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State v. Friedlander

Supreme Court of Wisconsin

March 12, 2019

State of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Zachary S. Friedlander, Defendant-Appellant.

          ORAL ARGUMENT: December 11, 2018

          CIRCUIT COURT JEFFERSON COUNTY, DAVID WAMBACH JUDGE

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis.2d 271, 915 N.W.2d 730 (2018 - unpublished)

          For 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.

          For 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.

         ¶1 This is a review of an unpublished, per curiam decision of the court of appeals, State v. Zachary S. Friedlander, No. 2017AP1337-CR, unpublished slip op.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.[1] 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.

         ¶2 This court is presented with two issues. First, we must determine the meaning of "in custody" under Wis.Stat. § 973.155 (2015-16).[2] 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.

         ¶3 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.

         I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

         ¶4 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.[3]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[4] was placed on Friedlander so that if released from prison, he would be transferred to jail to serve the remainder of his conditional time.

         ¶5 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.

         ¶6 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 jail.

         ¶7 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.

         ¶8 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.

         ¶9 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 his probation.

         ¶10 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.

         ¶11 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.

         ¶12 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.

         ¶13 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.

         ¶14 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.

         ¶15 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., ¶¶26-28.

         ¶16 On May 14, 2018, the State filed a petition for review in this court. On July 10, 2018, we granted the petition.

         II. STANDARD OF REVIEW

         ¶17 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 determination.

         ¶18 "[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.

         III. ANALYSIS

         A. Statutory Interpretation

         ¶19 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.

         ¶20 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.

         ¶21 "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.

         ¶22 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.

         ¶23 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 sentence credit.

         B. Riske, Magnuson, and Dentici

         ¶24 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 after, Magnuson.

         1. Riske

         ¶25 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.

         ¶26 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.

         ¶27 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.[5] 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.[6] Id.

         ¶28 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.

         2. Magnuson

         ¶29 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. Id., ¶7.

         ¶30 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.

         ¶31 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 ...


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