June 24, 2009 – Jail credit earned in connection with one offense will not apply to other concurrent sentences imposed at the same time if each sentence arises from unrelated conduct, the Wisconsin Supreme Court clarified on June 23 in State v. Johnson, 2009 WI 57.

The justices explained that under Wis. Stat. § 973.155, credit given for completion of one sentence will only count toward another if the sentences arise from the same criminal acts or have some other factual connection.

The court was unpersuaded that failure to credit each sentence served concurrently results in uneven lengths of punishment, undercutting the meaning of “concurrent sentencing.”

Different arrests

Elandis Johnson was arrested August 2004 for possession of marijuana (less than 200 grams) with intent to deliver. After four days in custody, Johnson posted bail on that charge.

Having pled guilty but still free on bond awaiting sentencing, Johnson was arrested again in November 2004 for possession of marijuana (less than 200 grams) with intent to deliver. Johnson was released on a second cash bond.

Johnson pled guilty to the new drug charge in February 2005, and he was freed under the bond in anticipation of sentencing.

Following a third arrest in April 2005 for simple possession of marijuana (second offense), Johnson could not post bond. He remained in custody in the Milwaukee County Jail until his attorney eventually persuaded the court to reduce the bond in exchange for Johnson’s enrollment in a monitoring program. Johnson had a total of 50 days in custody.

Johnson was sentenced in all three cases in August 2005. At issue in his appeal were the one-year, concurrent sentences of confinement given for the first and third sets of charges. Johnson argued that the 50 days of credit applied in the 2005 case should also be credited in the first 2004 case.

‘In connection with’

The supreme court noted that section 973.155 (1) (a) requires credit for time in custody “in connection with the course of conduct for which sentence was imposed.” The purpose of the statute is to prevent a defendant from serving more time than a court authorizes.

Presentence custody’s “connection with” the conduct being punished must be factual, rather than procedural, the court explained. For example, a defendant arrested for bail jumping makes only a procedural, not factual, connection between that offense and the charge for which the defendant had posted bail, the court said.

In this case, the court said that the four days of presentence custody is indisputably connected to the conduct underlying the first 2004 case, just as the 50 days in custody arises from the conduct involved in the 2005 case. There is no factual overlap between the first 2004 case and the 2005 case, the court said.

Johnson’s argument

To make his argument, the court said Johnson was looking beyond the plain language of the statute to State v. Ward, 153 Wis. 2d 743 (Ct. App. 1989), and State v. Yanick, 2007 WI App 30.

In Ward, the defendant sought application of jail credit to all three of his concurrent sentences imposed for delivery of marijuana. Ruling for the defendant, the court of appeals said that giving credit for only one of the concurrent 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.”

The Ward court cited the Wisconsin Criminal Jury Instructions Committee (WCJIC), which stated, “When 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.”

But the supreme court said that a closer look at the facts of Ward actually demonstrates adherence to the statutory requirements.

The court noted that at the time Houston Ward was arrested in 1988 on cocaine charges, he was on probation for a 1984 conviction for three counts of delivering marijuana. When he was sentenced for the marijuana offenses, Ward’s term of imprisonment was set to run concurrently with that imposed for the cocaine crimes.

Ward succeeded in having his 233 days of credit applied to each concurrent sentence imposed in his marijuana case, but this had no practical effect on the amount of time he served in prison.

“Although Ward’s cocaine sentences and his marijuana sentences were equal in length, concurrent with each other, and imposed at nearly the same time, Ward’s 91 days of presentence custody from his 1984 marijuana arrest were effectively erased because, at the time Ward’s marijuana sentences were complete he still had 91 days remaining on his cocaine sentence,” the court wrote.

The Ward court took a wrong turn when it quoted just a portion from the WCJIC materials, the justices said. The supreme court acknowledged that the passage referenced by the Ward court “implicitly creates two distinct theories of sentence credit” with the use of “or.” But only one of them is grounded in the statute, the justices said.

The court put the WCJIC statement in context to show the committee intended no departure from the statute. The supreme court said an example accompanying “the unfortunate paragraph” illustrating the proper manner of awarding credit “fully satisfies the statutory requirement that a convicted offender be given credit ‘for all days spent in custody in connection with the course of conduct for which sentence was imposed.’”

“Properly interpreted, neither Ward nor the special materials [from the WCJIC] leads to the result sought by Johnson,” the justices concluded.