State v. Tanya M. Liedke ( 2021 )


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  •        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
    

Document Info

Docket Number: 2020AP000033-CR

Filed Date: 12/29/2021

Precedential Status: Non-Precedential

Modified Date: 9/9/2024