                                                                             2015 WI 66

                  SUPREME COURT                    OF    WISCONSIN
CASE NO.:               2013AP1345-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Andrew M. Obriecht,
                                  Defendant-Appellant-Petitioner.


                           REVIEW OF A DECISION OF            THE COURT OF APPEALS
                          (Reported at 353 Wis. 2d            542, 846 N.W. 2d 479)
                                    (Ct. App. 2014            – Published)
                                       PDC No: 2014            WI App 42

OPINION FILED:          July 7, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 3, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               William E. Hanrahan

JUSTICES:
   CONCURRED:           BRADLEY, J., joined by ABRAHAMSON and CROOKS,
                        JJ. concur (Opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Colleen Marion, assistant state public defender, and oral
argument by Colleen Marion.


       For      the    plaintiff-respondent,            the   cause   was    argued    by
Katherine D. Lloyd, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.


       An    amicus      curiae     brief    was    filed     by   Jeff   Scott   Olson,
Madison,        on    behalf   of   the     Wisconsin     Association       of   Criminal
Defense Lawyers.
                                                                          2015 WI 66
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.        2013AP1345-CR
(L.C. No.     1998CF271)

STATE OF WISCONSIN                              :            IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent,                                   FILED
       v.                                                           JUL 7, 2015
Andrew M. Obriecht,                                                  Diane M. Fremgen
                                                                  Clerk of Supreme Court
               Defendant-Appellant-Petitioner.




       REVIEW of a decision of the Court of Appeals.                 Reversed.


       ¶1      PATIENCE DRAKE ROGGENSACK, C.J.            This sentence credit
case       arises    from   Andrew   M.   Obriecht's    convictions        of    seven

misdemeanors and one felony, wherein we review a decision of the
court of appeals1 that affirmed the circuit court's2 denial of




       1
       State v. Obriecht, 2014 WI App 42, 353 Wis. 2d 542, 846
N.W.2d 479.
       2
       The          Honorable   William    E.   Hanrahan       of     Dane      County
presiding.
                                                                     No.     2013AP1345-CR



Obriecht's motion for sentence credit.3                    The circuit court agreed
that Obriecht was due sentence credit, but the court refused to
apply the credit to his incarceration, and instead, applied the
credit to Obriecht's parole following incarceration.
       ¶2    As we explain below, Obriecht was not sentenced for
the felony conviction until probation for that conviction was
revoked.      At that time, he was eligible to receive sentence
credit against the felony sentence the court imposed.                            However,
no    sentence   credit      was   given.         Obriecht         was     paroled      from
incarceration    for    the    felony     conviction         and    subsequently         his
parole was revoked.           It was at the revocation of parole that
Obriecht first requested the sentence credit that is now before

us.
       ¶3    We conclude that because Obriecht had completed the
sentences for his misdemeanor convictions when his parole from
incarceration for the felony was revoked and he first requested
sentence    credit,    the    only    sentence        to    which    sentence         credit
could be applied was the indeterminate sentence for the felony
conviction.      We    also    conclude        that   not     all   of     the    days    of
Obriecht's    custody     prior      to   his    2001      incarceration         at    Dodge


       3
       Obriecht and the State acknowledge that Obriecht has been
released from incarceration.   However, we choose to decide the
questions presented because they are capable of repetition, yet
may evade review. G.S., Jr. v. State, 118 Wis. 2d 803, 805, 348
N.W.2d 181 (1984).     The question of application of sentence
credit to a revoked probationer may evade review because with
reincarceration orders, the appellate process frequently cannot
be completed such that the decision has a practical effect on
the parties. Id.

                                           2
                                                                           No.     2013AP1345-CR



Correctional           Institution      were    in    connection        with      the    conduct
that       led    to   the    felony    sentence.           We    further       conclude    that
although Obriecht had 105 days of custody for which he had not
yet received sentence credit when his parole was revoked, as we
explain below, only 42 days of custody were in connection with
the    course          of    conduct     that       led     to    the   felony         sentence.
Therefore, 42 of the 105 days of custody prior to Obriecht's
2001       incarceration        should    have       been    applied       to    his    term    of
reincarceration for the felony conviction.                          Wis. Stat. § 973.155
(2011-12).4            We also conclude that when a convicted defendant's
parole is revoked, the parolee's indeterminate sentence that was
issued       by    the      circuit    court    resumes          running    so    that     it   is

available to accept sentence credit.                         Wis. Stat. § 304.072(4).
Accordingly,           we    reverse     the    court       of    appeals       decision    that
affirmed the circuit court's denial of Obriecht's motion for
sentence credit.5




       4
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
       5
           Obriecht, 353 Wis. 2d 542.

                                                3
                                                                    No.    2013AP1345-CR



                                   I.     BACKGROUND
        ¶4      The criminal violations that underlie this dispute all
occurred before Truth-in-Sentencing (TIS) commenced.6                         Obriecht
was charged with and convicted of seven misdemeanors and one
felony.        Prior to serving his sentences, he was in custody in
1998,        1999   and   2001.        Upon   conviction,     he    was    given     some
sentence credit for these periods of custody.                      The parties agree
that Obriecht accumulated more sentence credit than the court
awarded.        However, the parties differ on how the court should
have        applied   the    requested    sentence     credit      because    Obriecht
first requested sentence credit after his parole from the felony
sentence was revoked.

        ¶5      The   periods     of     confinement    are     somewhat      hard    to
follow, as are their connections with the sentences given.                           Two
circumstances         lead   to   this    difficulty.       First,        Obriecht   was
arrested and convicted of seven misdemeanors and a felony, but
he was sentenced initially only on the misdemeanors and given
probation for the felony.               Second, Obriecht did not request the


        6
       TIS changed Wisconsin sentencing laws, breaking from the
indeterminate form of sentencing and creating a bifurcated
structure for imprisonment:      a term of prison confinement
followed by a term of extended supervision. Michael B. Brennan
et al., Fully Implementing Truth-in-Sentencing, Wis. Law., Nov.
2002, at 11. Obriecht committed the count one felony before TIS
went into effect for felonies. State v. Stenklyft, 2005 WI 71,
¶16, 281 Wis. 2d 484, 697 Wis. 2d 769 (stating Wis. Stat.
§ 973.01(1) was a main feature of TIS); § 973.01(1) (stating TIS
for felonies went into effect on December 31, 1999).    Obriecht
also committed the misdemeanors in counts two through seven
before TIS went into effect for misdemeanors. Id. (stating TIS
for misdemeanors went into effect on February 1, 2003).

                                              4
                                                                    No.     2013AP1345-CR



sentence credit that is at issue here until he had completed the
misdemeanor         sentences    and       parole    from   incarceration      for     the
felony had been revoked.
        ¶6        In an effort to clarify, we begin by setting out the
periods of Obriecht's custody that was in connection with both
the misdemeanors and the felony.                    We then identify custody that
was imposed solely in connection with the misdemeanors.                              Next,
we identify the sentence credit given and apply it to the 1998,
1999,       and     2001   custody7    beginning       with   the   1998     period     of
custody.          In that way, the sentences imposed connect with the
credit given and the mathematical calculation of the custody for
which sentence credit was not given.

        ¶7        On February 2, 1998 Obriecht was arrested and charged
with seven misdemeanors and one felony.                     He was released on bail
pending trial on October 16, 1998, resulting in custody of 257
days.
        ¶8        On June 30, 1999, Obriecht was convicted by a jury of
all eight counts, seven misdemeanors and one felony, and he was
taken        into    custody.         On    November 19,      1999,       Obriecht     was
sentenced on the misdemeanor convictions, whereon he received a
combined indeterminate sentence of seven years.                       On the felony
conviction, the court withheld sentence and placed Obriecht on
12 years probation.             The custody from June 30 to November 19
resulted in additional custody of 142 days.

        7
       The 1998, 1999, and 2001 periods of custody refer to
Obriecht's custody prior to his incarceration on April 21, 2001
at Dodge Correctional Institution.

                                              5
                                                                  No.    2013AP1345-CR



     ¶9    Obriecht continued in custody until December 20, 1999,
when his misdemeanor sentences were stayed pending appeal and he
was released on bail.        The period of custody from sentencing on
November 19,    1999   to    bail   on       December 20,    1999       resulted   in
additional custody of 32 days.
     ¶10   On March 21, 2001, the stay of Obriecht's misdemeanor
sentences was lifted and he was held in jail.                     Obriecht entered
Dodge Correctional Institution on April 21, 2001 to begin his
sentence on the misdemeanor convictions, resulting in additional
custody of 31 days.         Therefore, Obriecht's total custody prior
to his April 21, 2001 incarceration was 462 days (257 + 142 + 32
+ 31 days).8
     ¶11   In   regard      to   sentence       credit,     the     circuit     court
initially granted Obriecht 326 days of sentence credit when he
was sentenced for the misdemeanor convictions.                          On March 21,
2001, when the circuit court lifted the stay pending appeal, the
court granted an additional 31 days, for a total of 357 days of


     8
                                                          Days in
           Period of Custody                              Custody

           2/2/1998 to 10/16/1998                           257
           6/30/1999 to 11/19/1999                          142
           11/19/1999 to 12/20/1999                          32
           3/21/01 to 4/21/01                                31
                                              TOTAL         462

                                                       Days of
           Date of Credit Award                    Credit Awarded

           11/19/1999                                      326
           3/21/2001                                        31
                                              TOTAL        357
                                         6
                                                                        No.        2013AP1345-CR



sentence credit.             However, Obriecht had spent a total of 462
days in custody.            Therefore, Obriecht was due an additional 105
days of sentence credit at that time.
       ¶12       On August 17, 2001, while he was incarcerated at Dodge
Correctional           Institution,        Obriecht's     probation      on        the     felony
conviction was revoked.                The circuit court sentenced him to an
indeterminate           seven-year     sentence      "[c]onsecutive           to    any        other
sentence."            No additional sentence credit was given.
       ¶13       On    March 22,     2011,    Obriecht      was   released          on     parole
from       the    indeterminate        seven-year         sentence      for        the     felony
conviction.9             Obriecht     violated     parole,     and      was    returned          to
prison on February 1, 2013.

       ¶14       On     February 1,    2013,       Obriecht,      proceeding             pro    se,
first requested 107 days of sentence credit.                              Initially, the
State did not object to Obriecht's request.                          The circuit court
agreed      and       "adjudged     that    107    days    sentence      credit          are     due
pursuant to § 973.155, Wisconsin Statutes."
       ¶15       However,     on      March 21,       2013,       the    Department              of
Corrections (DOC) wrote to the circuit court asking the court to
"clarify" Obriecht's amended judgment of conviction.                                     The DOC
said that it read Wis. Stat. § 302.11(7) to mean that sentence
credit awarded to one whose parole has been revoked was not
applied to reincarceration, but rather, sentence credit should
reduce parole time that may remain.


       9
       When Obriecht was released on parole from the consecutive
felony sentence, he had completed the misdemeanor sentences.

                                               7
                                                                         No.     2013AP1345-CR



        ¶16     Obriecht      disputed      the      DOC's    interpretation           of   Wis.
Stat.        § 302.11(7),     pro     se.     Obriecht        argued    that     Wis.       Stat.
§ 973.155(5)          requires       sentence        credit    be    applied      to     reduce
incarceration.           Upon reconsideration, the circuit court agreed
with the DOC, and on April 3, 2013, the court rescinded the
application of 107 days of sentence credit to Obriecht's term of
incarceration and applied the credit to any term of subsequent
parole.10
        ¶17     Obriecht appealed.            He argues that the circuit court
should have applied 107 days of sentence credit to his period of
reincarceration because all of the 107 days were incurred in
connection with the crimes for which he was incarcerated prior

to parole.11
        ¶18     The court of appeals concluded that the plain language
of Wis. Stat. § 302.11(7)(am) and (b) required that Obriecht's
sentence        credit       be     applied     to     reduce       parole     rather        than
reincarceration          ordered       by     the     Department        of     Hearings       and
Appeals (DHA).           State v. Obriecht, 2014 WI App 42, ¶13, 353
Wis. 2d        542,    846        N.W.2d    479.        The     court        explained      that
§ 302.11(7)(b)          provided       that     a     revoked       parolee      "'shall       be
incarcerated for the entire period of time'" ordered by the DHA.

        10
       The court did not issue a ruling, but rather noted on
Obriecht's March 18, 2013 letter: "DOC interpretation of law in
correspondence of 3/18/13 is correct."  The notation is signed
and dated April 3, 2013.
        11
       Obriecht's counsel did not itemize the 107 day-tally for
sentence credit, and we have not been able to determine how that
number was calculated.

                                                8
                                                                     No.     2013AP1345-CR



Id. (quoting § 302.11(7)(b)).                 Doing as Obriecht requested, the
court         concluded       would     violate          the     express     terms       of
§ 302.11(7)(b).         Id.
        ¶19    Obriecht sought review, which we granted.                     Before us,
the State initially acknowledged that Obriecht was due sentence
credit,       but   contended      that       sentence     credit    applied     to     any
remaining time on parole because it could not be applied to
reduce the length of reincarceration that the DHA ordered when
Obriecht's       parole     was   revoked.         At    oral    argument,    the     State
shifted its argument and contended that Obriecht's custody was
not sufficiently connected to the course of conduct for which
sentence was imposed to merit sentence credit.                       We address this

argument, as well as those arguments that were briefed.
                                      II. DISCUSSION
        ¶20    Obriecht     contends      that     the    circuit    court     erred     in
failing to grant sentence credit when he was sentenced for the
felony conviction and he is seeking to correct that error.                              The
State focuses on a later period in time, i.e., when the DHA
revoked Obriecht's subsequent parole from the felony sentence,
and contends that Wis. Stat. § 302.11(7)(b) requires Obriecht to
serve the full term of reincarceration that he was given by the
DHA.      At     oral     argument,     the    State      also   contended     that     the
sentence credit Obriecht requested is not sufficiently connected
with the course of conduct for which he was sentenced.                                 They

present two very different questions, and as we explain below,
both Obriecht and the State are correct to some extent.


                                               9
                                                                          No.     2013AP1345-CR



                              A.     Standard of Review
       ¶21   We review whether the circuit court correctly applied
Obriecht's    sentence        credit    to    his      parole       rather      than    to     his
incarceration under the provisions of Wis. Stat. § 973.155.                                    We
also     consider       Wis.        Stat.     § 304.072(4)               and     Wis.     Stat.
§ 302.11(7).          Statutory interpretation and application present
questions of law that we review independently while benefitting
from prior decisions of other courts.                         Richards v. Badger Mut.
Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581.
                                B.    Sentence Credit
                              1.     General principles
       ¶22   Statutory interpretation begins with the plain meaning

of the statute.         State ex rel. Kalal v. Circuit Court for Dane
Cnty.,    2004   WI     58,    ¶45,    271     Wis. 2d         633,      681     N.W.2d       110.
Context and structure of the statute are also important to the
meaning of the statute.             Id., ¶46.
       ¶23   Tallying and awarding sentence credit originated as a
matter of equal protection.                  See Klimas v. State, 75 Wis. 2d
244, 249, 249 N.W.2d 285 (1977) (holding that an indigent person
who could not make bail was denied a liberty interest if not
given sentence credit for all time spent in custody).                                  Sentence
credit 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. Beets, 124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985).
       ¶24   When      sentence      credit       is        applied      at     the    time    of
sentencing,      in    this    case     either         at    the    sentencing         for     the
misdemeanors     or     at    the    later    sentencing           for    the    felony,      the
                                             10
                                                                       No.    2013AP1345-CR



circuit      court    should      apply    sentence          credit   to     the    term    of
incarceration.         See State v. Wolfe, 2001 WI App 66, ¶1, 242
Wis. 2d      426,     625    N.W.2d       655    (credit       must    be     applied       to
incarceration term, not consecutive stayed sentence); Wis. Stat.
§ 973.155(3) (computing custody as if it were served time in the
institution to which the defendant has been sentenced).
       ¶25    In    deciding    whether         to   award     sentence      credit    under
Wis. Stat. § 973.155, a court must make two determinations:                                (1)
whether      the    defendant     was     "in    custody"      for    the    period    under
consideration, and (2) whether the custody was "in connection
with   the    course    of    conduct      for       which    sentence      was    imposed."
State v. Marcus Johnson, 2007 WI 107, ¶32, 304 Wis. 2d 318, 735
N.W.2d 505.          "Custody" means a detention status for which a
defendant is subject to an escape charge if he leaves the place
of detention.         State v. Magnuson, 2000 WI 19, ¶25, 233 Wis. 2d
40, 606 N.W.2d 536.
                             2.    Obriecht's custody
       ¶26    Whether Obriecht was "in custody" is not where the
challenge lies in this case; but rather, whether the custody was
"in connection with the course of conduct for which sentence was
imposed" is our focus.            In that regard, we begin with Wis. Stat.
§ 973.155(1)(a), which provides in relevant part:

       "actual days spent in custody" includes, without
       limitation by enumeration, confinement related to an
       offense   for   which   the  offender   is ultimately
       sentenced, or for any other sentence arising out of
       the same course of conduct, which occurs:

              1.     While the offender is awaiting trial;


                                            11
                                                                             No.     2013AP1345-CR


             2.     While the offender is being tried; and

            3.   While the offender is awaiting imposition of
       sentence after trial.
In order for the sentence to be "in connection with the course
of conduct for which sentence was imposed," there must be a
factual connection between the custody and the sentence.                                     State
v. Elandis Johnson, 2009 WI 57, ¶65, 318 Wis. 2d 21, 767 N.W.2d
207.
       ¶27   When custody is at least "in part due to the conduct

resulting in [a] new conviction," a court must award sentence
credit under Wis. Stat. § 973.155(1)(b).                          State v. Hintz, 2007
WI App 113, ¶11, 300 Wis. 2d 583, 731 N.W.2d 646.                                        Here, the
sentence for the felony conviction was issued subsequent to the
sentences     for    the        misdemeanor        convictions          as     a     consecutive
sentence.
       ¶28   Because       all        of    Obriecht's           custody           was    not     in
connection with both the misdemeanor and felony sentences, it is
important     in    our    review      to    identify        to       which    sentences         the
custody      relates.           The    first       period        of     custody          began   on

February 2, 1998 when Obriecht was arrested and charged with
seven misdemeanors and one felony.                       This period of custody ended
on October 16, 1998, a period of 257 days, when he was released
on   bail.        These   257     days      have     a    factual       connection         to    the
conduct that led to the sentences issued for both misdemeanors
and felony; therefore, this period of custody was in connection
with   the    course       of     conduct      for       which    he     subsequently            was




                                              12
                                                                        No.        2013AP1345-CR



sentenced for both misdemeanor and felony convictions.                                 Elandis
Johnson, 318 Wis. 2d 21, ¶66.
        ¶29   Obriecht was convicted by a jury of all eight counts
on     June 30,   1999,     and        he    was        taken    into    custody.             On
November 19,      1999,    Obriecht         was    sentenced      on    the    misdemeanor
convictions, but sentence was withheld on the felony conviction
and Obriecht was placed on 12 years probation.                                This 142-day
period from conviction to sentencing was in connection with the
conduct that led to sentencing for misdemeanors and felony.                                   No
days     in   custody     subsequent         to     November 19,         1999         were     in
connection with the felony sentence because probation is not a
sentence.       State v. Edwards, 2013 WI App 51, ¶7, 347 Wis. 2d
526,    830    N.W.2d    109;     Wis.      Stat.       § 973.155(1)(a).              However,
Obriecht's custody did continue after sentencing on November 19,
1999,     until   he      was    released          on     bail    pending          appeal      on
December 20,      1999.         This   additional          32    days   of     custody        was
solely in connection with the misdemeanor sentences.
        ¶30   On March 21, 2001, the stay of Obriecht's misdemeanor
sentences      pending    appeal       was    lifted       and    he    was    taken         into
custody for transportation to prison to serve the sentences for
his    misdemeanor      convictions.          Pre-incarceration           custody         ended
when    he    entered    Dodge     Correctional           Institution         on     April 21,
2001, adding custody of 31 days, which is in connection with the
conduct that led to sentences for his misdemeanor convictions.
State v. Gilbert, 115 Wis. 2d 371, 380, 340 N.W.2d 511 (1983)
(concluding that the "clear intent of sec. 973.155, Stats., is
to grant credit for each day in custody regardless of the basis
                                             13
                                                                        No.   2013AP1345-CR



for the confinement as long as it is connected to the offense
for which sentence is imposed.").
       ¶31    When Obriecht reached Dodge Correctional Institution,
Obriecht had served 462 days in custody in connection with the
conduct      that    gave   rise    to    the       sentences   for     his   misdemeanor
convictions.12        The circuit court had granted Obriecht 326 days
sentence credit when he was sentenced for the misdemeanors and
the court granted an additional 31 days of sentence credit upon
transportation to Dodge Correctional Institution, for a total of
357 days sentence credit.                Therefore, 105 days that Obriecht had
been in custody were not credited.
       ¶32    On     August 17,      2001,       Obriecht's       probation      for   the

felony conviction was revoked, and he was sentenced to a seven-
year    indeterminate        sentence,         consecutive      to      the   misdemeanor
sentences he was then serving.                      No additional sentence credit
was given when he was sentenced for the felony conviction.
       ¶33    Obriecht was released from prison on parole from the
felony sentence March 22, 2011.                      On February 1, 2013, he was
returned to prison for violating the conditions of his parole.
The State asserts that sentence credit awarded during Obriecht's
most recent and final period of incarceration, following the
revocation      of    parole,      can    be    applied    only    to    time   that   may
remain for a subsequent parole.                     This argument of the State is
grounded in its interpretation of Wis. Stat. § 302.11(7).                              The

State also asserts that all of the days of custody in 1998,

       12
            See supra note 7.

                                               14
                                                                 No.     2013AP1345-CR



1999, and 2001 for which sentence credit was not awarded did not
arise from custody that was in connection with the course of
conduct that resulted in the felony sentence.
      ¶34   We note that parole revocation does not involve the
imposition of an additional criminal sanction.                         See State ex
rel. Flowers v. DHSS, 81 Wis. 2d 376, 384-86, 260 N.W.2d 727
(1978) (explaining that parole revocation is civil in nature and
that the sentence a defendant is required to serve on revocation
is the sentence for the crime of which the defendant previously
was   convicted).        The     DHA   has    limited     discretion      to   return
revoked parolees to prison up to the remainder of their original
sentence and not beyond.           Id. at 386 (stating that the element
of punishment upon revocation is tied to the sentence previously
imposed).
      ¶35   We also consider Wis. Stat. § 304.072(4) to determine
the   effect      of   parole    revocation      on   a     defendant's     sentence
because     the    statute      addresses     that    circumstance.            Section
304.072(4) provides:

           The sentence of a revoked parolee or person on
      extended supervision resumes running on the day he or
      she is received at a correctional institution subject
      to sentence credit for the period of custody in a
      jail, correctional institution or any other detention
      facility pending revocation according to the terms of
      s. 973.155.
The "sentence" to which § 304.072(4) refers is the sentence that
was issued by the circuit court subsequent to conviction.                          We
come to this conclusion because § 304.072(4) looks back at a
sentence     earlier      commenced,         i.e.,    the     sentence      "resumes


                                         15
                                                                    No.    2013AP1345-CR



running."        Therefore, when Obriecht's parole was revoked, the
seven-year       indeterminate           sentence     for      Obriecht's         felony
conviction       caused      reincarceration.          Accordingly,         the    DHA's
reincarceration order did not establish reincarceration as a new
"sentence."       Id.       Rather, it was a continuation of the sentence
meted out by the circuit court judge.                      Therefore, if Obriecht
had not received all the sentence credit that was available to
apply to the felony sentence when that sentence was imposed, he
could have received it when his parole was revoked.
      ¶36    Stated otherwise, the computation of sentence credit
is   governed     by      Wis.   Stat.   § 973.155(3)       that    provides:       "The
credit provided in sub. (1) or (1m) shall be computed as if the

convicted offender had served such time in the institution to
which he or she has been sentenced."                       The plain language of
§ 973.155(3) demonstrates that Obriecht is entitled to have the
total amount of time he must spend in prison reduced by the
amount of time he has spent in custody outside of prison when
custody is in connection with the conduct for which the sentence
is imposed.       Elandis Johnson, 318 Wis. 2d 21, ¶66.                   In addition,
when sentences are consecutive, sentence credit is not issued to
more than one sentence so long as the first sentence to be
served is sufficient to receive the sentence credit at issue.
State v. Boettcher, 144 Wis. 2d 86, 93-95, 423 N.W.2d 533 (1988)
(citing     Doyle      v.   Elsea,   658    F.2d    512,    515    (1981)    as    Doyle
interprets 18 U.S.C. § 3568 upon which § 973.155 was based).
      ¶37    As we explain, the custody first imposed should be
applied     to      the     sentence     first      imposed,       with    consecutive
                                           16
                                                                                 No.     2013AP1345-CR



sentences.         As    our   discussion          in     the    paragraphs             above    show,
Obriecht's first period of custody extended 257 days, with the
next period of custody extending 142 days.                                 Of the 399 days in
custody, the circuit court granted 326 days as sentence credit
against the misdemeanor sentences.
      ¶38    The        next      periods       of        custody           occurred           between
sentencing       and    release     on      bail    pending          appeal,       32     days,     and
between     revocation         of      bail        and     transportation                 to    Dodge
Correctional Institution, 31 days.                          These periods of custody
occurred     solely       in   connection          with        conduct       relating          to   the
misdemeanor sentences because Obriecht was not being held for
the felony conviction, on which the court had withheld sentence

when it placed him on probation.
      ¶39    When       Obriecht      was     transported            to    Dodge        Correctional
Institution, Obriecht had 73 days of custody in connection with
the course of conduct that resulted in sentences for misdemeanor
convictions and felony conviction.                        He also had 63 days of pre-
incarceration           custody     that       occurred          after           sentencing         for
misdemeanors and his probation for the felony conviction.
      ¶40    The       circuit      court      granted          31        days     of     additional
sentence     credit        when       Obriecht           was     transported              to    Dodge
Correctional       Institution.               Because      we    apply           sentence       credit
granted     to   the     earliest        period      of    custody          eligible        for     the
credit, we apply the 31 days of credit to the 73 days of custody

yet   remaining         that   were      in    connection         with       both       misdemeanor
sentences and subsequently issued felony sentence, leaving 42
days that were in connection with the conduct that led to the
                                               17
                                                                           No.    2013AP1345-CR



felony sentence.            Stated otherwise, we apply granted sentence
credit to the longest outstanding days of custody that were in
connection with the conduct that led to the sentence.
      ¶41    As the State pointed out at oral argument, and as we
have explained above, not all of the custody was in connection
with the felony.          After all sentence credit was awarded, there
remained    42     days   that      was    in    connection         with    the     course    of
conduct that led to both the misdemeanor and felony sentences
and   63    days     that     was    in        connection         with    the     misdemeanor
sentences, a period of 105 days.                      Therefore, because the felony
sentence     was     consecutive          to     the       misdemeanor       sentences       and
because 63 of the 105 days of custody that remained were in

connection        with    the    misdemeanors,              only     42     days     were    in
connection with the felony sentence.
      ¶42    Obriecht's       continuation            of    the    felony    sentence       upon
parole revocation is the seven-year indeterminate, consecutive
sentence    the     circuit     court      imposed         on     August 17,      2001.      See
Flowers,     81    Wis. 2d      at    386       (stating          "punishment      in     parole
revocation is attributable to the crime for which the parolee
was    originally           convicted           and        sentenced");          Wis.     Stat.
§ 304.072(4)       (stating      sentence        of    a    revoked       parolee       "resumes
running").        Therefore, we conclude that on February 1, 2013 when
Obriecht's parole was revoked and he was returned to prison, he
should have received 42 days credit for custody that was in
connection with conduct that led to the felony sentence, which
sentence was available to accept such credit.                             To do otherwise,
would be unfair to Obriecht and cause him to suffer a longer
                                                18
                                                                   No.   2013AP1345-CR



period       of    incarceration      for   the    felony     conviction    than   the
circuit court ordered.
       ¶43         The court of appeals and the State, in part, relied
on Wis. Stat. § 302.11, titled "Mandatory release," to hold that
Obriecht's sentence credit applied to reduce his parole rather
than        reincarceration.           Obriecht,        353   Wis. 2d      542,    ¶12.
Specifically, the court of appeals held that the § 302.11(7)(b)
language that a parolee "shall be incarcerated for the entire
period of time determined by the reviewing authority" would be
violated          if   the   court    applied     the   sentence   credit     to    the
reincarceration period.              Id.; § 302.11(7)(b).
       ¶44        We can see where the court of appeals found a conflict

between Obriecht's request and Wis. Stat. § 302.11(7).                       However,
we have applied the credit to the felony sentence in fairness to
Obriecht, who should have received this credit on August 17,
2001 when he was sentenced on the felony conviction.
       ¶45        Furthermore, Wis. Stat. § 302.11(7) plainly applies to
mandatory release, as indicated by its structure and statutory
history.13         Paragraph (7)(b) first states the general rule that

       13
         Mandatory release. . . .     [(7)](am) The reviewing
       authority may return a parolee released under sub. (1)
       or (1g)(b) or s. 304.02 or 304.06(1) to prison for a
       period up to the remainder of the sentence for a
       violation of the conditions of parole.    The remainder
       of the sentence is the entire sentence, less time
       served in custody prior to parole.       The revocation
       order shall provide the parolee with credit in
       accordance with ss. 304.072 and 973.155.

            (b) A parolee returned to prison for violation of
       the conditions of parole shall be incarcerated for the
       entire period of time determined by the reviewing
                                            19
                                                                     No.   2013AP1345-CR



revoked     parolees       are    not   subject    to   early    release;       the   next
sentence provides a specific example that revoked parolees are
not   subject      to    mandatory      release.        It    does   not   address     the
problem caused by custody incurred before sentencing that was
not granted at sentencing.
      ¶46    Our reading of Wis. Stat. § 302.11(7)(b) is confirmed
by statutory history.                See Cnty. of Dane v. LIRC, 2009 WI 9,
¶27, 315 Wis. 2d 293, 759 N.W.2d 571 (explaining that statutory
history     is    part     of    a   plain    meaning    analysis).        To    explain
further,     the    predecessor         to   § 302.11(7)(b)      provided    mandatory
release for revoked parolees.14                   The legislature repealed the
preceding        statute    and      replaced     it   with    language    prohibiting



      authority unless paroled earlier under par. (c).   The
      parolee is not subject to mandatory release under sub.
      (1) or presumptive mandatory release under sub. (1g).
      The period of time determined under par. (am) may be
      extended in accordance with subs. (1q) and (2).

Wisconsin Stat. § 302.11(7).
      14
        Any person on parole under this subsection may be
      returned to prison as provided in section 57.06(3) or
      57.07(2) to serve the remainder of his sentence.    He
      may earn good time on the balance of such sentence
      while so in prison, subject to forfeiture thereof for
      misconduct as herein provided.      He may again be
      released on parole thereafter under either this
      section or section 57.06 or 57.07, whichever is
      applicable.   The remainder of his sentence shall be
      deemed to be the amount by which his original sentence
      was reduced by good time.

Wisconsin Stat. § 53.11(7)(b) (1951). In 1984, the legislature
replaced earning "good time" with "entitlement to mandatory
release." See 1983 Wis. Act 528, § 9.

                                             20
                                                                   No.   2013AP1345-CR



mandatory release for revoked parolees in 1984, which explains
the specific example in the statute.15
        ¶47       Wisconsin Stat. § 302.11(7)(am) also is not helpful in
determining sentence credit under the facts before us.                       Section
302.11(7)(am) makes express reference to application of sentence
credit.           It provides for sentence credit in the context of a
revocation         order,    citing   both    Wis.    Stat.   § 304.072    and    Wis.
Stat. § 973.155.             Furthermore, the § 302.11(7)(am) reference to
"the entire sentence" does not affect our analysis.                       It refers
to the reincarceration required in Obriecht's revocation order.
However, it is Obriecht's sentence imposed by the circuit court
that is modified by sentence credit.                   Additionally, because our

interpretation of § 973.155 resolves the question of Obriecht's
sentence credit, we decline to address the issue of whether the
court        of   appeals'    application     of     § 302.11(7)    violated     equal
protection.
                                   III. CONCLUSION
        ¶48       We conclude that because Obriecht had completed the
sentences for his misdemeanor convictions when his parole from
incarceration for the felony was revoked and he first requested


        15
          A parolee returned to prison for violation of the
        conditions of parole shall be incarcerated for the
        entire period of time determined by the department
        under par. (a), unless paroled earlier under par. (c).
        The parolee is not subject to mandatory release under
        sub. (1).   The period of time determined under par.
        (a) may be extended in accordance with sub. (2).

Wis. Stat. § 53.11(7)(b) (1984); 1983 Wis. Act 528, § 6.

                                             21
                                                                                No.     2013AP1345-CR



sentence     credit,          the    only     sentence          to     which    sentence         credit
could be applied was the indeterminate sentence for the felony
conviction.            We    also     conclude          that     not    all     of    the    days     of
Obriecht's        custody       prior       to     his    2001       incarceration          at    Dodge
Correctional           Institution         were     in    connection           with    the    conduct
that   led       to    the    felony       sentence.            We     further       conclude      that
although Obriecht had 105 days of custody for which he had not
yet received sentence credit when his parole was revoked, as we
have explained, only 42 days of custody were in connection with
the    course         of     conduct        that     led        to     the     felony       sentence.
Therefore, 42 of the 105 days of custody prior to Obriecht's
2001   incarceration               should    have        been    applied        to    his    term     of

reincarceration              for     the      felony           conviction.             Wis.      Stat.
§ 973.155.            We also conclude that when a convicted defendant's
parole is revoked, the parolee's indeterminate sentence that was
issued      by    the       circuit    court        resumes          running     so    that      it   is
available to accept sentence credit.                             Wis. Stat. § 304.072(4).
Accordingly,           we    reverse        the    court        of    appeals        decision      that
affirmed the circuit court's denial of Obriecht's motion for
sentence credit.
       By    the      Court.—The       decision           of    the     court    of     appeals       is
reversed.




                                                   22
                                                                      No. 2013AP1345-CR.awb


         ¶49   ANN WALSH BRADLEY, J.              (concurring).          I agree with
the majority that when a defendant's parole is revoked, sentence
credit should be applied to reduce the term of re-incarceration
and not parole.
         ¶50   We accepted review in this case in order to address
that question so that future litigants would have clarity.                             The
petitioner asked a discreet question:

         Do the sentence credit statute and the constitutional
         protections upon which it is based require time spent
         in "custody" to be credited against time spent in
         prison, as opposed to time spent on supervision?
Answering      that      question   does   not     require     us   to    compute      the
number of days of sentence credit Obriecht should receive.

         ¶51   Nevertheless, the majority reaches out and endeavors
to count the actual days of sentence credit due Obriecht in this
unique case made complex by its multiple time periods, legal
maneuvers,         and      convictions        involved.          Numerous       reasons
illustrate the folly of the majority tackling this unbriefed
issue.
         ¶52   To begin, half of the record is missing or has been
destroyed.           Notably,    for     computation       purposes,       it    is    the
important half which covers the time periods at issue in this
case.      Instead, we are left to cobble together the events based
on   a    record     with    discrepancies       between    the     portions      of   the
record available and the parties' descriptions of events.
         ¶53   Next, this case is moot and the computation of credit
due for this defendant is meaningless.                        Because Obriecht had
completed      his    sentence      by   the    time   this    case     was     heard,   a


                                           1
                                                                               No. 2013AP1345-CR.awb


determination of the exact number of days of credit he should
have received will have no effect on him.
       ¶54        Finally,      by     unnecessarily             wading       into    the      exact
computation          of    sentence       credit         that     Obriecht      is    owed,       the
majority risks unintentionally creating precedent that could be
at    odds    with        the   significant         purposes       fulfilled         by   awarding
sentence credit.             Accordingly, I respectfully concur.
                                                    I
       ¶55        The complexity of the facts in this case is reflected

in the background provided by the majority.                               After Obriecht was
arrested and charged with seven misdemeanors and a felony, he
was in and out of custody for various reasons while awaiting
trial, after sentencing, and again while his convictions were on
appeal.           Majority      op.,     ¶¶7-10.              During   this     period      he    was
awarded sentence credit on two separate occasions.                               Id., ¶11.

       ¶56        The parties agree that Obriecht spent more time in
custody than he was awarded.                   This appeal arose from the circuit
court's decision to apply the outstanding credit to Obriecht’s
period       of    parole       rather      than        the    in-custody       period      of    his
sentence.
       ¶57        After    discussing         the       sentence       credit    statute,        the
majority      announces         that     it   must       examine       each    period     of     time
Obriecht spent in custody and determine which were related to
his felony conviction, as that is the conviction to which he
sought to apply sentence credit.                         Id., ¶28.      This is followed by
a    detailed       description        of     each       of    those   time     periods      and    a



                                                    2
                                                                           No. 2013AP1345-CR.awb


computation of the number of days that Obriecht should receive.
Id., ¶¶28-32, 37-42.

                                            II
      ¶58     The basis for the majority's computation of Obriecht's
sentence credit is shaky at best.                       Less than half of the record
has been made available for our review.                              Out of 272 record
documents, only numbers 216 through 279 were transferred to this
court.      Notably, all of the records received by this court post-
date the time periods at issue by several years.                                   Thus, the

details     of    when       Obriecht    was       in    custody     have     been      cobbled
together     from      various     court       filings         and   decisions        and     the
representations of the parties.
      ¶59    Even the representations of the parties leave doubt
regarding        the   exact     dates    and       time      periods      involved.          For
example, although the parties stipulated that Obriecht had spent
an extra 107 days in custody, this court could not reproduce
that calculation.              Id., ¶17 n.11.            Instead it determines that

the actual number of days was 105.                       Id., ¶41.         Overall, little
detail is contained in the parties' briefs regarding the time
periods of Obriecht's custody as they were not disputing the
calculation of the sentence credit he was owed.
      ¶60    The       murky    record     should        not     have      been   a     problem
because     the    question      presented         to    us    did   not    require      us    to
compute days of sentence credit owed.                         The actual number at this
point is moot because the defendant has completed his sentence.
It   is   further       of     questionable        value       given    that      the   crimes
involved all occurred pre-Truth-in-Sentencing.

                                               3
                                                                No. 2013AP1345-CR.awb


      ¶61    Not only is it unnecessary, but computing the exact
number of days of sentence credit owed to Obriecht runs the risk
of undermining the significant purposes behind sentence credit.
As   this    court     has    explained,      "Wisconsin's     sentence      credit
statute has its roots in the constitutional principle of equal
protection and was an immediate response to this court's call
for action in Klimas v. State, 75 Wis. 2d 244, 249 N.W.2d 285

(1977)."     State v. Floyd, 2000 WI 14, ¶20, 232 Wis. 2d 767, 606
N.W.2d 155.

      ¶62    In Klimas, the court addressed a defendant's claim for

sentence credit for the time he spent in pre-trial confinement
because he could not afford bail.                 The court acknowledged that
this situation raised equal protection concerns, explaining that
"[t]he failure to credit pre-trial time or pre-sentence time in
custody as the result of indigency means that persons similarly
situated except for financial means are subject to different
periods of confinement for the same crime."                 Klimas, 75 Wis. 2d
at   248.     It     then    determined    that    "[t]he   obvious    method     of
rectifying the inequality is to credit the preconviction time in
partial fulfillment of the sentence imposed upon conviction."
Id. at 249.
      ¶63    Since     Klimas,    courts      have     acknowledged    that     the
purpose     behind    awarding    sentence     credit    extends    beyond    equal
protection,     encompassing       fairness       as   well.       "[C]onfinement
credit is designed to afford fairness——that a person not serve
more time than that for which he is sentenced."                State v. Beets,
124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985); see also State v.

                                          4
                                                                        No. 2013AP1345-CR.awb


Johnson, 2009 WI 57, ¶31, 318 Wis. 2d 21, 767 N.W.2d 207 ("Wis.

Stat. § 973.155 is designed to prevent a defendant from serving
more time than his sentence or his sentences call for."); State
v. Martel, 2003 WI 70, ¶24, 262 Wis. 2d 483, 664 N.W.2d 69 ("the
remedial purpose of the sentence credit statute was 'to provide
sentence      credit     in   a   wide   range      of    situations'      in    order    to
'afford fairness' to defendants").
       ¶64    The equal protection and fairness concerns underlying
Wis. Stat. § 973.155 suggest that to the extent possible, a

defendant should receive sentence credit for each day spent in
custody.       To do otherwise would permit defendants with enough
money to pay bail to serve shorter sentences than those that do
not,   and     would     cause    some   defendants        to   spend     more    time    in
custody than the sentence they received.
       ¶65    Here, the parties stipulated that Obriecht is entitled
to   107     days   of   sentence    credit.            Nevertheless,      the   majority
concludes that Obriecht spent an extra 105 days in custody but
can receive credit for only 42 days.                     Neither the record nor the

arguments present a clear reason for doing so.                      This unnecessary
reduction      of    sentence      credit        runs    counter   to     the    policies
underlying sentence credit which provide that credit should be
awarded for as many days in custody as possible and that a
person serve no more time than that for which he is sentenced.
                                            III
       ¶66    In contrast to the majority, I would not endeavor to
compute the exact sentence credit that Obriecht is owed.                              Given
the murky nature of the record and the lack of briefing on the

                                             5
                                                                No. 2013AP1345-CR.awb


subject, any attempted computation is a gamble.                   Because there
is no need to conduct such a computation to answer the question
at issue in this case, I would not risk creating precedent that
could     be       used   to   diminish     the   weighty   concerns   underlying
sentence credit.           Accordingly, I respectfully concur.
        ¶67    I    am    authorized   to    state   that   Justice    SHIRLEY    S.
ABRAHAMSON and Justice N. PATRICK CROOKS join this concurrence.




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