State v. Zachary S. Friedlander, 2019 WI 22, 3/12/19, reversing an unpublished court of appeals decision; case activity (including briefs)
State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, laid down a bright-line rule for determining whether a person was in “custody” for purposes of earning sentence credit. The supreme court holds that rule is inconsistent with cases holding that an inmate who is mistakenly released from custody continues to serve his or her sentence, and so is entitled to credit for the time he or she was at liberty.
When Friedlander was released from prison he should have been remanded to the county jail to serve some conditional time on an unrelated offense for which he was placed on probation. But the prison didn’t notify the jail Friedlander was being released. And when Friedlander reported to his probation agent, the agent said nothing about reporting to jail to serve the condition time. The sheriff eventually figured out the mistake and, after a hearing before the sentencing judge, Friedlander started serving the time. The circuit court wouldn’t give him credit for the time he was out, believing Friedlander should have reported to jail or sought clarification from the court about his obligations. (¶¶4-12).
The court of appeals held Friedlander was entitled to the credit for the time he was out under State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (1989) and State v. Dentici, 2002 WI App 77, 251 Wis. 2d 436, 643 N.W.2d 180. In both those cases the defendant made himself available to serve his sentence but was turned away from the jail because of overcrowding, and in both the court of appeals held the defendant should get credit for the time he was “at liberty through no fault” of his own. The state petitioned for review in Friedlander’s case, asking the supreme court to overrule Riske and Dentici as inconsistent with Magnuson, and the supreme court now obliges.
Magnuson addressed the requirement in the credit statute, § 973.155(1)(a)(intro.), that a person must be in “custody” to earn sentence credit. It held that a person is in “custody” when leaving his or her status could result in a charge under the escape statute, § 946.42. Riske, which was decided before Magnuson and so didn’t address its holding, relied on the common-law (and common sense) idea that sentences are “continuous” unless interrupted by escape, violation of conditions of release, or some other fault of the prisoner. 152 Wis. 2d at 263-64. Dentici, decided after Magnuson, found no conflict between Riske‘s rule and Magnuson‘s bright-line “escape” charge requirement, as Magnuson didn’t limit the determination of “custody” to § 946.42, and in any event concluded that being turned away because of overcrowding and told to report again on another date certain is akin to temporary release from the institution for work, school, or “other purposes” and kept the person in constructive custody that might subject to he temporarily at-liberty offender to an escape charge. 251 Wis. 2d 436, ¶¶11-13.
The majority is unpersuaded:
¶42 …[W]e clarify and overrule Riske and Dentici in favor of our bright-line rule set forth in Magnuson. We disavow the Riske and Dentici adoption of a common-law rule to award sentence credit especially given the legislature’s enactment of a comprehensive statutory method to address sentence credit. When determining whether a defendant is “in custody” for the purposes of sentence credit under Wis. Stat. § 973.155, we look to whether the defendant is subject to an escape charge for leaving the defendant’s status. In determining whether an escape charge could lie, we generally turn to the escape statute, Wis. Stat. § 946.42. However, whether a defendant is subject to an escape charge for leaving his status may also be informed by other statutes which expressly provide for escape charges for violation of the statute, such as Wis. Stat. §§ 301.046 (“Community residential confinement.”), 301.048 (“Intensive sanctions program.”), and 302.425 (“Home detention programs.”). However, such statutes are relevant only for consideration for sentence credit purposes where a defendant is actually a participant in the programs governed by those statutes.10 Whether a defendant is at liberty through no fault of that defendant is irrelevant to a sentence
credit determination.
10 For example, Wis. Stat. § 301.046 creates a “[c]ommunity residential confinement” program, which provides that under the program, the DOC “shall confine prisoners in their places of residence or other places designated by the department.” [Wis. Stat.] § 301.046(1). Subsection (6), which is titled “Escape,” states, “Any intentional failure of a prisoner to remain within the extended limits of his or her confinement or to return within the time prescribed by the superintendent is considered an escape under s. 946.42(3)(a).” [Wis. Stat.] § 301.046(6). As Friedlander was not under any such statutorily-created program, much less one that provides for an escape charge if the terms of the program are violated, we need not consider any statute outside of Wis. Stat. § 946.42 in determining whether Friedlander would be subject to an escape charge during his time at liberty.
Since Friedlander wasn’t in “custody” and couldn’t be charged with escape, he’s not entitled to the credit for the time he was erroneously at liberty.
Friedlander’s appeal to the equitable principles animating Riske and Dentici is no more successful. “Courts … should be most hesitant to adopt judicially created remedies when the legislature, the primary policymaker, has statutorily addressed the topic…. Moreover, Friedlander offers little to explain how the sentence credit he seeks is anything but a windfall.” (¶44).
There are two dissenters. Justice Abrahamson believes Friedlander is entitled to credit under Magnuson because, although erroneously released instead of taken to the jail, he was still “subject to a confinement order under s. 973.09(4)” and therefore in “custody” and subject to an escape charge under § 946.42(1)(a)1.h.. (¶¶50-62). Justice A.W. Bradley would retain the equitable doctrine of credit for time erroneously spent at liberty. (¶¶63-92).
If the mistakenly released inmate isn’t in custody, then doesn’t it follow that the sentence must have been stayed? And isn’t is also true “that courts have no inherent power to stay execution of a sentence in a criminal case in the absence of statutory authority except for the limited purpose of affording relief against the sentence itself,” State v. Shumate, 107 Wis. 2d 460, 465. In other words, it’s a bit of a puzzle how Friedlander’s sentence could be granted a status — a stay — for which no authority exists. But if nothing else, the legislature could overturn this patently unfair result with a narrowly crafted fix. “The government is not permitted to play cat and mouse with the prisoner, delaying indefinitely the expiation of his debt to society and his reintegration into the free community. Punishment on the installment plan is forbidden.” (Dunne v. Keohane, 14 F.3d 335, cited by Friedlander but ignored by the majority). Codification of Dunne will solve the puzzle this case has now created.