ARGUMENT: December 11, 2018
CIRCUIT COURT JEFFERSON COUNTY, DAVID WAMBACH JUDGE
OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis.2d
271, 915 N.W.2d 730 (2018 - unpublished)
the plaintiff-respondent-petitioner, there were briefs filed
by Jacob J. Wittwer, assistant attorney general, with whom on
the brief is Brad D. Schimel, attorney general. There was an
oral argument by Jacob J. Wittwer.
the defendant-appellant, there was a brief filed by Mark R.
Thompson, assistant state public defender, with whom on the
brief is Jeremy A. Newman, assistant state public defender.
There was an oral argument by Mark R. Thompson.
ANNETTE KINGSLAND ZIEGLER, J.
This is a review of an unpublished, per curiam decision of
the court of appeals, State v. Zachary S.
Friedlander, No. 2017AP1337-CR, unpublished slip op.
(Wis. Ct. App. Apr. 12, 2018) (per curiam), reversing the
Jefferson County circuit court's order. The circuit court
order denied Zachary S. Friedlander ("Friedlander")
sentence credit for time that he spent at liberty after being
mistakenly released from prison without being transferred,
pursuant to a detainer, to serve remaining conditional jail
time. The court of appeals remanded this case to
the circuit court with directions to amend Friedlander's
judgment of conviction to reflect the sentence credit that
Friedlander requested. We reverse the court of appeals.
This court is presented with two issues. First, we must
determine the meaning of "in custody" under
Wis.Stat. § 973.155 (2015-16). In doing so, we consider
whether the court of appeals' decisions in State v.
Riske, 152 Wis.2d 260, 448 N.W.2d 260');">448 N.W.2d 260 (Ct. App. 1989),
and State v. Dentici, 2002 WI.App. 77, 251 Wis.2d
436, 643 N.W.2d 180, are in harmony with this court's
decision in State v. Magnuson, 2000 WI 19, 233
Wis.2d 40, 606 N.W.2d 536');">606 N.W.2d 536. We conclude that for the purpose
of receiving sentence credit under § 973.155, a
defendant is "in custody" whenever the defendant is
subject to an escape charge under Wis.Stat. § 946.42, or
another statute which expressly provides for an escape
charge, as this court held in Magnuson. In doing so,
we overrule the court of appeals' decisions in
Riske and Dentici.
Second, we must determine whether Friedlander is entitled to
sentence credit for time he spent at liberty after being
mistakenly released from prison without being transferred to
serve his remaining conditional jail time. We conclude that
Friedlander is not entitled to sentence credit because
Friedlander, who was at liberty, could not have been subject
to conviction for escape under Wis.Stat. § 946.42. Thus,
we reverse the court of appeals.
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
On April 15, 2016, Friedlander pled no contest to one count
of felony bail jumping according to the terms of a plea
agreement. According to the plea agreement, the parties
jointly recommended a withheld sentence, instead placing him
on probation for three years, with Friedlander serving eight
months' jail time as a condition of his probation, to run
concurrent with Friedlander's then-existing prison
sentence.Consequently, most of the eight months of
conditional time would be served while he was in prison.
However, at the time of sentencing, a detainer was placed on
Friedlander so that if released from prison, he would be
transferred to jail to serve the remainder of his conditional
The same day that Friedlander pled no contest, the circuit
court adopted the parties' joint recommendation and
ordered that the conditional jail time would start
immediately and run concurrently with the prison sentence
Friedlander was already serving for the unrelated offense.
The circuit court specified on the record that once
Friedlander's prison sentence had been completed, he
would still be required to serve the remainder of his
conditional jail time. Additionally, the circuit court noted
that because the jail time was a condition of probation, it
was not a sentence. As a result, the circuit court stated
that there was a question as to where the Department of
Corrections ("DOC") would have Friedlander serve
the remainder of his conditional jail time.
On September 27, 2016, Friedlander finished serving his
prison sentence on the unrelated drug offense but still had
75 days of his conditional time to serve on the offense now
before this court. However, instead of being transported
according to the detainer to serve his remaining conditional
time in jail, he was mistakenly released by the authorities
from the Oshkosh Correctional Institution. Officials at the
Oshkosh Correctional Institution failed to notify the
Jefferson County jail of Friedlander's release and did
not arrange to transfer Friedlander to the Jefferson County
Friedlander met with his probation agent immediately after
being released. The probation agent did not tell Friedlander
that he needed to report to jail. Friedlander met with his
probation agent again and was not told anything about
reporting to jail. Friedlander's probation agent did not
contact the circuit court to request clarification regarding
his conditional jail time.
On November 11, 2016, the Jefferson County sheriff's
office learned from the county's child support agency
that Friedlander had been released from prison. That same day
the sheriff's office contacted Friedlander's
probation agent. Friedlander's probation agent then spoke
with Friedlander, telling him to contact Captain Duane Scott
("Captain Scott") in the sheriff's office.
Friedlander did so and reported to Captain Scott that a
social worker at the Oshkosh Correctional Institution had
told him his conditional jail time was completed prior to his
release from prison. Captain Scott then contacted a DOC staff
member who said that Friedlander's probation agent should
have taken him to the Jefferson County jail on September 27,
2016. On November 23, 2016, Captain Scott wrote the circuit
court summarizing these recent events and asking the circuit
court whether Friedlander should report to serve his
conditional time and, if so, what should be done regarding
the days he was not in jail.
On December 1, 2016, the circuit court held a hearing to
determine how to proceed regarding Friedlander's unserved
portion of his conditional jail time. The circuit court found
that Friedlander had served 165 days of the eight months, or
240 days, of conditional jail time. The circuit court
determined that Friedlander had 75 days of conditional jail
time remaining that he needed to serve. The circuit court
then considered whether Friedlander was entitled to sentence
credit for the 65 days that elapsed between Friedlander's
release on September 27, 2016, and the date of the hearing.
If granted sentence credit for all 65 days between September
27, 2016, and December 1, 2016, Friedlander would have only
10 days of conditional jail time remaining under the terms of
Friedlander argued that he should be entitled to sentence
credit for the 65 days he was not in jail following his
release from the Oshkosh Correctional Institution. Citing
Riske and Dentici, Friedlander claimed that
he should receive a 65-day sentence credit because he was at
liberty through no fault of his own, leaving 10 days
remaining on Friedlander's conditional jail term. The
State made no argument regarding Friedlander's claim for
a 65-day sentence credit.
After hearing testimony from a deputy at the Jefferson County
jail and Friedlander, the circuit court concluded that
Friedlander was not entitled to a 65-day sentence credit for
the time he was not in jail following his release from prison
on September 27, 2016. The circuit court distinguished
Riske and Dentici, stating that in those
cases the defendants reported to jail and were turned away
due to overcrowding. The circuit court concluded that
Friedlander should have reported to jail like the defendants
in Riske and Dentici, or at least sought
clarification from the circuit court. Since Friedlander did
neither the circuit court concluded that under Riske
and Dentici Friedlander was not entitled to sentence
credit for any of the time he was not in jail following his
release from prison. The circuit court did not reference
Magnuson in its decision.
As a result, the circuit court ordered Friedlander to begin
serving the remainder of his conditional jail time. On
December 9, 2016, Friedlander filed a motion for stay of his
confinement pending appellate review of the circuit
court's sentence credit determination. On December 12,
2016, the circuit court denied Friedlander's motion to
stay. Friedlander then filed a petition for leave to appeal,
which the court of appeals denied on January 10, 2017.
On July 6, 2017, Friedlander filed a notice of appeal. Though
he conceded that defendants normally must be "in
custody" to receive sentence credit under Wis.Stat.
§ 973.155, he argued that under Riske and
Dentici, time spent at liberty satisfies the
"in custody" requirement because Friedlander was
released from custody due to an administrative error and thus
through no fault of his own. The State argued that
Friedlander was not "in custody" under §
973.155 and pursuant to this court's decision in
Magnuson. The State further asserted that
Riske and Dentici did not apply.
Alternatively, the State argued that Friedlander was not, in
fact, at liberty through no fault of his own, as Friedlander
knew he had time to serve but did not report to jail nor seek
clarification regarding his conditional jail time.
On April 12, 2018, the court of appeals issued an
unpublished, per curiam opinion. Friedlander, No.
2017AP1337-CR. The court of appeals agreed with Friedlander
and reversed the circuit court, remanding the matter with
directions to amend Friedlander's judgment of conviction
to reflect an additional 65 days of sentence credit in the
event Friedlander's probation was revoked and his
sentence was imposed. Id., ¶1. The court of
appeals relied on Riske and Dentici, not
Magnuson, and reasoned that "Friedlander was at
liberty between the date that he was released from prison and
the date he was remanded to jail, not through any fault of
his own but through the fault of government officials."
Id., ¶19. Therefore, the court of appeals
concluded that Friedlander was entitled to 65 days of
sentence credit. Id.
Addressing the State's arguments, the court of appeals
first rejected the State's attempts to distinguish
Riske and Dentici, holding that it would be
unfair to Friedlander to require him to serve the 65 days
since he was at liberty due to the government's mistake.
Id., ¶¶21-24. Second, the court of appeals
asserted that the State selectively quoted Magnuson
to suggest that the escape statute, Wis.Stat. §
946.42(1)(a), is the exclusive means to determine whether a
defendant is in custody. Id., ¶¶25-26. The
court of appeals also distinguished Magnuson because
there was no fault-related issue raised in Magnuson.
Id., ¶27. Thus, the court of appeals relied on
its decisions in Riske and Dentici,
resolving that they existed in harmony with
Magnuson, to conclude that Friedlander was entitled
to 65 days of sentence credit. See id.,
On May 14, 2018, the State filed a petition for review in
this court. On July 10, 2018, we granted the petition.
STANDARD OF REVIEW
This case requires the interpretation of the sentence credit
statute, Wis.Stat. § 973.155, to determine the meaning
of "in custody" for sentence credit purposes.
"The interpretation and application of a statute
presents questions of law that this court reviews de novo
while benefitting from the analyses of the court of appeals
and circuit court." State v. Alger, 2015 WI 3,
¶21, 360 Wis.2d 193, 858 N.W.2d 346 (citing State v.
Ziegler, 2012 WI 73, ¶37, 342 Wis.2d 256, 816
N.W.2d 238). Therefore, because there are no disputed facts
in this case, we review de novo when a defendant is "in
custody" within the context of a sentence credit
"[S]tare decisis concerns are paramount where a court
has authoritatively interpreted a statute because the
legislature remains free to alter its construction."
Progressive N. Ins. Co. v. Romanshek, 2005 WI 67,
¶45, 281 Wis.2d 300, 697 N.W.2d 417 (citing Hilton
v. S.C. Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991)).
"When a party asks this court to overturn a prior
interpretation of a statute, it is his 'burden . . . to
show not only that [the decision] was mistaken but also that
it was objectively wrong, so that the court has a compelling
reason to overrule it.'" Id.
Wisconsin's statutes reflect the legislature's policy
determination with respect to sentence credit determinations.
As a result, we begin our analysis with the language of the
relevant statute, Wis.Stat. § 973.155. See State ex
rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶45, 271 Wis.2d 633, 681 N.W.2d 110. "[T]he purpose
of statutory interpretation is to determine what the statute
means so that it may be given its full, proper, and intended
effect." Id., ¶44. If the meaning of the
statute is plain, we ordinarily stop the inquiry and give the
language its "common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases
are given their technical or special definitional
meaning." Id., ¶45.
Context and structure of a statute are important to the
meaning of the statute. Id., ¶46.
"Therefore, statutory language is interpreted in the
context in which it is used; not in isolation but as part of
a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or
unreasonable results." Id. Moreover, the
"[s]tatutory language is read where possible to give
reasonable effect to every word, in order to avoid
surplusage." Id. "A statute's purpose
or scope may be readily apparent from its plain language or
its relationship to surrounding or closely-related
statutes--that is, from its context or the structure of the
statute as a coherent whole." Id., ¶49.
"If this process of analysis yields a plain, clear
statutory meaning, then there is no ambiguity, and the
statute is applied according to this ascertainment of its
meaning." Id., ¶46. If statutory language
is unambiguous, we do not need to consult extrinsic sources
of interpretation. Id. "Statutory
interpretation involves the ascertainment of meaning, not a
search for ambiguity." Id., ¶47.
As this court discussed in Magnuson, Wis.Stat.
§ 973.155 governs when a defendant is entitled to
receive sentence credit. Magnuson, 233 Wis.2d 40,
¶12. Under Wis.Stat. § 973.155, "[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."
§ 973.155(1)(a). The statute defines "days spent in
custody" as "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."
Id. Additionally, under § 973.155(1)(a),
confinement occurs: (1) "[w]hile the offender is
awaiting trial"; (2) "[w]hile the offender is being
tried"; and (3) "[w]hile the offender is awaiting
imposition of sentence after trial." §
973.155(1)(a)1.-3. Under § 973.155(1)(b),
[t]he 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 . . . placed upon
the person for the same course of conduct as that resulting
in the new conviction.
Thus the plain meaning of Wis.Stat. § 973.155 reflects
the legislative determination that for sentence credit to be
awarded: (1) the defendant must show that the defendant was
"in custody"; and (2) the defendant must show that
"the custody 'was in connection with the course of
conduct for which the sentence was imposed.'"
Wis.Stat. § 973.155(1)(a); see also State v.
Johnson, 2007 WI 107, ¶31, 304 Wis.2d 318, 735
N.W.2d 505 (quoting State v. Gavigan, 122 Wis.2d
389, 391, 362 N.W.2d 162 (Ct. App. 1984)). Notably, the term
"in custody" is not defined anywhere in the
statutes. The parties dispute only whether Friedlander was
actually "in custody" for the purposes of the
sentence credit between September 27, 2016, and December 1,
2016. They do not debate whether, if Friedlander was "in
custody," it was in connection with the course of
conduct for which any sentence was imposed. We therefore turn
to our prior case law to determine the meaning of "in
custody" for sentence credit purposes. If Friedlander
was not "in custody" he is not statutorily due
Riske, Magnuson, and Dentici
While the parties agree that Wis.Stat. § 973.155
controls, they disagree as to when a defendant is "in
custody" such that the defendant should receive sentence
credit. The State argues that this court's holding in
Magnuson should control, meaning that a defendant is
"in custody" for sentence credit purposes whenever
the defendant would be subject to an escape charge. The State
thus urges this court to overrule the court of appeals'
decisions in Riske and Dentici. Friedlander
claims that Riske, Dentici, and
Magnuson all coexist harmoniously such that
Riske and Dentici should not be overruled.
Accordingly, Friedlander claims that a defendant is entitled
to sentence credit because the defendant "could have
been charged with escape had they intentionally escaped from
their time spent at liberty from a court's confinement
order through no fault of their own." We agree with the
State, and in the interest of providing clarity, overrule
Riske, decided before, and Dentici, decided
In Riske, the court of appeals concluded that the
defendant was entitled to sentence credit without even
considering the sentence credit statute. There, the defendant
was sentenced on April 6, 1987, to one year in jail after
pleading no contest to sexual intercourse with a minor.
Riske, 152 Wis.2d at 262. The defendant surrendered
to the county jail the same day he was sentenced, but the
jailer told the defendant that the jail was full.
Id. Therefore, the jailer told the defendant to
return on May 1, 1987. Id. The defendant failed to
report back to the county jail on May 1, 1987, and remained
at large until April 14, 1988, when the circuit court issued
an execution for the defendant's arrest. Id.
While the defendant remained at large, he lived and worked in
the community, and made no attempt to hide. Id.
Following his arrest in 1988, the circuit court concluded
that the defendant would have begun serving his sentence on
May 1, 1987, but that the defendant did not begin serving his
sentence on that date of his own doing. Id.
Therefore, the circuit court held that the defendant was not
entitled to sentence credit for the time he was not in jail
on and after May 1, 1987. See id.
The defendant appealed, claiming that his one-year sentence
had completely run at the time of his 1988 arrest and that he
should therefore be entitled to sentence credit. Id.
at 263. The State conceded that the defendant should be given
sentence credit for the time he was out of jail between April
6 and May 1, 1987, as the defendant reported to the jail and
was turned away because the jail was full. Id.
However, the State argued that the defendant
"escaped" by failing to return to the county jail
on May 1, 1987. Id. at 265. Citing Wis.Stat. §
973.15(7) (1987-88), the State asserted that the defendant
was not entitled to sentence credit for any time the
defendant was at large on or after May 1, 1987. Id.
The court of appeals reversed the circuit court in part and
remanded with directions to give the defendant sentence
credit for the time he was at large between April 6 and May
1, 1987. Id. Relying on a decision issued by the
United States Court of Appeals for the Tenth Circuit nearly
60 years prior, the court of appeals reasoned that
"[s]entences are continuous" in nature, unless they
are "interrupted by escape, violation of parole, or some
fault of the prisoner." Id. at 264. The court
of appeals then stated, "'[W]here a prisoner is
discharged from a penal institution, without any contributing
fault on his part, and without violation of conditions of
parole, . . . his sentence continues to run while he is at
liberty.'" Id. (quoting White v.
Pearlman, 42 F.2d 788, 789 (10th Cir. 1930)). As
additional support, the court of appeals noted a decision
issued by this court in 1884, along with an Attorney General
Opinion issued in 1925. Id. at 264-65 (citing In
re Crow: Habeas Corpus, 60 Wis. 349, 370, 19 N.W. 713
(1884); 14 Op. Att'y Gen. 512 (1925)). The court
of appeals then refused to determine whether the defendant
"escaped," instead relying on what it described as
the "broader principle" codified by Wis.Stat.
§ 973.15(7): "that a person's sentence for a
crime will be credited for the time he was at liberty through
no fault of the person." Riske, 152 Wis.2d at
265. At no point did the court of appeals reference or
discuss Wis.Stat. § 973.155.
This court was thereafter faced with a sentence credit issue
in Magnuson. There, the defendant was charged with
eight counts of securities fraud. Magnuson, 233
Wis.2d 40, ¶2. The circuit court set bail at $12, 000
per count for a total of $96, 000. Id. The defendant
was unable to post bail and remained in jail. Id. As
trial preparation ensued, the defendant moved for bail
modification and reduction. Id., ¶3. The
circuit court granted the motion and modified bail to a $10,
000 signature bond, requiring that others co-sign the bond.
Id., ¶4. As part of the bond, the circuit court
required the defendant to reside with one of the co-signers
of the bond. Id. Additionally, the circuit court
imposed a nightly curfew on the defendant, confining the
defendant to his chosen co-signer's residence between
7:00 p.m. and 7:00 a.m. Id., ¶5. The circuit
court subsequently modified the bond to slightly reduce the
daily period of confinement to allow the defendant to
participate in substance abuse counseling and attend church
activities. Id. The defendant was formally
supervised by a bail monitoring program and was forced to
wear an electronic monitoring bracelet. Id.,
¶6. Further, the defendant had to contact bail
monitoring authorities each morning, submit to urine testing,
and have weekly face-to-face contact with authorities.
The defendant was released on bond on June 12, 1996, and
later pled no contest to three counts of securities fraud.
Id., ¶8. The defendant remained under his
chosen co-signer's care until December 11, 1996, when his
co-signer reported to authorities that he disapproved of the
defendant's conduct. Id. The defendant was
returned to jail the following day. Id.
The circuit court sentenced the defendant to eight years of
imprisonment followed by seven years of probation and granted
229 days of sentence credit for time the defendant spent in
jail. Id., ¶9. The defendant then filed a
postconviction motion seeking sentence credit for the 183
days he stayed with his bond co-signer as a condition of his
bond. Id. The circuit court denied the
defendant's motion, concluding that his detention at his