By Deborah G. Spanic, legal writer
Feb. 19, 2010 – The court of appeals, in the recent decision State v. Brown, No. 2009AP896-CR (WI App. Feb. 10, 2010), has reversed the Kenosha County circuit court for denying 285 days of sentence credit due an offender on parole hold in Illinois and confined in Wisconsin.
Eliseo Brown was brought on criminal charges in Wisconsin at the same time he was on a parole hold in Illinois. However, he could not post bail, so was confined for 285 days in a Kenosha County jail before sentencing. In April 2008 Brown was sentenced to two years of confinement to be served “[c]onsecutive to any previously imposed sentence,” and the trial court refused to grant any sentence credit for the 285 days of presentence confinement. The court’s reasoning was that he might end up getting “double credit” from Illinois, and he did not have any documentation from Illinois to prove otherwise.
On appeal was whether Brown should be granted the sentence credit in Wisconsin, when no one “knows what, if anything, Illinois will do with Brown’s parole hold.” See Id., ¶ 4. In Wisconsin, sentence credit is required under Wis. Stat. § 973.155(1) (2007-08), and includes time served during presentencing and custody for a parole hold. The state’s hypothetical “double credit” could occur if, after Wisconsin granted credit, Illinois were to revoke Brown’s parole, reconfine him, and then grant him credit for the same 285 days he spent in the Kenosha jail against his Illinois sentence.
The court of appeals found the state’s reasoning problematic for a number of reasons, including the concern that in the future, a convicted offender would have to prove something that Wisconsin law has never before required: that he or she will not be granted sentence credit anywhere else. To that end, the court of appeals noted that, “requiring proof of a negative has been criticized in the past because it requires speculation and imposes an impossible burden.” See Id., ¶ 7.
Another concern of the court was that Brown could never receive credit for those 285 days. They noted that while Illinois does have a parole hold on Brown, it would not lead to reconfinement unless Illinois decided to revoke Brown’s parole, hold a hearing and then reconfine him.
Finally, the court determined that even if Illinois did revoke Brown’s parole and reconfine him, it would likely act appropriately because its interest, like Wisconsin’s, is also in making sure convicted offenders do not receive double credit when sentences are consecutive.
In the end, the court of appeals concluded that the issue of double credit was not ripe and may not ever be ripe, as it would only be an issue if and when Illinois revoked Brown’s parole, and then it would be an issue for Illinois to resolve, not the Wisconsin court. Brown was due the credit earned in Wisconsin, as to find otherwise may have resulted in Brown receiving no credit anywhere, which, as the court aptly stated, “is not fair.” As a result, the court reversed and remanded for further proceedings not inconsistent with its opinion.
