State v. Tanya M. Liedke, 2020AP33-CR, Distirct 2, 12/29/21 (not recommended for publication); case activity (including briefs)

The circuit court correctly concluded that Liedke wasn’t in custody for sentence credit purposes while she was on GPS monitoring in connection with the case on which she was sentenced. But she’s entitled to some credit for other time when she was in custody, and the circuit court was wrong to deny her request on the grounds that it was DOC’s responsibility to address her request.

To start with Liedke’s time on GPS monitoring, the court of appeals agrees with the circuit court that Liedke was not in custody when she was on GPS monitoring while participating in drug court, which was a condition of her probation. (¶2). To be in custody for sentence credit purposes, a person has to be subject to an escape charge for leaving the status without authorization. State v. Magnuson,  2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536. Liedke would not have been subject to an escape charge for violating GPS rules while on probation (¶8), so she argues that applying Magnuson‘s bright-line rule to her violates her right to equal protection because some persons subject to GPS—e.g., persons on GPS as part of the community residential confinement or intensive sanctions program—are deemed to be in custody because the statutes make violating the GPS restrictions an escape, see §§ 301.046(6), 301.048(5). (¶¶9-10).

The court of appeals isn’t persuaded:

¶11     … [W]e are satisfied that the sentence credit statute, as interpreted by Magnuson, does not violate Liedke’s equal protection rights. While the statute with “in custody” defined as “subject to an escape” charge may indeed treat offenders subject to GPS monitoring differently, there is certainly a rational basis for the legislative classification. See [State v.] Chapman, 175 Wis. 2d [231,] 245 [, 499 N.W.2d 22 (Ct. App. 1993)] (applying rational basis review to an equal protection challenge involving sentence credit and holding that “any reasonable basis for the difference in treatment [of criminal offenders] will validate” the classification). Prisoners on intensive sanctions are subject to far more restrictive conditions than Liedke has demonstrated she was under, given that the intensive sanctions program has component phases that are intensive and highly structured and includes eighteen specific restrictions on liberty. … Treating those on ordinary probation differently for sentence credit purposes from those sentenced to or placed on intensive sanctions reflects the different purposes of probation and intensive sanctions. See Wis. Stat. § 301.048(1)(a) (explaining that intensive sanctions is less costly than physical imprisonment and more restrictive than standard probation or parole). Liedke does not identify other specific restrictions that she was subject to while on probation, much less show that these restrictions were like those associated with intensive sanctions.

As to the circuit court’s conclusion that Liedke needed to petition DOC to get credit on the imposed and stayed sentences (¶¶4-6), the state defends that conclusion based on § 973.155(5), which the state says requires a defendant to ask DOC for credit before it bothers the circuit court. Indeed, it claims, the circuit court lacks competency to deal with credit till the person has first petitioned DOC. (¶15). Not so, says the court—at least in this case:

¶16     …. Pursuant to the plain language of the statute, subsec. (5) is applicable where § 973.155 was not “applied at sentencing.” Sec. 973.155(5). Liedke argues that there was an error in the circuit court’s credit determination, not that the sentencing credit statute had not been applied to her case. She was granted sentence credit under § 973.155 at sentencing; thus, § 973.155(5) is inapplicable to Liedke. The award of sentence credit is a matter of equal protection and “is designed to afford fairness so that a person does not serve more time than that to which he or she is sentenced.” State v. Obriecht, 2015 WI 66, ¶23, 363 Wis. 2d 816, 867 N.W.2d 387. Accordingly, and as stated previously, “a court has the power to correct formal or clerical errors or an illegal or a void sentence at any time.” [State v.Crochiere, [2004 WI 78,] 273 Wis. 2d 57, ¶12[, 681 N.W.2d 524] (emphasis added; citation omitted). Liedke was not required to first petition DOC in this case.

This is a welcome rebuff of the state’s specious reading of § 973.155(5). Apart from the permissive “may petition” DOC rather than “shall petition,” disputes about credit often involve time DOC knows little or nothing about (for instance, pretrial credit or straight jail time in other contemporaneous cases), making a petition to DOC a waste of everyone’s time. And, as the court of appeals notes, to the extent the credit has to be included in the judgment of conviction for DOC to apply it to the sentence, the circuit court will necessarily have to be involved, for only the court can amend the judgment. (¶16 n.7, citing Wis. J.I.-Criminal SM-34A, section VI).

Note that the court’s reliance on the fact that credit was addressed at Liedke’s sentencing hearings might be taken to suggest that sub. (5) does require the defendant to DOC first in any case where credit was not addressed at all at sentencing. Cases where credit isn’t addressed at all should be rare, not to say nonexistent; but if sub. (5) is read to require the defendant in such a case to seek credit from DOC first, it means a pointless procedural detour on the road to the circuit court in every case where DOC doesn’t have all the information and the judgment needs amending.

Finally, the state concedes Liedke is entitled to some additional credit, but disputes the amount; thus, the court remands the case to the circuit court for a determination of what she is due. (¶17 & n.8).