from a judgment and an order of the circuit court for
Walworth County No. 2013CF397: DAVID M. REDDY, Judge.
Judgment modified and, as modified, affirmed; order reversed
and cause remanded with directions.
Reilly, P.J., Gundrum and Hagedorn, JJ.
Antonio Johnson challenges his judgment of conviction and the
circuit court's order denying his motion for
postconviction relief. He contends the court erred in
rejecting his request for an additional three days of
sentence credit. In light of Wisconsin Supreme Court
precedent, we must agree.
The parties agree that this case is controlled by the
language of WIS. STAT. § 973.l55(1)(a) (2015-16),
which states in relevant part that a defendant "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." Johnson asserts
that the phrase "all days spent in custody" is
ambiguous and thus we should apply the rule of lenity which
would result in our adoption of his reading of this
provision-that "any part of a calendar day spent in
custody equals one day for sentence credit purposes."
The State's position is that a "day spent in
custody" means a continuous twenty-four-hour period in
which a person is in custody. Johnson's position on the
issue would result in a total of thirty-three days of
sentence credit for him; the State's position results in
the thirty days the circuit court granted him.
As relevant to this case, Johnson was in custody from his
arrest on drug-dealing charges at 7:30 a.m. on August 19,
2013, until his release on bond at 3:25 p.m. on August 20,
2013. He was again taken into custody on drug-dealing charges
on September 16, 2013, and released less than an hour later.
At 6:11 p.m. on September 26, 2013, Johnson was once again
taken into custody, on allegations he violated his bond by
dealing drugs, and he remained in custody until he posted
bond and was released at 6:04 p.m. on October 25, 2013.
Johnson eventually pled to two drug-dealing charges. At
sentencing, he requested thirty-three days of credit for the
above-identified periods of custody, but the circuit court
granted him only thirty days, based upon "August 19th,
August 20th, one day. September 26th to October 25th, 29
days." Johnson moved for postconviction relief, seeking
inter alia the additional three days of sentence credit he
had sought at sentencing. The circuit court denied the
request, stating, "The policy of the court is that the
time served would have to be more than 12 hours in order to
get credit for a day ... [a]nd I am not talking cumulative,
either; I am talking about at one time."
The correct application of Wis. STAT. § 973. l55(1)(a)
is a matter of law we review de novo. State v.
Obriecht, 2015 WI 66, ¶21, 363 Wis.2d 816, 867
N.W.2d 387. Normally we would engage in more extensive
discussion of the correct interpretation and application of
this sentence credit statute; however, such discussion is
unnecessary in this case, because our supreme court has
already demonstrated its agreement with Johnson's reading
of the provision.
In State v. Carter, 2010 WI 77, ¶57 n.39, 327
Wis.2d 1, 785 N.W.2d 516');">785 N.W.2d 516, the defendant was arrested at 12:45
p.m. on December 13, 2003, and remained in custody until he
appeared in court on December 15, 2003. The court
specifically addressed the defendant's entitlement to
sentence credit for this time period and accepted as correct
the State and defendant's joint calculation that three
days was the appropriate amount of credit. Id.,
¶¶5, 25. Granting three days of credit, the court
indicated that it considered December 13, 14, and 15 as
"days" when the defendant "was actually in
custody in connection with the conduct for which he was
sentenced." Id., ¶79 n.69. Of particular
relevance to the case now before us, we observe that the
defendant in Carter was only in custody for eleven
hours and fifteen minutes on December 13, less than the
twelve hours the circuit court in the case now before us
requires in order to credit a defendant with a sentence
In State v. Johnson, 2009 WI 57, ¶5, 318 Wis.2d
21, 767 N.W.2d 207, the defendant was arrested on August 10,
2004, and released from jail on August 13, 2004, after
posting cash bond. Our supreme court considered this to be
four days for sentence credit purposes. Id.,
¶¶28, 48. And in Obriecht, the court
counted the period from when the defendant was arrested and
charged, February 2, 1998, to when he was released on bond,
October 16, 1998, as 257 days of custody for sentence credit
purposes. Obriecht, 363 Wis.2d 816, ¶¶7,
10, 28. In doing so, the court necessarily counted
the day on which the defendant was arrested and the day on
which he was released each as a "day" for sentence
The facts of the case now before us provide us with no
discernable, substantive basis for distinguishing this case
from Carter, Johnson, and Obriecht as
relevant to the sentence credit consideration. As a result,
we are compelled to apply WIS. STAT. § 973.l55(1)(a) in
the same manner as our supreme court. See Cook v.
Cook, 208 Wis.2d 166, 189, 560 N.W.2d 246 (1997). Doing
so, we conclude Johnson is entitled to a day of sentence
credit for each calendar day during which he spent at least
part of the day in custody. That means one day for August 19,
2013, one day for August 20, 2013, one day for September 16,
2013, and thirty days for the time period between and
including September 26, 2013, and October 25, 2013-all
totaling thirty-three days.
We modify the judgment and the judgment, as modified, is
affirmed. We reverse the order of the circuit court and
remand this matter to the court. On remand, an amended
judgment of conviction shall be entered granting Johnson a
total of thirty-three days of sentence credit.
modified and, as modified, affirmed; order reversed and cause