State v. Montrell D. Washington ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 14, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP2170-CR Cir. Ct. No. 2017CF232
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MONTRELL D. WASHINGTON,
DEFENDANT-APPELLANT.
APPEAL from a judgment and orders of the circuit court for
Waukesha County: LEE S. DREYFUS, JR., and LAURA F. LAU, Judges.
Affirmed.
Before Neubauer, C.J., Reilly, P.J., and Davis, J.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP2170-CR
¶1 PER CURIAM. Montrell D. Washington appeals from a judgment
of conviction and from orders denying his postconviction motions for plea
withdrawal and sentencing credit.1 We affirm.
BACKGROUND
Factual Background, Charges, and Preliminary Proceedings
¶2 On January 8, 2016, the Waukesha County Sheriff’s Department
responded to a dispatch in the Town of Vernon and found the victim dead from a
drug overdose. The victim’s brother, Sean, told police that he had purchased
heroin for his brother. According to Sean, he and his friend Thomas Sienkowski
had traveled to Milwaukee the day before to buy heroin from Sienkowski’s drug
dealer. Sienkowski corroborated this statement and admitted to purchasing drugs
from his dealer, “T.”
¶3 On January 13, Sienkowski, acting as a confidential informant,
conducted two controlled heroin buys from “T” under the direction of a
Milwaukee area drug enforcement task force and the Waukesha County Metro
Drug Unit. “T” was later identified as Washington.
¶4 At the time of these events, Washington was serving the extended
supervision portion of sentences for two burglary convictions (case
Nos. 10CF1917 and 11CF61). On April 5, an administrative law judge (ALJ)
revoked Washington’s extended supervision. The ALJ found that on or around
November 2015 through January 2016, Washington engaged in various acts that
1
The Honorable Lee S. Dreyfus, Jr., entered the judgment of conviction. The Honorable
Laura F. Lau entered the orders denying Washington’s postconviction motions.
2
No. 2019AP2170-CR
violated his rules of supervision. There were eight allegations made against
Washington; two of them concerned the January 13 heroin sales to Sienkowski.
None of the allegations concerned the January 7 heroin sale that led to the victim’s
death. The ALJ ordered that Washington be returned to prison for the remaining
time on each case: two years on case No. 10CF1917 to be served consecutive to
two years, three days on case No. 11CF61. Washington received custody credit on
case No. 11CF61 from January 25 through the date of the order.
¶5 On February 7, 2017, the State charged Washington with first-degree
reckless homicide—party to a crime, for manufacturing and/or delivering the
heroin that caused the victim’s death. See WIS. STAT. §§ 940.02(2)(a), 939.05
(2017-18).2 At the June 19 preliminary/arraignment hearing, Dr. Zelda Okia, the
Waukesha County associate medical examiner, testified that the cause of death
was mixed-drug (heroin and alcohol) intoxication. Okia explained that morphine
was detected in the victim’s blood; by comparing the levels of active (“free”)
versus total drug in the blood, Okia determined that the victim’s use was “more
recent”—“[p]erhaps hours.” Okia also pointed to the presence of a heroin
metabolite in the victim’s urine, allowing her to conclude that the victim ingested
the specific opioid heroin. Okia further noted injection sites on the victim; she
sampled the sites, detected morphine, and determined the site at which the victim
injected the fatal dose(s). Okia was thus able to conclude that “the heroin ingested
by [the victim] was a substantial factor in causing his death.” Following this
testimony, the trial court found probable cause to believe that Washington
2
All references to the Wisconsin Statutes are to the 2017-18 version.
3
No. 2019AP2170-CR
committed the allegations in the complaint and bound Washington over for trial.
Washington pled not guilty.
Plea Hearing and Motion for Plea Withdrawal
¶6 On January 19, 2018, Washington pled guilty in Waukesha County
circuit court to the amended charge of second-degree reckless homicide in
exchange for a recommended sentence of five years’ initial confinement and ten
years’ extended supervision (the State did not take a position as to whether the
sentence should be consecutive or concurrent to any other sentences).3 At the plea
hearing, Thomas Harris, Washington’s attorney, stated that he had met with
Washington the day before and had reviewed the plea questionnaire/waiver of
rights, along with the jury instructions explaining the elements of the crime.
Washington had signed the forms, thus averring, “I have decided to enter this plea
of my own free will. I have not been threatened or forced to enter this plea. No
promises have been made to me other than those contained in the plea agreement.”
¶7 The court conducted a standard plea colloquy, in which it reviewed
the elements of the charge, the rights Washington was giving up, and the possible
sentences that could be imposed. The court asked Washington, “[O]ther than
what’s been stated here [as to the amended charge and sentencing
recommendation], has anybody promised or offered you anything else in order to
get you to plead today?” Washington responded, “No.” The court further asked,
“Is anyone forcing you or threatening you in any manner in order to get you to do
3
It is unclear if Washington was serving any other sentences besides those for case
Nos. 10CF1917 and 11CF61, the cases for which his extended supervision was revoked on
April 5, 2016.
4
No. 2019AP2170-CR
this today?” Washington again responded, “No.” The court accepted
Washington’s plea and put over sentencing to another date.
¶8 Three weeks later, Washington brought a motion to withdraw his
guilty plea on four alleged grounds: (1) he was facing pending charges in
Milwaukee County and was told that those charges would be dismissed if he pled
guilty in the Waukesha case, but those charges were not in fact dismissed; (2) his
lawyer, Harris, “told me to take the deal or [Harris] would not be representing me
anymore”; (3) the district attorney “threaten[ed] [that] if I didn’t take the deal that
I’ll have to go straight to trial”; and (4) Harris pressured him in a more general
sense to “take the deal”:
[M]y Attorney consistently [told] me I’m dumb to go to
trial. Just take the deal [be]cause I’m guilty. In a way my
Attorney [made] me feel guilty. I did not voluntar[ily]
plead guilty. I was rushed into signing papers and just went
along to please him.
¶9 Prior to the hearing on Washington’s motion, the court considered a
motion by Harris to withdraw as counsel. Harris explained to the court that
Washington had “indicated some doubt … [as to] whether or not I’ve misle[d]
him.” Harris also pointed out that Washington’s plea withdrawal motion could put
Harris:
in an adversarial position … where I would have to be
called to testify as to whether or not I, in fact, pressured
him or coerced him in any way. So both because
[Washington] prefers a new set of eyes and because I’m
potentially a witness at this point, I thought the better
course would be to withdraw.
Washington confirmed that he understood that Harris’s motion would remove
Harris from the case, leading to the appointment of a new public defender. The
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No. 2019AP2170-CR
court then granted Harris’s motion, allowing him to withdraw as Washington’s
counsel.
¶10 On June 29, 2018, the court heard Washington’s plea withdrawal
motion. The court considered testimony from Washington and arguments from
both parties so as to determine whether a “fair and just reason” existed for
Washington’s plea withdrawal. See State v. Bollig, 2000 WI 6, ¶¶28-29, 232 Wis.
2d 561, 605 N.W.2d 199. As to Washington’s first stated reason, Washington
testified, “I thought Milwaukee was going to go along with the plea bargain to
close this up, everything was just going to be closed up” (the Milwaukee County
charges related to the possession, manufacturing, and delivery of illegal drugs).
According to Washington, the Milwaukee authorities discussed this “global plea
bargain” with him “multiple times” “in open court” prior to Washington pleading
guilty in Waukesha.
¶11 Upon further questioning, Washington admitted that he had not
brought any documentation to substantiate the Milwaukee offer (he explained that
he did have documentation but was unaware that he needed to bring it to the
hearing). Washington later clarified that the documentation itself might not fully
corroborate his testimony, but he maintained that the “global plea bargain”
promise was discussed several times on the record. He also admitted that he
generally understood the purpose of plea questionnaires from past plea deals and
that he had signed the questionnaire in the present case knowing that it did not
promise a “global plea bargain.” Washington further conceded that he was
truthful during the plea colloquy when he stated that there were no promises made
to him other than those contained in the plea questionnaire (however, he clarified,
“Because Mr. Harris or [the district attorney] didn’t promise me nothing. It was
6
No. 2019AP2170-CR
Milwaukee County.”) Finally, Washington admitted that Milwaukee might still
dismiss its charges following the resolution of the Waukesha case.
¶12 As to Washington’s second stated reason, that Harris threatened to
quit if he did not take the deal, Washington pointed out that Harris did in fact
move to withdraw as counsel after Washington moved to withdraw his plea.
Regarding reasons three and four (pressure or threats from the district attorney and
Harris), Washington explained that there was not necessarily “a verbal coerce ….
Almost like a moving along too fast. It’s like a sweeping me under the rug
coercion.” He “didn’t want to go straight to trial” and wanted to keep negotiating:
“I thought that I [could] have room for discussion … to … bring up stuff … to
[the] court that I thought mattered with the case.” The district attorney, however,
“t[old] me I got to take this deal or just … go straight to trial.” Washington again
admitted, however, that he had truthfully signed the plea questionnaire indicating
that he was not threatened and that he had truthfully stated as such to the trial
court.
¶13 The trial court denied Washington’s motion. It first explained that
the purported Milwaukee “global plea bargain” was simply never raised or
discussed during the Waukesha plea process. Moreover, the Milwaukee and
Waukesha cases were not consolidated, so even assuming Milwaukee made
Washington a promise, “enforceability would be an issue in Milwaukee County.”
The court also noted, however, that Milwaukee might very well uphold any
promise upon the actual resolution of the Waukesha case—that is, upon
sentencing. With respect to Washington’s present plea deal, however, “there’s
nothing that Mr. Washington has [presented to] indicate[] that there was a
misunderstanding, in terms of what the agreement was here in Waukesha.”
(Emphasis added.)
7
No. 2019AP2170-CR
¶14 The trial court implicitly discounted or disbelieved Washington’s
remaining reasons for seeking plea withdrawal. As to Washington’s second stated
reason, that Harris threatened to quit, the court noted that that Harris was “still the
attorney of record with regard to the matters that are pending in Milwaukee
County,” the implication being that Harris would not have continued to represent
Washington in those matters if he had in fact made prior threats towards
Washington or if Washington had pled guilty in response to those threats. The
court further discounted reason three, explaining that it is standard practice for a
district attorney to make a defendant an offer and, if that offer is declined, to
proceed to trial. More generally, the court noted that Washington was “very clear
… when [he] took the plea that other than what was said in court and put on the
record, that … he hadn’t been offered anything [and he] wasn’t being forced or
threatened in any manner.”
¶15 The court concluded, “What appears to [be] the primary issue here is
that Mr. Washington has continued to think about it …. My sense here is that he
has changed his mind ….” The court found that a mere “change of mind does not
constitute what we would define as a fair and just reason under statute to allow for
a plea withdrawal.” Simply put, there was “nothing here that indicates that there’s
[new] or additional information that was not available at the time of the plea” or
that Washington “was provided with misinformation or … simply didn’t
understand what was occurring.” The court further noted that Washington’s
“experience” within the criminal justice system meant that he was familiar with a
plea process and could be expected to understand what a guilty plea entailed.
Therefore, the court concluded, Washington may have had “a change of heart,”
but he did not have “a just and fair reason for withdrawal.”
8
No. 2019AP2170-CR
Sentencing and Postconviction Proceedings
¶16 On July 20, 2018, Washington was sentenced to six years’ initial
confinement and six years’ extended supervision, concurrent to his current
sentences. The court granted 466 days of sentence credit because Washington had
been detained in connection with the instant case since his March 30, 2017 initial
appearance.
¶17 Washington moved for postconviction relief in a series of motions.
First, Washington renewed the arguments he made in his presentencing motion for
plea withdrawal. He maintained that his plea was the result of
“misunderstanding … haste and confusion, and coercion,” and he concluded that
counsel’s role in the plea process represented ineffective assistance. Second, he
argued that counsel was ineffective on plea withdrawal because counsel did not
challenge the medical examiner’s (allegedly incorrect) cause-of-death
determination at the preliminary hearing. Finally, Washington argued that he was
entitled to sentencing credit from January 25, 2016, through March 29, 2017,
because during that time he was held in custody for the same “course of conduct”
charged in the homicide case. See WIS. STAT. § 973.155(1)(a).
¶18 The trial court denied Washington’s first and second motions
without a Machner4 hearing. The court determined that it had already addressed
and denied the “factual allegations and argument in the first motion,” having
found that the plea was not the result of misunderstanding, haste, confusion, or
coercion. The court also implicitly found that Washington was not entitled to a
4
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
9
No. 2019AP2170-CR
Machner hearing on either motion because he had not alleged sufficient material
facts that, if true, would establish deficient and prejudicial performance by trial
counsel. See State v. Allen, 2004 WI 106, ¶¶9, 26, 274 Wis. 2d 568, 682 N.W.2d
433. The court further denied the request for sentence credit, finding no proof that
Washington was detained prior to March 30, 2017, in connection with the instant
case. This appeal follows.
DISCUSSION
Plea Withdrawal Based on Grounds Raised in Presentencing Motion
¶19 Washington challenges the denial of his presentencing motion to
withdraw his guilty plea. We construe his appellate briefs as raising two
arguments: (1) that the trial court erroneously exercised its discretion prior to
sentencing by not granting plea withdrawal; and (2) that the trial court erred in
postconviction proceedings by not holding a Machner hearing on Washington’s
ineffective assistance of counsel claim relating to plea withdrawal.
¶20 Regarding Washington’s first argument, “a circuit court should
‘freely allow a defendant to withdraw his plea prior to sentencing if it finds any
fair and just reason for withdrawal, unless the prosecution has been substantially
prejudiced by reliance on the defendant’s plea.’” State v. Jenkins, 2007 WI 96,
¶28, 303 Wis. 2d 157, 736 N.W.2d 24 (citation omitted). It is the defendant’s
burden, by a preponderance of the evidence, to show a “fair and just reason,”
meaning the defendant must show “some adequate reason for the defendant’s
change of heart” beyond mere “belated misgivings about the plea.” Id., ¶¶31-32
(citation omitted). “[G]enuine misunderstanding of the consequences of a plea is a
fair and just reason” for plea withdrawal, id., ¶34, as are “coercion on the part of
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No. 2019AP2170-CR
trial counsel” and “[h]aste and confusion in entering the plea,” State v. Cooper,
2019 WI 73, ¶16, 387 Wis. 2d 439, 929 N.W.2d 192 (citation omitted).
¶21 This standard represents a relatively low bar, at least at the trial
level. On appeal, however, we must give substantial deference to the trial court’s
factual findings from the presentencing evidentiary hearing, reviewing them for
clear error. Jenkins, 303 Wis. 2d 157, ¶33. A finding of fact is “clearly
erroneous” where “it is against the great weight and clear preponderance of the
evidence.” Phelps v. Physicians Ins. Co. of Wis., 2009 WI 74, ¶39, 319 Wis. 2d
1, 768 N.W.2d 615 (citation omitted). This court searches the record not for
evidence opposing the trial court’s factual findings but for evidence in support.
Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶12, 290 Wis. 2d 264, 714
N.W.2d 530. We review the ultimate grant or denial of plea withdrawal for
erroneous exercise of discretion, meaning we will sustain the trial court’s decision
where it “examined the relevant facts, applied a proper standard of law, and, using
a demonstrated rational process, reached a conclusion that a reasonable judge
could reach.” Jenkins, 303 Wis. 2d 157, ¶30 (citations omitted).
¶22 Washington’s stated reasons for requesting plea withdrawal were
that he misunderstood the plea’s consequences (he believed he was entering into a
“global plea bargain” that would resolve criminal proceedings in Milwaukee
County), he was coerced by counsel (Harris threatened to withdraw if he did not
plead guilty), and the plea was made in haste and confusion (Harris and the district
attorney pressured and threatened him; for example, the district attorney told him
“to take the deal” or “go straight to trial”). The trial court assessed Washington’s
testimony and credibility and concluded that despite his assertions to the contrary,
Washington had merely had a “change of mind” or “change of heart,” as opposed
to any “fair and just reason” for plea withdrawal. Therefore, we must determine
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No. 2019AP2170-CR
whether this conclusion and the relevant factual findings supporting it were clearly
erroneous.
¶23 We find that that trial court’s findings of fact were not clearly
erroneous, in that the record supports its conclusion that Washington entered his
plea free from threats, coercion, pressure, or misunderstanding. The trial court
credited Washington with some level of sophistication within the criminal justice
system, given his past guilty pleas. In the trial court’s view, then, Washington
simply would not have pled guilty in expectation of a “global plea bargain”
without raising that possibility at some point during the Waukesha plea process.
Most notably, Washington both knowingly signed the plea questionnaire and
clearly attested in court that he was not promised anything other than what was
contained in the plea questionnaire. In addition, Washington did not bring any
evidence of the “global plea bargain” to the hearing, and he admitted on cross-
examination that this documentation might not, in fact, substantiate Milwaukee’s
promise. The trial court further reasoned that even if some “global plea bargain”
promise existed, “enforceability would be an issue in Milwaukee County.” Thus,
the trial court focused on any misunderstanding that might exist “in terms of what
the agreement was here in Waukesha,” and it determined that there was none.
That determination was not clearly erroneous.
¶24 The record further supports the trial court’s conclusion that Harris
and the district attorney did not improperly threaten, pressure, or coerce
Washington. The trial court again relied on the fact that Washington attested to
the contrary in his plea questionnaire and in open court. In addition, the trial court
found it noteworthy that Harris continued to represent Washington in pending
Milwaukee cases, even after Washington filed his motion for plea withdrawal
accusing Harris of improper coercion (which, for obvious reasons, did lead to
12
No. 2019AP2170-CR
Harris’s withdrawal as counsel in the Waukesha plea withdrawal motion). In the
trial court’s view, that relationship would not have continued had Harris in fact
coerced Washington in the instant case. It also appears that the trial court did not
believe in either the existence of, or the effect of, other alleged coercive acts by
Harris. This is borne out by Washington’s testimony, which on our review is
vague and does not describe any specific threatening actions by Harris. Finally,
the trial court correctly found that the district attorney acted in accordance with
professional norms and did nothing more than truthfully describe the
consequences of a failure to reach a plea agreement—that is, it was certainly true
that Washington would have gone “straight to trial” had he not pled guilty.
Therefore, as a matter of law, the district attorney’s actions could not form the
basis for a “fair and just reason” for plea withdrawal. Because the trial court was
not clearly erroneous in determining that Washington merely changed his mind
(i.e., that there was no “fair and just reason” for plea withdrawal), the trial court
did not erroneously exercise its discretion in denying Washington’s motion.
¶25 Washington next argues that he was entitled to a Machner hearing
on his postconviction ineffective assistance of counsel claim relating to plea
withdrawal. A postconviction hearing is required as a matter of law only where
the defendant has made a legally sufficient postconviction motion—that is, where
the defendant has alleged sufficient material facts that, if true, would entitle him or
her to relief. Allen, 274 Wis. 2d 568, ¶¶9, 12-14. If, on the other hand, “the
motion does not raise facts sufficient to entitle the movant to relief, or presents
only conclusory allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has the discretion to grant or
deny a hearing,” and we will accordingly review that decision for an erroneous
exercise of discretion. Id., ¶9.
13
No. 2019AP2170-CR
¶26 We find that as a matter of law, Washington’s postconviction motion
was insufficient to entitle him to a Machner hearing. His motion focused on the
arguments made at plea withdrawal—that his plea was the result of
misunderstanding, coercion, haste, and confusion. But the motion wholly failed to
explain why the facts alleged, even if true, represented deficient and prejudicial
performance by trial counsel. See Strickland v. Washington, 466 U.S. 668, 687
(1984); Allen, 274 Wis. 2d 568, ¶26 (to succeed on a claim of ineffective
assistance of counsel, the defendant must show that counsel’s performance was
deficient and that the deficient performance was prejudicial). In fact, the only
reference to ineffective assistance of counsel was in a heading (“Trial counsel was
ineffective entitling Washington to an evidentiary hearing to withdraw his plea”).
In such circumstance, we further find that the trial court did not erroneously
exercise its discretion in denying a hearing. It appeared to the trial court, as it
appears to us, that this motion concerned only the “factual allegations and
argument” raised and ruled on at the presentencing evidentiary hearing, as
opposed to any new issues that might fruitfully be explored at a Machner hearing.
Plea Withdrawal Based on Medical Examiner’s Cause-of-Death Determination
¶27 Washington’s second postconviction motion concerned alleged
errors made at the preliminary/arraignment hearing, at which Okia, the medical
examiner, testified as to the victim’s cause of death. Recall that Okia determined
cause of death from at least three observations: (1) that the relative level of free
morphine in the victim’s blood indicated recent drug use; (2) that a heroin
metabolite in the victim’s urine indicated that the victim ingested the opioid
heroin, and (3) that injection sites on the victim’s body contained sampled
morphine and indicated where the victim injected the fatal dose.
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No. 2019AP2170-CR
¶28 In his motion to the trial court, Washington argued that Okia found
the cause of death solely from the presence of a heroin metabolite in the urine and
that such testimony was contrary to testimony Okia gave in a similar case that
reached the Wisconsin Supreme Court. See State v. Mattox, 2017 WI 9, ¶¶15-17,
373 Wis. 2d 122, 890 N.W.2d 256. As recounted in Mattox, Okia explained that
“substances detected in urine indicate the presence of the substances but cannot be
used to determine the cause of death because ‘urine typically concentrates the
drugs.’” Id., ¶17. According to Washington, “[t]rial counsel was ineffective for
failure to object to Dr. Okia’s testimony and raise the issue of cause of death,” and
“had [trial counsel] successfully objected … the state would have no connection of
Washington to the victim’s death.” Essentially, Washington argued in his motion
that the denial of effective assistance of counsel represented a “manifest injustice”
warranting postsentencing plea withdrawal. See State v. Bentley, 201 Wis. 2d
303, 311, 548 N.W.2d 50 (1996).
¶29 On appeal, Washington contends that the trial court erred as a matter
of law in denying his motion without a Machner hearing. Again, the standard is
whether Washington’s motion alleged sufficient material facts that, if true, would
entitle him to relief, bearing in mind that the defendant is not entitled to relief
where “the record conclusively demonstrates” otherwise. See Allen, 274 Wis. 2d
568, ¶¶9, 12-14. If Washington’s motion did not meet this standard, then the trial
court’s denial of a hearing was a discretionary determination that we review under
the deferential “erroneous exercise of discretion” standard. See id., ¶9.
¶30 We find that Washington was not entitled to a Machner hearing
because his motion failed to demonstrate either deficient performance or
prejudice. First, Washington’s motion wholly misconstrued Okia’s testimony in
this case. On review of the transcript, it is clear that Okia did not determine cause
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No. 2019AP2170-CR
of death exclusively from the urine sample but merely used the urine sample to
support her conclusion that the victim ingested heroin, as opposed to another
opioid. As a matter of fact, therefore, trial counsel was not ineffective for failing
to object to this testimony, which on this record seems both correct and consistent
with Okia’s prior testimony in Mattox. Second, aside from conclusory and
factually incorrect statements,5 Washington failed to explain why counsel’s
allegedly deficient performance was prejudicial, which in this context means “that
there is a reasonable probability that, but for the counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” See Bentley, 201
Wis. 2d at 312 (citation omitted); see also State v Hampton, 2004 WI 107, ¶60,
274 Wis. 2d 379, 683 N.W.2d 14. Therefore, the trial court did not err as a matter
of law in denying a Machner hearing. In addition, because this motion was
merely based on a mischaracterization of Okia’s testimony, we find that the trial
court did not erroneously exercise its discretion in denying a hearing. See
Jenkins, 303 Wis. 2d 157, ¶30.
Sentencing Credit
¶31 Finally, Washington argues that the trial court erred as a matter of
law in denying him sentencing credit from January 25, 2016, through March 29,
2017. Under Wisconsin law, “[a] convicted offender shall be given credit toward
the service of his or her sentence for all days spent in custody in connection with
the course of conduct for which sentence was imposed.” WIS. STAT.
§ 973.155(1)(a). “Course of conduct” means “the specific ‘offense or acts’
5
For example, Washington’s argument that there would have been “no connection
[between] Washington [and] the victim’s death” without Okia’s testimony is patently untrue
given Sienkowski’s statements to police implicating Washington in the victim’s death.
16
No. 2019AP2170-CR
embodied in the charge for which the defendant is being sentenced.” State v.
Tuescher, 226 Wis. 2d 465, 470-72, 595 N.W.2d 443 (Ct. App. 1999). “A
defendant seeking sentence credit in Wisconsin has the burden of demonstrating
both ‘custody’ and its connection with the course of conduct for which the
Wisconsin sentence was imposed.” State v. Carter, 2010 WI 77, ¶11, 327 Wis. 2d
1, 785 N.W.2d 516.
¶32 Washington has not met this burden. The record evidence indicates
that Washington was detained on January 25, 2016, in connection with eight
alleged violations of the rules of his extended supervision in case Nos. 10CF1917
and 11CF61. On April 5, 2016, the ALJ revoked Washington’s extended
supervision, having found all eight allegations proven. None of the conduct at
issue in the revocation proceeding concerned the January 7, 2016 sale of drugs
leading to the victim’s January 8 death (two of the allegations did concern
Washington’s January 13 drug sales to Sienkowski, who at that point was acting as
a confidential informant, but these actions plainly cannot form part of the same
“course of conduct” as the heroin sale causing the victim’s death). On March 30,
2017, Washington made his initial appearance in the present case; thus, a detainer
was placed on him for this case beginning on March 30. All of the evidence
indicates that trial court properly awarded sentence credit beginning on March 30,
2017, through the date of sentencing.
By the Court.—Judgment and orders affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
17