State v. Tanya M. Liedke ( 2021 )

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.
December 29, 2021
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. 2020AP33-CR Cir. Ct. No. 2015CF58
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
TANYA M. LIEDKE,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Fond du Lac County:
RICHARD J. NUSS, Judge. Affirmed in part; reversed in part and cause
remanded with directions.
Before Neubauer, Reilly and Grogan, JJ.
¶1 REILLY, J. Tanya M. Liedke appeals from an order denying her
motion for correction of sentence credit. She argues that she is entitled to
additional sentence credit based on an erroneous calculation. Liedke further
No. 2020AP33-CR
claims entitlement to sentence credit for the time spent on GPS monitoring. She
argues that our supreme court’s interpretation of the statutory term “custody” in
State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, violates her
right to equal protection. We reject Liedke’s equal protection argument and agree
with the circuit court that she is not entitled to sentence credit for the time she
spent on a GPS monitor. We reverse on the amount of sentence credit, as the
parties agree that Liedke is entitled to additional credit but dispute what the
amount is. As the record before us does not allow us to make that calculation, we
remand for the court to determine the correct amount of sentence credit.
BACKGROUND
¶2 In 2015, Liedke was charged in a sixteen-count complaint with
burglary, forgery, attempted forgery, identity theft, and bail jumping, based on her
act of breaking into her landlord’s home, stealing pills and a check, and then
attempting to cash the check. She pled no contest to five of the counts, all as a
repeater, and the remaining counts were dismissed and read in.1 On Counts 1, 2,
and 3, the court imposed and stayed a five-year sentence on each count (two and
one-half years’ initial confinement and two and one-half years’ extended
supervision) to be served consecutively to each other and any other sentence,
placed Liedke on probation for four years, and awarded 164 days of sentence
credit. On Counts 4 and 5, the court withheld sentence, placed Liedke on
probation for four years, and likewise granted 164 days of sentence credit in the
event her probation was revoked. Liedke was ordered to participate in drug
1
Liedke also pled no contest to charges in two other cases.
2
No. 2020AP33-CR
treatment court as a condition of her probation, and the GPS bracelet was a
condition of the drug treatment court.
¶3 Liedke’s probation did not go well, and she was in and out of jail
numerous times for violating conditions of her probation. On May 4, 2018,
Liedke’s probation was revoked, and she began serving the imposed sentence on
Counts 1-3. On Counts 4 and 5, Liedke was returned to the sentencing court for
sentencing on her withheld sentence, and the court imposed a four-year term of
imprisonment on each count—two years’ initial confinement and two years’
extended supervision—concurrent to each other and any other sentence. The court
awarded 421 days of sentence credit.
¶4 In November 2018, by letter to the circuit court, Liedke sought credit
of 421 days on the sentence she was serving for Counts 1-3. In other words, she
requested credit equal to the credit received for Counts 4 and 5.2 The court denied
her request, explaining that “[c]redit on JOC [(judgment of conviction)] is correct.
Further concerns need to be addressed by [the Department of Corrections
(DOC)].”
¶5 Liedke sought clarification or modification of her sentence credit
from the circuit court four more times. She sent two letters to the court on
December 2 and 20, 2018. Again, the court responded: “JOC is attached. As
stated previously you received the correct credit. Per JOC that’s 421 days.”
Liedke then sought credit modification by motion. She filed the first motion on
January 9, 2019, pro se, stating that she “received 398 jail credit days on counts 1-
2
Dual credit is permissible only when two sentences are imposed concurrently. See
State v. Boettcher, 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988).
3
No. 2020AP33-CR
3, [and] on counts 4-5 [she] received 421” and seeking additional credit for the
days she spent in the Fond du Lac Drug Court program. The court denied her
motion, stating, “No new factor [and] all credit concerns were previously
addressed.”
¶6 The second motion was made on December 18, 2019, with counsel,
seeking sentence correction from 421 to 435 days. Liedke also sought credit on
equal protection grounds for 147 days that she wore a GPS bracelet. Liedke asked
that both judgments of conviction be amended. The court again denied her
motion, “find[ing] that a defendant is not entitled to sentence credit when placed
on a GPS bracelet while on probation because they are not in custody” and that
“the court does not recalculate sentence credit and amend a judgment of
conviction following a revocation of probation on an imposed and stayed sentence
to reflect additional credit resulting from the revocation as that is the responsibility
of DOC.” Liedke appeals.
DISCUSSION
¶7 On appeal, Liedke argues that she is entitled to a total of 582 days of
credit, which includes 435 days of credit—rather than the awarded 421 days—as
well as 147 days of credit for time wearing a GPS bracelet. The State argues that
Liedke is not entitled to the 147 days for wearing a GPS bracelet, as that question
was answered in Magnuson, 233 Wis. 2d 40, ¶25. As to whether the amount of
credit was properly calculated at the time of sentencing on Counts 4 and 5, the
State agrees that Liedke was entitled to some additional sentence credit but does
not agree with Liedke’s 435-day calculation. The State also makes a procedural
argument that we should dismiss this appeal on the ground that under WIS. STAT.
4
No. 2020AP33-CR
§ 973.155(5) (2019-20),3 Liedke was required to petition DOC prior to seeking
credit correction from the circuit court.
GPS Monitoring and Equal Protection
¶8 Liedke is not entitled to sentence credit for the 147 days she was
under GPS monitoring. In Magnuson, our supreme court engaged in statutory
interpretation to address and then apply the “definition of custody for purposes of
sentence credit under WIS. STAT. § 973.155.” Magnuson, 233 Wis. 2d 40, ¶¶11-
13 (“Statutory interpretation and the application of a statute to particular facts
present questions of law that we review independently of the determinations
rendered by the circuit court and the court of appeals.”). The court’s definition of
“custody” became a bright-line “rule” under § 973.155(1)(a), when the court
rejected the previous case-by-case determination of custody. Magnuson, 233
Wis. 2d 40, ¶¶18, 22. According to the court, “an offender’s status constitutes
custody whenever the offender is subject to an escape charge for leaving that
status.” Id., ¶¶25, 31, 47. We are bound by the definition of “custody” set forth in
the sentence credit statute, in what has become known as the Magnuson “rule.”4
See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Liedke was not
subject to an escape charge while under GPS monitoring and, therefore, is not
entitled to sentence credit.
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
4
Our supreme court recently re-affirmed Magnuson’s definition of “in custody” in State
v. Friedlander, 2019 WI 22, ¶¶2, 48, 385 Wis. 2d 633, 923 N.W.2d 849 (“We conclude that for
the purpose of receiving sentence credit under [WIS. STAT.] § 973.155, a defendant is ‘in custody’
whenever the defendant is subject to an escape charge under WIS. STAT. § 946.42, or another
statute which expressly provides for an escape charge, as this court held in Magnuson.”).
5
No. 2020AP33-CR
¶9 Our analysis could end there, but Liedke frames her challenge in
constitutional terms, explaining that “[t]he Magnuson court wasn’t asked to
consider, and did not address, the equal protection implications of its custody test.
This court should do so here.” According to Liedke, “Magnuson results in
disparate treatment of similarly situated groups,” composed of probationers who
wore a GPS bracelet and faced an escape charge and those who did not face an
escape charge. Despite her broad pronouncement regarding the effect of our
supreme court’s interpretation of the sentence credit as set forth in Magnuson,
Liedke defines her argument as an “as applied” challenge.
¶10 The right to equal protection is guaranteed by both the United States
Constitution and our state constitution. U.S. CONST. amend XIV; WIS. CONST.
art. I, § 1. The equal protection clause protects by requiring that the State “have
reasonable and practical grounds for the classifications that it draws.” State v.
Quintana, 2008 WI 33, ¶79, 308 Wis. 2d 615, 748 N.W.2d 447. Challenges to
these classifications of criminal offenders are subject to the rational basis test.5
See Hilber v. State, 89 Wis. 2d 49, 54, 277 N.W.2d 839 (1979); State v.
Chapman, 175 Wis. 2d 231, 245, 499 N.W.2d 222 (Ct. App. 1993). “Under this
5
Liedke argues that the Magnuson rule—relating the meaning of custody “solely to the
possibility of an escape charge”—creates a “disparity of treatment” that “impinges on the right to
‘[f]reedom from physical restraint’” and the right to liberty protected by the Due Process Clause.
See Winnebago County v. Christopher S., 2016 WI 1, ¶37, 366 Wis. 2d 1, 878 N.W.2d 109.
Given that this question implicates a fundamental right, Liedke claims, the Magnuson rule must
survive strict scrutiny. Liedke, however, presents no cases where strict scrutiny was applied to a
case involving sentencing credit. See Milwaukee County v. Mary F.-R., 2013 WI 92, ¶38, 351
Wis. 2d 273, 839 N.W.2d 581; Foucha v. Louisiana, 504 U.S. 71, 86 (1992). The State, in
contrast, identifies several cases where rational basis, rather than strict scrutiny, was applied to an
equal protection challenge involving sentence credit. See Hilber v. State, 89 Wis. 2d 49, 54, 277
N.W.2d 839 (1979); State v. Chapman, 175 Wis. 2d 231, 245, 499 N.W.2d 222 (Ct. App. 1993);
Reginald D. v. State, 193 Wis. 2d 299, 306, 312-13, 533 N.W.2d 181 (1995); see also Klotz v.
Richardson, No. 14-CV-1040, 2015 U.S. Dist. LEXIS 70488, at *7-9 (E.D. Wis. June 1, 2015).
We conclude that Liedke’s equal protection claim is subject to rational basis review.
6
No. 2020AP33-CR
‘rational basis’ test, equal protection is violated only if the classification rests upon
grounds wholly irrelevant to the achievement of the state’s objective.” State v.
Smet, 2005 WI App 263, ¶21, 288 Wis. 2d 525, 709 N.W.2d 474. “The legislature
need not state the purpose or rationale justifying the classification” provided that
“there is a plausible explanation for the classification, [then] we will uphold the
law.” Id. “[T]he basic test is not whether some inequality results from the
classification but whether there exists a rational basis to justify the inequality of
the classification.” State ex rel. Harr v. Berge, 2004 WI App 105, ¶5, 273
Wis. 2d 481, 681 N.W.2d 282 (citation omitted).
¶11 Liedke complains that treating probationers such as herself who are
subject to GPS monitoring differently from prisoners subject to GPS monitoring
on intensive sanctions—for purposes of determining sentence credit—violates her
equal protection rights. In this case, however, we 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 Chapman,
175 Wis. 2d at 245 (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. See WIS. ADMIN. CODE § DOC 333.07(1)(a)–(r).
Treating those on ordinary probation differently for sentence credit purposes from
those sentenced to or placed on intensive sanctions reflects the different purposes
7
No. 2020AP33-CR
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.
¶12 The statutory distinction promotes consistency and uniformity as
methods of custody develop, which are both rational and relevant considerations in
achieving the state’s objective of providing sentence credit when the restrictive
situation subjects an offender to an escape charge, and is therefore custodial.
Magnuson, 233 Wis. 2d 40, ¶¶22, 25. Again, it is not within our power to
overrule or modify the meaning of the statutory term “custody” set forth by
Magnuson; moreover, the Magnuson court’s definition of custody for the purpose
of sentencing credit is not “wholly irrelevant to the achievement of the state’s
objective.” See Smet, 288 Wis. 2d 525, ¶21. We reject Liedke’s claim and affirm
the circuit court’s order on this issue.
Erroneous Sentencing Credit
¶13 We next address Liedke’s contention that she is entitled to 435 days
of credit, rather than the 421 days entered by the circuit court. WISCONSIN STAT.
§ 973.155(1)(a) provides that a defendant “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.” “The award of sentence credit is
mandatory as a person may not serve more time than his or her sentence.” State v.
Kitt, 2015 WI App 9, ¶3, 359 Wis. 2d 592, 859 N.W.2d 164 (citing State v.
Carter, 2010 WI 77, ¶51, 327 Wis. 2d 1, 785 N.W.2d 516). Further, awarding
sentence credit is a judicial function that requires a court to make explicit
8
No. 2020AP33-CR
findings.6 See § 973.155(2); see also Klimas v. State, 75 Wis. 2d 244, 251-53, 249
N.W.2d 285 (1977). Whether a defendant is entitled to sentence credit involves
the application of the statute to a particular set of facts, which presents a question
of law. State v. Rohl, 160 Wis. 2d 325, 329, 466 N.W.2d 208 (Ct. App. 1991).
¶14 There are three situations pursuant to which the circuit court may
consider sentence modification: “(1) a clear mistake was made at sentencing,
calling for a correction of a formal or clerical error, or an illegal sentence; (2) a
new factor is presented, one that the circuit court could not or did not consider in
the original sentencing but now should consider in order to fulfill the purposes of
the original sentence; and (3) the sentence is unduly harsh or unconscionable.”
State v. Dowdy, 2010 WI App 158, ¶28, 330 Wis. 2d 444, 792 N.W.2d 230; see
also State v. Crochiere, 2004 WI 78, ¶12, 273 Wis. 2d 57, 681 N.W.2d 524 (“[A]
court has the power to correct formal or clerical errors or an illegal or a void
sentence at any time.” (citation omitted)), abrogated on other grounds by State v.
Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828.
¶15 As an initial matter, the State argues that WIS. STAT. § 973.155(5)
requires Liedke to petition DOC for sentence credit prior to petitioning the circuit
court for relief. “[W]hen the person does not comply with section 973.155(5)’s
6
Determining the proper amount of sentence credit requires application of WIS. STAT.
§ 973.155 to undisputed facts. A defendant is entitled to sentence credit if: (1) the defendant
“was ‘in custody’ for the period under consideration,” and (2) that “custody was ‘in connection
with the course of conduct for which sentence was imposed.’” State v. Obriecht, 2015 WI 66,
¶25, 363 Wis. 2d 816, 867 N.W.2d 387 (citation omitted). “To qualify as time spent ‘in
connection with’ the course of conduct giving rise to a sentence, a period of custody must be
‘factually connected with the course of conduct for which sentence was imposed.’” State v.
Zahurones, 2019 WI App 57, ¶14, 389 Wis. 2d 69, 934 N.W.2d 905 (citation omitted). “[A]
mere procedural connection will not suffice.” Id. (alteration in original; citation omitted).
9
No. 2020AP33-CR
mandated procedures,” claims the State, “the sentencing court lacks competency to
decide sentence credit.” Under the circumstances, we disagree.
¶16 WISCONSIN STAT. § 973.155(5) provides:
If this section has not been applied at sentencing to any
person who is in custody or to any person who is on
probation, extended supervision or parole, the person may
petition the department to be given credit under this
section. Upon proper verification of the facts alleged in the
petition, this section shall be applied retroactively to the
person. If the department is unable to determine whether
credit should be given, or otherwise refuses to award
retroactive credit, the person may petition the sentencing
court for relief. This subsection applies to any person,
regardless of the date he or she was sentenced.
(Emphasis added.) 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.7 She was
7
WISCONSIN JI—CRIMINAL SM-34A(VI) (2021) (emphasis added), also provides
insight for correcting sentence credit errors:
Since the effective date of [WIS. STAT. §] 973.155 in 1978, it has
been required that the sentence credit determination be made part
of the judgment of conviction as a finding by the court. As
stressed above in Section III.A., judicial time and energy may be
saved if courts require accurate information at the time of
sentencing and impress upon the parties the importance of
making the credit determination at that time. Even when this is
done, however, the credit determination may turn out to be
wrong and need correction. Correcting an erroneous credit
determination is required even if the defendant stipulated to that
determination. [State v. Kontny, 2020 WI App 30, ¶¶7-9, 392
Wis. 2d 311, 943 N.W.2d 923].
(continued)
10
No. 2020AP33-CR
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.” Crochiere, 273 Wis. 2d 57, ¶12 (emphasis added; citation
omitted). Liedke was not required to first petition DOC in this case.
¶17 Next we address Liedke’s argument that she is entitled to 435 days,
not 421 days of credit. The State has conceded error8 and agrees that Liedke may
If a determination was not made in the judgment, past
practice has been to first petition the Department of Corrections
for credit. When a determination has been made part of the
judgment, any change in that determination requires an
amendment of the judgment. While administrative change of the
sentence credit finding might be more convenient, a finding in a
judgment simply may not be amended by administrative action.
8
The State and Liedke created helpful charts to demonstrate the discrepancies between
its calculations and those of Liedke. Both Liedke and the State agree that Liedke is entitled to an
extra day of pre-plea sentencing credit (165 days versus 164 days), as it appears that Liedke did
not receive credit for the day of her arrest. See Kontny, 392 Wis. 2d 311, ¶¶10-12. The State
then postulates that “Liedke appears to be entitled to 400 days credit on Counts One, Two, and
Three and to 422 days of credit on Counts Four and Five.”
(continued)
11
No. 2020AP33-CR
be entitled to additional sentence credit, “but not as much as she seeks.” Based
upon the State’s concession of error, we reverse and remand for a determination as
to the amount of sentence credit Liedke is due.
By the Court.—Order affirmed in part; reversed in part and cause
remanded with directions.
Not recommended for publication in the official reports.
Both sides appear to agree Liedke was in custody during a thirty-five-day time period,
which purportedly covers the time from November 15, 2017, to December 20, 2017. However,
Liedke argues that she is entitled to credit for pre-revocation jail time from October 30, 2017, to
December 20, 2017, and contends that the “record contains no clear explanation for this 35-day
discrepancy.” The State’s brief also contains a contradiction as to the applicable time period. It
first lists “November 15, 2017, to December 20, 2017” as the time period it contends Liedke was
serving unrelated misdemeanor sentences. But the State later says: “While Liedke may have
been in custody for 36 days from November 16, 2017 to December 12, 2017, that custody was in
connection with a sentence imposed on two unrelated cases.” The State’s later time period does
not equal thirty-five days. It covers twenty-six days. We are unable to determine whether that
time period was factually connected to Liedke’s crimes in this appeal or whether that time period
was factually connected to her unrelated misdemeanors as the State contends. Liedke also
questions twenty-two days from May 15, 2018, to June 6, 2018, which the State believes should
be credited to her revocation sentences.
12