July 1, 2011 – A recent Wisconsin Supreme Court decision adds a layer of consideration for criminal defense attorneys filing motions to withdraw plea agreements on a client’s behalf.
In State v. Lamar, 2011 WI 50 (June 29, 2011), the supreme court ruled (5-2) that defendant Charles Lamar was not entitled to postsentence credit for time served on concurrent sentences where one sentence was later vacated and reimposed consecutively to the other.
In a dissenting opinion, Chief Justice Shirley Abrahamson (joined by Justice Ann Walsh Bradley) argued that the majority “allows a defendant’s confinement for the vacated sentence to be recast as ‘presentence time’ … a fiction that misrepresents the reason Lamar was in prison.”
To fully understand the sentencing situations in which this “narrow holding” may apply in the future, a description of the timeline of events is useful:
March 23, 2006: Lamar is arrested and jailed for allegedly beating his girlfriend and previously jumping bail on two occasions. He spends 177 days in jail prior to sentencing.
Sept. 15, 2006: After entering a plea agreement, the circuit court sentences Lamar to serve a concurrent term of 17 years (12 in prison) for aggravated battery as a habitual offender and two years (one in prison) for misdemeanor bail jumping. He gets 177 days presentence credit. A second count of bail jumping was dismissed under the plea agreement.
March 23, 2007: Lamar completes the one-year confinement term for bail jumping, but remains in custody on the aggravated battery sentence imposed concurrently. 189 days pass between the Sept. 15 sentencing date and March 23, the date his bail jumping prison term ended.
August 29, 2007: Asserting error at sentencing, Lamar successfully moves the court to withdraw his plea agreement as to the aggravated battery charge. With the plea agreement now vacated on that charge, the state reinstates the second count of bail jumping (dismissed in first plea agreement). Lamar remains in custody pending a new plea agreement.
Jan. 3, 2008: The circuit court reimposes a sentence for aggravated battery, this time for 15 years (10 years in prison). The court also imposes a nine-month prison term on the the second bail jumping count (dismissed in first plea agreement), to be served concurrently but consecutive to any other sentence.
Upon a postconviction motion for additional sentence credit, the circuit and appeals courts refused to grant Lamar 189 days of credit for time served between Sept. 15, the date of the first sentencing, and March 23, the date on which the concurrent sentence for bail jumping ended.
Not entitled to credit
Lamar argued that since he already served a portion of his concurrent sentence for aggravated battery between Sept. 15 and March 23 (189 days) before the sentence was vacated, credit should apply towards the subsequent sentence reimposed for aggravated battery.
But the supreme court majority disagreed, holding that “an offender is not entitled to additional sentence credit pursuant to [Wis. Stat. section 973.04] when (1) the vacated sentence was originally imposed concurrent to a separate sentence, (2) the separate sentence is not vacated, (3) the vacated sentence is reimposed consecutively to the non-vacated sentence, and (4) the time that the defendant requested was served in satisfaction of the sentence that was not vacated.”
Lamar asserted that Wis. Stat. section 973.04 controls exclusively. That provision states that “[w]hen a sentence is vacated and a new sentence is imposed upon the defendant for the same crime, the department shall credit the defendant with confinement previously served.”
But the majority concluded that section 973.155, which requires a court to give sentence credit to offenders “while awaiting imposition of a sentence,” also applied, and State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), interpreted section 973.155 “as prohibiting dual credit on consecutive sentences.” The circuit court imposed a consecutive sentence, the majority noted.
“Lamar is not entitled to receive the 189 days of credit he is seeking because the sentences imposed on January 3, 2008, were ordered by the circuit court to be consecutive to the sentence previously imposed for misdemeanor bail jumping as a habitual offender,” Justice Gableman wrote for the majority.
The majority rejected Lamar’s claim that disallowing sentence credit violated his constitutional right to be free from multiple punishments for the same offense, a double jeopardy argument.
The two dissenting justices, Chief Justice Abrahamson and Justice Bradley, argued that only section 973.04 applies to the disputed 189 days, and Lamar was entitled to sentence credit.
“The problem with the [majority’s] approach is that the 189 days in question were not days Lamar spent in custody awaiting for his new sentence [for aggravated battery],” wrote Chief Justice Abrahamson. “Those 189 days were spent serving time for [aggravated battery] concurrently with serving time for [bail jumping]. The majority’s recasting of the time Lamar served under a vacated sentence as ‘presentence time’ is a fiction that misrepresents the reason Lamar was in prison.”
In other words, the dissent asserted that when a concurrent sentence for multiple charges is imposed, the defendant should get sentence credit although one sentence is vacated and later reimposed.
Assistant State Public Defender Donna Hintze represented Charles Lamar. Assistant Attorney General Eileen Pray represented the state.