State v. Orbin B. Harris, 2011 WI App 130 (recommended for publication); for Harris: Matthew S. Pinix; case activity
Good-time credit may not be earned on a jail sentence for a violent offense being served in prison:
¶1 Orbin B. Harris appeals the judgment convicting him of battery and intimidation and the order denying his postconviction motion. Harris, who was sentenced to ten months in the house of correction for the battery and to seven years in state prison for the intimidation, argues that pursuant to Wis. Stat. §§ 973.155 & 302.43 (2009-10),[2] he is entitled to “good time” credit for his house of correction sentence, which should be applied to his prison sentence. We disagree. We hold that § 302.43, the “good time” statute governing county jail sentences,[3] does not apply in this case because both of Harris’s sentences are to be construed as one continuous prison sentence. See Wis. Stat. § 302.113(4). Thus, Harris’s sentences fall under the purview of Wis. Stat. § 973.01 and Harris is consequently prohibited from earning sentence credit for his convictions because they are violent offenses. See Wis. Stat. § 302.113(1) & (2)(b)7.; see also Wis. Stat. § 301.048(2)(bm)1. We further conclude that Harris is not entitled to “good time” under §§ 973.155 & 302.43 because, under Wis. Stat.§ 973.03(2), Harris is serving his sentences as a state prison inmate, not as a county jail inmate. We therefore affirm.
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¶10 We therefore hold that because the trial court was required to construe Harris’s sentences as a single sentence, which put the sentences under the purview of Wis. Stat. § 973.01—and because Harris was, under the terms of the statutes, an inmate of the prison system rather than the county jail—that Wis. Stat. § 302.43, the county jail “good time” statute, does not apply to his sentence. Rather, we hold that Wis. Stat. §§ 302.113(1), (2)(b)7. & (4); 301.048(2)(bm)1.; and 973.03(2) prohibited Harris from earning any credit on his sentence for violent offenses. Moreover, we do not agree with Harris’s contention that our holding would render the specific language of Wis. Stat. § 973.155(3) meaningless. The language Harris highlights, which provides that sentence credit “shall be computed as if the convicted offender had served such time in the institution to which he or she has been sentenced,” see id. (emphasis added), still has effect in the myriad of other cases where a defendant is not sentenced to both the house of correction and prison. Therefore, we affirm.
And if the inmate isn’t serving a “violent” offense (as defined by § 301.048(2)(bm)1, see ¶8)? Then, perhaps, good time may be awarded on the jailable offense – otherwise, why would the court stress “violent offense” as a disqualifier?
Perplexing: § 973.01(1) requires a bifurcated sentence on a misdemeanor served in prison: “whenever a court sentences a person to imprisonment for … a misdemeanor committed on or after February 1, 2003, the court shall impose a bifurcated sentence under this section.” Harris’s misdemeanor sentence wasn’t bifurcated, even though the court here holds that it is “to be construed as [part of] one continuous prison sentence.” The dilemma is that for credit purposes the sentence is construed as being served in prison, but construed for purposes of bifurcation as being served in jail. If this tension is intolerable, then Harris’s misdemeanor sentence must be bifurcated, and because it wasn’t, he should be resentenced so that it can be. The result wouldn’t give him any additional sentence credit, but it would reduce his confinement time. To be sure, the trial court ordered Harris “to serve 10 months in the House of Correction” (CCAP entry, 4/10/09), but the court of appeals itself gives that order short shrift. Instead, the court rejects the idea that it “consider his sentences separately, rather than as one, continuous sentence,” ¶8. Indeed, the court’s own rationale explicitly places Harris’s sentence within § 973.01: “As noted, construing the sentences as one continuous sentence puts them squarely under the purview of Wis. Stat. § 973.01, which in turn means that no good time credit can be awarded because both offenses are ‘violent,’” ¶9. It is true that the confinement portion must be at least one year, § 973.01(2)(b), an obvious impossibility with an unenhanced misdemeanor; that would be the argument against birfurcating Harris’s misdemeanor sentence. But the obstacle might be overcome by the court’s construction of the two sentences (the felony and the misdemeanor) as merely one continuous sentence. In other words, the obstacle isn’t insurmountable. Placing Harris’s sentence under purview of § 973.01 may mean disentitlement to good time, but it also at least arguably triggers the birfurcation requirement – if someone raises the issue.
