (1982) (emphasis added).
¶142 The Committee's out-of-state example was ambiguous. Three months before the Committee issued
special materials on Wis. Stat. § 973.155(1),
Attorney General Bronson C. La Follette released an opinion on sentence
credit for revoked probationers and parolees.
The intervening period between arrest on a parole
violation warrant and the issuance of charges by the foreign jurisdiction would
be the result of the
¶143 By 1986 the committee had reconsidered the wording of its out-of-state example because it was too broad. It changed the special materials to read:
4. detention in jail in another state when that
detention results exclusively from a
¶144 The 1986 special materials then gave an additional example:
Not included within the definition of "custody" for sentence credit purposes are the following situations:
. . . .
4. detention in another state based on an
offense committed in that state, even if a
¶145 These two examples were in complete conformity with the federal interpretation of 18 U.S.C. § 3568 and the Attorney General's opinion. The Committee explained its examples as follows:
4. Credit should be granted when, for example, a
Wisconsin parolee is arrested in
¶146 The 1988 version of the special materials contained the exact same
examples and explanation. The 1991
version is the same except that the committee added State v. Rohl, 160
¶147 The 1995 version of the special materials includes the same examples
and explanation as the 1991 version, and the 1995 version is the latest to be
issued on this point. In short,
detention in another state based on an offense committed in that state, even if
¶148 In an opinion filed November 1, 2007, the court of appeals
repudiated the examples set out in the special materials. State v. Carter, 2007 WI App 255, 306
that Carter is entitled to sentence credit for the days from December 14, 2003,
when he was taken into custody in
¶149 In retrospect, the court of appeals was presented with incorrect facts. It also misconstrued the law. Some of the factual errors are revealed in the majority's opinion. The legal deficiencies are largely adopted in the majority opinion. Thus, although the correct rule to decide this case is stated in the special materials, the majority opinion, which changes the rule, requires a comprehensive response.
¶150 Determining sentence credit is one of the most common duties of a
circuit court. This duty requires the
circuit court to answer two questions.
First, was the defendant "in custody" within the meaning of
Wis. Stat. § 973.155(1)? Second, was all or part of the
"custody" for which sentence credit is sought "in connection
with the course of conduct for which sentence was imposed"? Elandis Johnson, 318
¶151 Sometimes the amount of sentence credit turns on the interpretation of the words "in custody." Other times it turns on the interpretation of the "in connection with" clause. On occasion, the court's determination requires interpretation of both factors.
A. "In Custody"
¶152 Almost from the beginning,
¶153 The special materials explain that "in custody" is not
defined for purposes of § 973.155. The materials suggest that "the
definition of 'custody' used for purposes of the criminal escape statute, § 946.42, may be
applicable to the sentence credit issue: If any part of the offender's status
would be considered 'custody' for purposes of the escape statute, credit is
¶154 One implication of the committee's analysis is plain: A person
confined to an
¶155 In State v. Demars, 119
¶156 In the meantime, on February 22, 1983, the Winnebago County District
Attorney filed unrelated criminal charges against Demars for
¶157 The issue on appeal was whether Demars was entitled to sentence
credit on the Winnebago County crimes for the period from February 25, when the
Winnebago County detainer was filed, until May 18, the day Demars was sentenceda total of 83 days.
¶158 Public Defender Glenn Cushing argued on appeal that the issue was
"whether the defendant's custody in the
¶159 The court of appeals did not rely on the escape statute to decide
the case. It used Black's Law
Dictionary, which defined "custody," in part, as "the detainer
of a man's person by virtue of lawful process or authority." Demars, 119
A close analysis of all the cases cited by Demars shows the presence of a legal event, process or authority which occasioned, at least in part, the custody of the defendant relative to the charge for which he was ultimately sentenced. We conclude that "custody" as used in sec. 973.155, Stats., must necessarily result from the occurrence of a legal event, process, or authority which occasions, or is related to, confinement on the charge for which the defendant is ultimately sentenced.
¶160 The court explained:
Examples of lawful process or authority resulting in custody in a criminal case include arrest with or without a warrant, arrest upon a capias or bench warrant, unsatisfied bail requirements resulting in confinement, sentence to confinement, temporary detention pursuant to sec. 968.24, Stats., probation or parole holds, and periods of confinement imposed as a condition of probation.
¶161 A "detainer," the court said, did not meet this
standard. "The term 'detainer'
carries no custodial mandate in our jurisprudence."
¶162 The Demars analysis is very useful in establishing a second
prerequisite of "custody."
Carter's arrest in
¶163 That "custody" requires both elements was made clear in State
v. Magnuson, 2000 WI 19, 233
¶164 After pleading no contest to three counts, the defendant sought
sentence credit for the six months he resided with his pastor as a condition of
[N]umerous cases have interpreted the sentence credit statute and concluded that the plain meaning of custody under the statute corresponds to the definition of custody contained in the escape statute, Wis. Stat. § 946.42.
. . . .
[W]e determine that for sentence credit purposes an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status.
In establishing this definition, we modify the approach set forth in Gilbert in that we do not limit the inquiry to the definition of custody contained only in Wis. Stat. § 946.42(1)(a). Instead, we acknowledge the importance of reading statutes in pari materia . . . and include for reference other statutory provisions in which the legislature has classified certain situations as restrictive and custodial by attaching escape charges for an unauthorized departure from those situations.
. . . .
In sum, we determine that for purposes of sentence credit an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status.
¶165 It must be noted that the defendant in Magnuson was subjected
to multiple court-ordered conditions of release occasioning his status, so that
he met the standard set out in the Demars case. He did not get sentence credit, however,
because he was not subject to an escape charge under any provision of
Carter was not "in custody" within the meaning of § 973.155 when
he was confined in the Cook County Jail because he was not subject to an escape
charge under any provision of
¶167 This analysis immediately raises the question whether a person held
interpreting § 3568
we are definitely committed to the position that time spent in State custody must
be credited toward time served on a Federal sentence if the continued State
confinement was exclusively the product of such action by Federal
law-enforcement officials as to justify treating the State jail as the
practical equivalent of a Federal one.
¶168 Credit must be given in this hypothetical circumstance for a
constitutional reason, not a statutory reason.
See Klimas v. State, 75
B. "In Connection With"
¶169 Determining that a defendant was "in custody" within the meaning of Wis. Stat. § 973.155(1) does not settle the issue of sentence credit. The court also must determine whether all or part of the custody for which sentence credit is sought was "in connection with the course of conduct for which sentence was imposed."
¶170 There are numerous cases in which a defendant's request for sentence
credit was denied on grounds that his custody was not "in connection with
the course of conduct for which sentence was imposed." See, e.g., Elandis Johnson,
¶171 The Elandis Johnson case establishes that:
Elandis Johnson, 318
¶172 The Elandis Johnson case pounds the necessity of a factual
connection between custody and "the course of conduct for which
sentence was imposed." Floyd emphasizes not only that a factual
connection is necessary "for sentence
credit . . . [but also that] a procedural or other
tangential connection will not suffice." Floyd, 232
¶173 Three cases illustrate some of the principles at play in the "in connection with" clause. These cases all present some factual "connection" or relationship between "custody" on Crime A and sentence on Crime B, but not all lead to sentence credit.
¶174 At one end of the "in connection with" spectrum is Beets. Beets was on probation for two drug crimes
when he was arrested on a burglary charge.
¶175 About six months later, Beets pled guilty to the burglary and was
sentenced to a prison term that was to run concurrent with the previously
imposed sentence on his drug crimes.
¶176 The circuit court denied his request.
¶177 This court disagreed. It
concluded that "the sentence on the drug charges was not related or
connected to the burglary course of conduct." Beets, 124
[A]ny days spent in confinement after the revocation of probation and the imposition of sentence arise out of, and are connected not with the burglary, but the unrelated conduct which resulted in the drug convictions more than a year earlier. Thus, the offenses are not connected.
¶178 The court had to concede "a temporal connection . . . because it was the
burglary arrest that triggered the probation hold on Beets."
¶179 All confinement in the Beets case qualified as "custody" under Floyd principles and under Demars principles. But any "connection" between the drug crimes and the burglary was "severed" by Beets' sentence on the drug crimes.
¶180 At the other end of the "in connection with" spectrum is State
v. Thompson, 225
¶181 About a month later, Thompson's juvenile aftercare was revoked as a
result of the new offenses.
¶182 The denial of credit for the juvenile institution confinement was
reversed by the court of appeals, which distinguished the situation in Thompson
from the situation in Beets.
¶183 In sum, the juvenile system custody after revocation was "in connection with the course of conduct for which sentence was imposed," and it required sentence credit.
¶184 The case of Marcus Johnson falls between Thompson and Beets. In June 2001 Marcus Johnson was committed to
a secured juvenile institution after being found delinquent on multiple
grounds. Marcus Johnson, 304
¶185 The Marcus Johnson court reached the following conclusions:
(1) Johnson's initial confinement in a secured juvenile institution was
completely unrelated to the felony battery.
¶186 This court said: "The issue . . . is how large a factor
did the June 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."
¶187 The court noted that the phrase "in connection with" was
"subject to both a narrow and broad interpretation.
¶188 The court quoted and approved the following language from Beets:
[T]hat any connection which might have existed between custody for the drug offenses and the burglary was severed when the custody resulting from the probation hold was converted into a revocation and sentence.
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 [Beets'] freedom from confinementhis right to be at libertywas 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.
Marcus Johnson, 304
¶189 The Marcus Johnson court went on to say:
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." A narrow interpretation of the phrase "in connection with" furthers this purpose. If Johnson would have been in custody even if the June 2002 battery had never occurred, he is not being treated unfairly by not receiving sentence credit for that time.
. . . .
We . . . 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. It is amply supported by the record. . . . Johnson's time spent in juvenile custody was not in connection with the June 2002 battery, and he is not entitled to sentence credit under Wis. Stat. § 973.155 for the entire 608 days he spent in custody after his arrest awaiting adult sentencing.
¶190 All of Marcus Johnson's custody, like Beets' custody, satisfied the
requirements set forth in Floyd and Demars. But part of his custody had no connection to
his battery offense, while another part was deemed irrelevant because he would
have been in custody "even if the June 2002 battery had never
¶191 This analysis is a second way of evaluating Carter's confinement in
¶192 Judge McMahon found that Carter was arrested in
¶193 Carter appeared before an
¶194 When Carter's probation was revoked on December 15 and he was
sentenced to 30 days in jail, less three days of sentence credit, his
sentence severed any connection between his confinement and the
¶195 Before Carter's confinement in the jail could be
"reconnected" to the
¶196 Carter might have chosen to fight extradition by not posting bond in the robbery case, or he might not have been able to post bond, but Judge McMahon found as a fact that "Defendant could not agree to extradition because he had a pending local charge and that local charge had to be resolved before he could be sent back to Wisconsin." This court is bound by that finding because it is not clearly erroneous.
¶197 In addition, Carter would have been arrested even if there
had been no
¶198 Carter was on a $5,000 bond for an
¶199 Carter's sentence on the DUI severed any connection between
his confinement and the
¶200 Carter was charged with armed robbery before his DUI sentence expired.
¶201 If Carter was denied bail on the Wisconsin warrant, the denial
served the acknowledged interests of
¶202 In any event, Carter deliberately delayed his return to
¶203 Carter cannot satisfy the requirement that his days of confinement in the Cook County Jail were "in connection with the course of conduct for which sentence was imposed" if this court follows the principles stated in Beets and Marcus Johnson.
¶204 Carter's case is the embodiment of the hypothetical example set out in the special materials:
4. detention in another state based on an
offense committed in that state, even if a
¶205 The example denying sentence credit is the flip side of the example requiring sentence credit:
4. detention in jail in another state when that
detention results exclusively from a
¶206 As noted above, the Criminal Jury Instructions Committee provided the following explanation for its examples of out-of-state confinement:
4.  Credit should be granted when, for
example, a Wisconsin parolee is arrested in
¶207 The court of appeals asserted that the Demars and Nyborg
cases do not support "the proposition that a person detained in jail in
another state is not 'in custody in connection with' under Wis. Stat. § 973.155 unless the
person is in custody exclusively pursuant to a
Section IIIA(4) read together with the footnote references to Demars and Nyborg suggests that the detainer in those cases did not trigger sentence credit because the defendants were already in custody. However, that is not correct. As we explained in Demars, a "detainer" . . . simply notifies the jurisdiction in which the defendant is confined that 'his [or her] custody [is] desired elsewhere.'" We specifically distinguished between a detainer and a warrant for an arrest (and other lawful means of arrest). . . . [T]here is nothing in either Demars or Nyborg that supports the proposition that, if a defendant in custody in another state both because of an arrest under the law of the state and under a Wisconsin warrant, the defendant is not "in custody" under the Wisconsin warrant for purposes of Wis. Stat. § 973.155.
¶208 The third sentence of the committee's comment is factually
correct. The committee did not overstate
its reliance on the two cases when it said that Demars and Nyborg
were "consistent with" the statement that "credit should not be
granted when a Wisconsin parolee, already in custody on
¶209 The committee is clearly correct with respect to detainers based on
the facts of Demars. The
committee also is correct with respect to the mere existence of an arrest
warrant. State v. Villalobos, 196
Demars, Villalobos argues that here an arrest warrant with cash bail and
complaint had been issued. We disagree
that the difference in the form of the legal process changes the result. The teaching of Demars is that the
mere existence of legal process does not, in and of itself, trigger
custody. Demars offered some
examples of custody which would qualify for sentence credit.
Villalobos argues that he has shown this
linkage because the
¶210 The record in the present case indicates that Carter was
arrested simultaneously on two warrants, including the arrest warrant
¶211 In Wisconsin, when a court in one county issues an arrest warrant for a person who is in custody in another county, the person is not re-arrested and brought before a judge in the county where he is confined. Rather, the arrest warrant serves the same purpose as a detainer. The county issuing the arrest warrant does not acquire "custody" of the person until it issues a writ and brings the person before its court.
¶212 In this case involving an out-of-state arrest on two different
warrants, the felony arrest warrant from Wisconsin, the Illinois fugitive
warrant, and the subsequent demand for requisition from the governor of
Wisconsin were all functionally equivalent to a detainera notice to the Cook County Jail that Carter's presence
was desired in Wisconsin. Strong
language is used in the governor's requisition demand, but
¶213 This court must look beyond the technicalities of various legal
instruments to understand what actually happened in Carter's case. If
¶214 The court of appeals also dismissed the Criminal Jury Instructions Committee's reliance on Rohl. The court said:
Rohl does not support the proposition that a
defendant is not in custody in connection with a
¶215 In Rohl, the defendant was released on parole in
¶216 Rohl was convicted of the
¶217 Upon completion of his sentence in
¶218 The decision of the hearing examiner granted "custody
credit" from April 20, 1989, when Rohl was placed "in custody solely
as a result of his Wisconsin detainer," until he was received at the
¶219 The court of appeals affirmed on the grounds that "Rohl's
credit request constitutes impermissible double credit against two
non-concurrent sentences." Rohl,
¶220 In reaching its decision, the Rohl court did not criticize
the hearing examiner or the circuit court, nor did it say that a concurrent
sentence must result in dual credit.
It approvingly cited Boettcher, where the court noted that the
"federal courts are firm and unanimous that there shall be no dual credit
for the same presentence time served."
¶221 A careful review of Rohl shows that it was not misread by the Criminal Jury Instructions Committee. Rohl's reference to concurrent sentences has been taken too far.
¶222 One case that generated confusion about sentence credit and
concurrent sentences was State v. Ward, 153
Applying pre-sentence credit against only one of the concurrent three-year terms defeats the concurrent nature of the sentence because the first term is reduced to two years and 132 days, while the remaining two terms stand at three full years. Thus, implementation of the concurrent sentences imposed by the trial court requires that the 233-day credit be applied against each of the concurrent three-year terms.
¶223 Subsequent court decisions interpreted the Ward language as requiring identical sentence credit on all concurrent sentences imposed at the same time. This principle was shattered in State v. Elandis Johnson, 2008 WI App 34, 307 Wis. 2d 735, 746 N.W.2d 581, aff'd 2009 WI 57, 318 Wis. 2d 2, 767 N.W.2d 207, where the court of appeals showed that Ward's presentence custody was exactly the same in all three drug cases, which required that the same sentence credit be given in all three cases.
¶224 When this court reviewed Elandis Johnson, it unanimously
affirmed the court of appeals' clarification of Ward. It also drew on supportive language in the
special materials, see Elandis Johnson, 318 Wis. 2d 21, ¶63 (explaining that there
will be situations when the periods of time for which credit is due on
unrelated concurrent sentences will not line up with each other) (citing Wis.
JICriminal SM-34A, at
12). The resulting principles of law are
quoted in Elandis Johnson, 318
¶225 In sum, the court of appeals in this case was misled about the facts. It was not informed about and did not examine federal law interpreting 18 U.S.C. § 3568. It did not fully appreciate the bases for the examples in the special materials. It misread Marcus Johnson, and it did not have the benefit of the two Elandis Johnson decisions, explaining Ward and the relationship between sentence credit and concurrent sentences.
¶226 The majority opinion attempts to straighten out the factual discrepancies
between Judge McMahon's findings and the facts set out by the court of
appeals. However, there is no way to
sugarcoat the failure of the parties to submit the complete facts to Judge
McMahon. The parties did not advise the
circuit court about what conditions of release, if any, were set by
¶227 With respect to the law, the majority opinion relies on the
incorrect analysis of the court of appeals and a mistaken interpretation of the
Elandis Johnson case to award Carter 305 days of credit on his Wisconsin
sentence for virtually all of his presentence confinement in
¶228 This dissent has previously addressed the court of appeals' legal analysis, but the Elandis Johnson case requires separate comment.
¶229 The Elandis Johnson case stands, in part, for the proposition
that Wis. Stat. § 973.155(1)
does not provide sentence credit for time in custody that is not related, or is
only procedurally related, to the matter for which sentence was imposed. Elandis Johnson, 318
¶230 In applying Wis. Stat. § 973.155 to the facts in Elandis Johnson, this court repeatedly emphasized that sentence credit must be based on "custody" that is factually connected to the course of conduct for which sentence was imposed. A factual connection is a prerequisite. The court did not say, however, that once a defendant shows some factual connection between confinement and the course of conduct for which sentence was imposed, he automatically earns sentence credit.
¶231 A defendant must establish, first, that he was "in custody" within the meaning of the statute, satisfying the tests in both Floyd and Demars. He then must show that the "custody" for which he claims credit is not only factually related, but also is not "precluded," or "severed," or made irrelevant by other facts or legal process. Here, we should ask how large a factor the Wisconsin warrant was in the decision to arrest Patrick Carter and keep him in custody from December 13, 2003, to October 19, 2004.
¶232 The majority is correct in recognizing that Carter is not entitled
to sentence credit in
¶233 The majority is also correct that Carter is not entitled to credit
for any confinement in
¶234 What the majority fails to appreciate is that Carter's confinement
in the Cook County Jail between December 19, 2003, and October 19, 2004, is
grounded almost entirely upon
¶235 Carter failed to establish that his detention in
¶236 In 2005 Carter was brought to
¶237 The majority opinion is legally mistaken in many ways, but it is also problematic because it is likely to inspire countless motions for additional sentence credit based upon the new principles of law announced in the opinion.
¶238 For the reasons stated, I respectfully dissent.
¶239 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I dissent from the majority opinion, which
awards the defendant 305 days of sentence credit on a Wisconsin sentence for
time spent in
¶240 On July 23, 2003, the defendant was charged with first-degree
recklessly endangering safety in violation of Wis. Stat. § 941.30(1). On that same date, a felony warrant and
authorization for extradition was executed in
¶241 Ten months later, on June 29, 2006, the defendant filed a
post-conviction motion in
¶242 As the utterly deficient record in this case makes clear, the most
appropriate time to determine sentence credit is at the sentencing itself. Four-and-a-half years later, the majority
finds itself drawing assumptions from next to no records detailing the
defendant's custody in Illinois. I
decline to join the majority's award of 305 days of sentence credit to a
defendant who failed to present any Illinois court records proving that he was
"in custody" in Illinois "in connection with the course of
conduct for which sentence was imposed" in Wisconsin. See
¶243 The defendant now seeks credit for time spent in presentence custody
¶244 I agree with the majority that Wis. Stat. § 973.155(1)(a) provides for sentence credit
"for all days spent in custody in connection with the course of conduct
for which sentence was imposed."
Despite the majority sidestepping the issue, the statute indeed requires
that the defendant be "in custody" "in connection with" the
[B]ecause Beiersdorf posted a personal recognizance bond on the felony sexual assault charge and remained on that bond until his sentencing, and because he was in custody on cash bail only on the subsequent bail jumping and sexual intercourse charges, the forty-four days in custody, under § 973.155(1)(a), Stats., was 'custody' only 'in connection with the course of conduct for which sentence was imposed' and stayed on the bail jumping.
¶245 In State v. Villalobos, the court of appeals held that
Villalobos was not entitled to sentence credit because he failed to meet his
burden of demonstrating that the custody for which he sought credit was in
connection with the charge he was sentenced on.
¶247 As the Villalobos court explained, in Demars, the
defendant sought credit against a Winnebago County sentence for time spent in
presentence custody served in Fond du Lac County relating to a Fond du Lac
probation revocation proceeding.
The communication by the
Winnebago county authorities to the
¶248 According to the Villalobos court, "[t]he teaching of Demars
is that the mere existence of legal process does not, in and of itself, trigger
¶249 Villalobos argued that the Racine County jail records demonstrated the
necessary link under the Demars test, as a reference to the Kenosha
County charge was included in a list of the various reasons for his
¶250 In this case, the defendant has introduced no proof that he was
arrested and held in custody in
¶251 Even assuming that the defendant was arrested in Illinois on the
Wisconsin warrant, the record is void of any court records proving that
Illinois filed a fugitive complaint or held an extradition proceeding. The record fails to contain any court
documents or entries which would evidence that any case was filed or extradition
proceeding held on the Wisconsin charge such that the defendant would be
entitled to credit for being "in custody in connection with" the
¶252 The holding of a defendant for extradition is not without certain
requirements and protections. The
Extradition Clause of the United States Constitution governs interstate
extradition and provides that any person accused of committing an offense in
one state, who flees to another state, must be returned to the state where the
crime was committed upon request of that state's executive authority.
the arrest and the issuance of the fugitive complaint, pursuant to Wis. Stat.
§ 976.03(15) and 725 Ill. Comp. Stat. 225/15, a judge in the asylum state must determine whether the
appearing defendant is the person charged with committing the crime in the
demanding state and whether the defendant is a fugitive from justice. See Hughes, 68
fact, we are not presented with any Illinois court records which would prove
that the extradition proceeding, mandated by the Uniform Criminal
Extradition Act and codified at Wis. Stat. § 976.03 and 725 Ill. Comp. Stat. 225, actually took
place in this case. See State
ex rel. Ehlers v. Endicott, 188
¶255 The evidence that the majority so heavily relies on to conclude that an extradition proceeding took place consists of two non-authenticated teletype messages sent from the Chicago Police Department Extradition Unit to the Milwaukee Police Department. The first message, sent on December 15, 2003, purportedly gives notice that the defendant "appeared our ct this date & refused to waive formal extradition" and requested that the Milwaukee Police Department "plz proceed with [its] governors warrant application." The second message, sent March 5, 2004, purportedly advised that the "governors warrant has not yet been received" and that the "fugitive charge must be dismissed" if the warrant is not received within the 90-day period of commitment authorized by sections 16 and 17 of the Uniform Criminal Extradition Act. It is apparently these teletype messages alone that the circuit court relied upon and the majority now uses to find that the defendant in fact appeared in Cook County Court on December 15, 2003, for an extradition proceeding and was thereafter held in custody in connection with the Wisconsin charge for almost a year.
¶256 We do have in the record a governor's warrant that Governor Jim
Doyle apparently signed on February 6, 2004, to extradite the defendant back to
¶257 In any event, at oral argument, the parties agreed that the
defendant was transferred to
¶258 The confusion caused by the majority opinion may not be limited to
interstate situations. Sentence credit
issues arise on a daily basis in trial courts all across
¶259 In conclusion, the defendant has failed to prove that he is entitled
to sentence credit on the Wisconsin charge for time spent in
¶260 For the foregoing reasons, I respectfully dissent.
 State v. Gavigan,
 State v. Carter,
2007 WI App 255, 306
 All references to the
 After sentencing in
 State v. Villalobos,
 State v. Johnson (Marcus Johnson), 2007 WI 107, ¶27, 304 Wis. 2d 318, 332, 735 N.W.2d 505; State ex rel. Pharm v. Bartow, 2007 WI 13, ¶13, 298 Wis. 2d 702, 713, 727 N.W.2d 1.
 The court of appeals rejected
credit for this time period, reasoning that the defendant was in custody solely
on the basis of serving a sentence on the
 In the previous proceedings in this case, both parties and the courts below relied substantially on an investigation report prepared by the Office of the State Public Defender. This report, originally attached to the defendant's postconviction motion, was apparently based on a telephone call with an investigator at the extradition unit of the Chicago Police Department. Other parts of the record indicate that the extradition unit was connected with the Office of the Cook County Sheriff.
Several of the circuit court's findings of fact following our remand differ from those stated in this earlier report. For instance, the earlier report stated only that the defendant was "booked in the Cook County Jail" on December 14, 2003. The finding of fact, supported by the Chicago Arrest Report, an exhibit in the record, shows that the defendant was arrested on December 13, 2003. The Investigation Report stated that the defendant was sentenced on the Illinois armed robbery charges on November 2, 2004, while according to the findings of fact, supported by the exhibits, the Illinois sentencing date was actually October 19, 2004.
Investigation Report also states that the defendant was "charged"
the discrepancies in what we do now know, we now rely on the circuit court's
findings of fact instead of the Investigation Report. The circuit court found that the defendant was
arrested on the basis of the outstanding
 For a discussion of the "documentary evidence exception" to the clearly erroneous standard of review, see Phelps v. Physicians Ins. Co., 2009 WI 74, ¶¶37-38 (majority op.), ¶¶71-74 (Bradley, J., dissenting).
 The calculation of 324
days differed in two ways from our holding today. First, it was based on the belief that the
defendant had not been sentenced on the
 Carter, 2007 WI App 255, ¶9.
 As the court of appeals
explained, "[t]he special material is prepared by the Criminal Jury
Instructions Committee and 'is a comprehensive study of the sentence credit
statute with guidelines for its implementation in the trial court.' State v. Gilbert, 115
 Carter, 2007 WI App 255, ¶18.
 The 2007 Marcus Johnson case was decided after the initial briefing in the present case at the court of appeals, and the court of appeals asked for and received supplemental briefing from the parties on the question whether the 2007 Marcus Johnson decision applies to the present case. Carter, 2007 WI App 255, ¶28.
 Carter, 2007 WI App 255, ¶¶28-30.
 Brief of Plaintiff-Respondent-Petitioner at 7-8.
 Brief of Plaintiff-Respondent-Petitioner at 23.
 Findings of Fact No. 10.
 The defendant pointed
to the equal protection concepts underlying Wis. Stat. § 973.155 and argued that for concurrent sentences,
"dual credit 'is necessary to insure that the defendant who was unable to
post bail is not incarcerated any longer than a comparable individual who could
post bail.'" Brief of
Defendant-Appellant at 27 (citing Richard White, Sentence Credit: More Than
 The 2009 Elandis Johnson case was argued on the same day this court first heard argument in the instant case, September 12, 2008.
 Joint Response at 2-3
(citing Elandis Johnson, 318
 Bergmann v.
 State v. Ward,
 Elandis Johnson, 318
 In contrast to this straightforward approach, Justice Prosser spins a long, winding tale about the sentence credit statute. Where the tale leads, and what lesson is to be learned, is difficult to fathom.
Among other detours, Justice Prosser takes up issues
never raised or argued in this case's long history, including the definition of
custody. See Justice Prosser's
dissent, ¶¶153-168. The dissent cites as "highly
relevant" numerous federal cases never previously cited in any
So at the end of the dissent's twisting tale, it is difficult to discern what result Justice Prosser would favor except to disagree with the result set forth herein. What lessons circuit courts might glean from the dissent's take on the established law remain a mystery.
 Justice Roggensack attempts to
shift the focus away from the factual connection the court emphasized in Elandis
Johnson to "necessary legal process," a phrase not used in the
statute or in our previous decisions. See
Justice Roggensack's concurrence/dissent, ¶93.
According to Justice Roggensack, the defendant's
Furthermore, in Hughes, as in the instant case, the person was in custody in the asylum state on the basis of information that the person was wanted on a felony charge in another state.
defendant in the instant case was taken into custody by valid police authority,
on December 13, 2003, when
 For an example of a
Wisconsin police officer's making an arrest of a person found in Wisconsin on
the basis of an outstanding Nebraska warrant, see State v. Hoffman, 163
Even if it were arguable, and it is not, that the defendant's arrest and custody in Illinois on the basis of the Wisconsin felony warrant were not lawful, the defendant was factually in custody on December 13, 2003, in connection with the course of conduct in Wisconsin.
 See 11 U.L.A.
Appendix I (2003). The relevant
provisions of the Uniform Criminal Extradition Act remain the statutory law of
both Wisconsin and Illinois, even though "the Uniform Criminal Extradition
Act (as last revised in 1936) was withdrawn from recommendation for enactment
by the National Conference of Commissioners on Uniform State Laws in 1982 due
to it being superseded by the Uniform Extradition and Rendition Act (1980)."
 Wayne R. LaFave et al., Criminal Procedure § 18.4(c) (2007).
 This provision in its
entirety, as codified in
(14) Arrest without a warrant. The arrest of a person may be lawfully made also by an officer or a private citizen without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year; but when so arrested the accused must be taken before a judge with all practicable speed and complaint must be made against the accused under oath setting forth the ground for the arrest as in sub. (13); and thereafter the accused's answer shall be heard as if the accused had been arrested on a warrant.
Authority for the arrest is confirmed by 725 Ill. Comp. Stat. 5/107-2(1)(b):
(1) A peace officer may arrest a person when:
. . . .
(b) He has reasonable grounds to believe that a warrant for the person's arrest has been issued in this State or in another jurisdiction[.]
 Under the Uniform Act, the
governor of each state has a duty "to have arrested and delivered up to
the Executive Authority of any other state . . . any person charged in
that State with treason, felony, or other crime . . . ."
 Finding of Fact No. 2.
 As stated in note 8 above, an
earlier investigator's report asserts that the defendant was not
"charged" with the Wisconsin Fugitive Warrant until December 16, 2003. Nothing in the record supports this
date. Moreover, even if supported, the
date is now immaterial, since the fact of the defendant's lawful arrest on the
basis of the outstanding
 At oral argument there was
speculation that the defendant was arrested because he had been under
investigation for a June 9, 2002
Justice Prosser: "My theory is that on the
13th of December, somehow the Chicago Police went out to find [the
defendant]. They had an
Defense Counsel: "While I believe that is speculation, I've speculated exactly the same way. . . .
. . . .
Justice Prosser: Well that's my speculation here. What we'd hoped is that you would clarify this so we wouldn't have to speculate . . .
Defense Counsel: Well, my position would be this: When an arresting officer tells me that he arrested someone based on two warrants, we take him at his word. I therefore believe it is not speculation that's what he arrested him on . . . .
Justice Prosser persists in his "speculation." See Justice Prosser's dissent, passim and ¶¶125-126 & nn.1-2, ¶193. This court does not resolve cases on the basis of speculation, confabulation, or "theories" about what may or may not have occurred. We resolve this case on the basis of the record before us and the circuit court's findings of fact based on that record.
the circuit court found as a fact that Carter was arrested on the basis of the
Ziegler and looks askance at certain of the circuit court's findings of fact,
or ignores documents in the record that are inconvenient to her view of the
case. Yet no justice has identified any
one of the circuit court's findings of fact as being clearly erroneous. For instance, Justice Ziegler's dissent,
¶¶259, 250, suggests that Chicago Police merely "possess[ed] knowledge"
of the outstanding
 Finding of Fact No. 6.
 Finding of Fact No
6. See 725
To support this point, defense counsel also submitted
into evidence (Exhibit No. 10) a certified transcript from a September 24, 2004
hearing in another case (State v. Townsend, No. 01-CF-005345, Circuit
Court, Branch 30, Milwaukee County). In
that proceeding, Investigator Wayne Layer of the Cook County Sheriff's
Department Extradition Unit described in some detail the normal extradition
procedures followed in
 Exhibit 9. The Uniform Act also creates the procedures
for the issuance of a "governor's warrant" to accomplish the
extradition of a fugitive charged in one state but arrested and detained in
 Finding of Fact No. 5.
 Finding of Fact No. 7.
 Finding of Fact No. 8; Exhibit No. 15.
 Exhibit 11. The 90-day period of detention authorized by Sections 15 and 17 of the Uniform Act beginning on December 15, 2003 would have expired on March 14, 2004.
 Exhibit 11.
 Finding of Fact No. 11.
 On this point at oral
argument, counsel for the state stated, "On my reading of the record, he
was held on fugitive
 Finding of Fact No. 10.
 Finding of Fact No. 11.
 Exhibit 10 at 23-24. This point is clarified in the transcript of testimony from Investigator Layer, see supra note 51.
Q: So a known procedure if the prisoner gets a local prison sentence, the governor's warrant goes back to the Chief Judge of the Criminal Division, and it gets dismissed?
A: That's correct.
 Finding of Fact No. 12.
 Brief and Appendix of Plaintiff-Respondent-Petitioner at 3-4, n.2.
 For a discussion of the interstate agreement on detainers, see 5 Wayne R. LaFave et al., Criminal Procedure § 18.4(c) (2007) (footnotes omitted). Professor LaFave writes:
[T]he necessity for extradition often can be avoided by proceeding under the Interstate Agreement on Detainers, a Compact which has been adopted by the federal government and virtually all the states. The IAD provides that a prisoner "serving a term of imprisonment" (which excludes a pretrial detainee, a person serving a misdemeanor sentence in the county jail, and perhaps a person still in a facility for temporary custody, but includes a person serving a prison term who has other charges pending in the incarcerating jurisdiction) against whom a detainer has been filed must be promptly notified of that fact and of his right to demand trial, and if he demands trial then trial must be had within 180 days thereafter; the request is a waiver of extradition by the prisoner, and the state by adopting the Compact has agreed to surrender the prisoner under such circumstances . . . .
The record in this case is consistent with the procedure
for extradition under a detainer. When
the defendant made an initial appearance in
 Finding of Fact No.
13. See also Transcript of
Plea/Sentencing Hearing, Aug. 30, 2005, at 37-38 ("And the court is going
to enter a concurrent sentence, and that would be for a initial confinement of
7.5 years and a extended supervision of five years, concurrent to your current
sentence. It may be served in
 The six days when the
defendant was serving a separate sentence on unrelated
 In dissent, Justice Ziegler argues,
in essence, that the record inadequately demonstrates that presentence custody
one argues this is the best of records, but we review the circuit court's
fact-finding for clear error and find none.
Justice Ziegler does not specify what clear error she thinks
occurred. She appears to object to the
Ziegler suggesting a per se rule that the circuit courts may only
base factual findings on official court records? "Trial courts have broad discretion in
determining the relevance and admissibility of proffered evidence." State v. Larsen, 165
critical facts are not disputed.
Carter's return to Wisconsin under a detainer, see Justice Ziegler's dissent, ¶257, is not relevant because no sentence credit is given for time after October 19, 2004, when Carter was sentenced in Illinois.
As to Justice Ziegler's concern about setting bail or bond, Justice Ziegler's dissent, ¶258, the exact problem is unclear.
 Findings of Fact 2, 14.
 I agree, however, with Justice Ziegler that the decision in this case addresses a very narrow set of facts and should not be seen as disturbing or modifying the principles established in our prior cases. Justice Ziegler's dissent, ¶239.
 See majority op., ¶17.
 Majority op., ¶9.
 Throughout this opinion
I use the terms "felony warrant" and "fugitive
warrant." As used herein, a
"felony warrant" is a warrant issued by a jurisdiction that seeks the
arrest of an individual for the alleged commission of a felony in that
jurisdiction. A "fugitive
warrant" is a warrant issued by an asylum state pursuant to the Uniform
Criminal Extradition Act.
Under the Uniform Criminal Extradition Act, the demanding
state is the state that is seeking the return of a defendant from another
 See Dallas Tyler, Chicago Police Department Extradition Unit, teletype of 12/15/03.
 July 5, 2006, Order of the Honorable Mel Flanagan; see also Dallas Tyler, Chicago Police Department Extradition Unit, teletype of 12/15/03.
 Ziegler, J.,
(citing State v. Villalobos, 196
 See Dallas Tyler, Chicago Police Department Extradition Unit, teletype of 12/15/03.
 See Dallas Tyler, Chicago Police Department Extradition Unit, teletype of 12/15/03.
 This initial period
could be extended for an additional 60 days.
 See Dallas Tyler, Chicago Police Department Extradition Unit, teletype of 12/15/03.
 See Dallas Tyler, Chicago Police Department Extradition Unit, teletype of 03/05/04.
 See Wisconsin Department of Health & Social Services, Division of Corrections, Prosecutor's Report on Disposition of Charges, Sept. 8, 2005.
 The record contains an
Investigation Report from Mary E. Taylor, dated 6-13-06, to Assistant State
Public Defender Richard D. Martin. The
 If the Chicago Police
Department maintained an Investigative Alert on Patrick Carter concerning the
June 9, 2002, robbery, as they did on Eric Minor,
 See 18 U.S.C. § 3585, which reads in part:
(b) Credit for prior custody.A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence. (Emphasis added.)
The last clause of (b) puts into statutory language the longstanding disapproval of dual credit in federal courts.
 See also:
1. Shaw v. Smith, 680 F.2d 1104 (5th Cir. 1982):
In sum, the Attorney General is ordinarily not required to give credit toward a federal sentence for time spent by a prisoner serving a sentence imposed by another jurisdiction for an unrelated offense.
law has, however, established one general exception to this basic rule. Time spent in state custody, even if for an
unrelated offense, must be credited toward time served on a federal sentence
"if the continued state confinement was exclusively the product of such
action by federal law-enforcement officials as to justify treating the state
jail as the practical equivalent of a federal one." Ballard v. Blackwell, 449 F.2d 868,
869 (5th Cir. 1971). "If, for
example, a state defendant is denied bail solely because of a federal detainer
issued against him, the time spent in state custody awaiting trial must be
credited to his federal sentence."
However, the evolved legal precedent also teaches that the credit against the federal sentence attaches only when the federal detainer is the exclusive reason for the prisoner's failure to obtain his release on bail.
. . . Since appellant's failure to obtain release on bond was not caused by the federal detainer, he is not entitled to a credit against his federal sentence.
 The sentence credit
rule explained in the special materials is not only the federal rule but also
the rule in most states. "[T]he
overwhelming majority of states allow for the granting of credit for time
served in presentence confinement while awaiting extradition when the sole
reason for the foreign incarceration is the offense for which the defendant
is ultimately convicted and sentenced."
Nieto v. State, 70 P.3d 747, 748 (
 Cf. Herman v.
Brewer, 193 N.W.2d 540
 On August 30, 2005,
Patrick Carter entered a guilty plea on the reckless endangerment charge. In a colloquy with Milwaukee County Circuit
Judge Mel Flanagan and others, Carter was asked how he had handled extradition. There is some ambiguity in the record about
whether Judge Flanagan was speaking of extradition in 2003 before Carter's
 Following Villalobos's
conviction for possession of a controlled substance, the Racine County
Circuit Court placed him on probation for 18 months and ordered him to serve 30
days in jail as a condition of probation.
State v. Villalobos, 196
 The cited statutory