State v. Cesar Antonio Lira ( 2021 )

2021 WI 81SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP691-CR & 2019AP692-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Cesar Antonio Lira,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 394 Wis. 2d 523,950 N.W.2d 687(2020 – unpublished)
OPINION FILED: November 18, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 27, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Frederick C. Rosa
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion for a unanimous
Court.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Jacob J. Wittwer, assistant attorney general; with whom
on the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by Jacob J. Wittwer.
For the defendant-appellant, there was a brief filed by
Christopher P. August, assistant state public defender. There was
an oral argument by Christopher P. August.
2021 WI 81NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2019AP691-CR & 2019AP692-CR
(L.C. Nos. 1992CF921195 & 1999CF163)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. NOV 18, 2021
Cesar Antonio Lira, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
ZIEGLER, C.J., delivered the majority opinion for a unanimous
Court.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of an
unpublished decision of the court of appeals, State v. Lira, Nos.
2019AP691-CR & 2019AP692-CR, unpublished slip op. (Wis. Ct. App.
Sep. 29, 2020), affirming in part and reversing in part the
Milwaukee County circuit court's1 order denying Cesar Antonio
Lira's motion for sentence credit.
1 The Honorable Frederick C. Rosa presided.
Nos. 2019AP691-CR & 2019AP692-CR
¶2 Lira argues that he is entitled to sentence credit
against his 1992 and 1999 sentences for time he spent incarcerated
in Oklahoma between 2006 and 2017. According to Lira, he was "made
available" to Oklahoma and, under Wis. Stat. § 973.15(5) (2017-
18),2 he is entitled to credit for time served. In addition, Lira
claims that under Wis. Stat. §§ 304.072(5)3 and 973.155,4 he must
2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated. The full text of
Wis. Stat. § 973.15(5) is as follows:
A convicted offender who is made available to another
jurisdiction under ch. 976 or in any other lawful manner
shall be credited with service of his or her Wisconsin
sentence or commitment under the terms of s. 973.155 for
the duration of custody in the other jurisdiction.
3 The full text of Wis. Stat. § 304.072(5) is provided below:
The sentence of a revoked probationer shall be credited
with the period of custody in a jail, correctional
institution or any other detention facility pending
revocation and commencement of sentence according to the
terms of s. 973.155.
4 Wisconsin Stat. § 973.155 states, in relevant part:
(1)(a) A convicted offender shall be given credit
toward the service of his or her sentence for all days
spent in custody in connection with the course of conduct
for which sentence was imposed. As used in this
subsection, "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;
2. While the offender is being tried; and
3. While the offender is awaiting imposition of
sentence after trial.
2
Nos. 2019AP691-CR & 2019AP692-CR
receive credit for time he spent detained in Wisconsin and Texas
from 2005 to 2006.
¶3 Both Wis. Stat. §§ 973.15(5) and 304.072(5) incorporate
Wisconsin's foundational sentence-credit statute, Wis. Stat.
§ 973.155, and under § 973.155, Lira is not entitled to credit.
Neither his incarceration in Oklahoma between 2006 and 2017 nor
his detention in Wisconsin and Texas between 2005 and 2006 were
"in connection with the course of conduct for which [the 1992 and
1999 sentences were] imposed." § 973.155(1)(a). Thus, we reverse
the court of appeals and conclude that Lira is not entitled to
sentence credit.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 Over the course of 13 years, Lira transited thousands of
miles while fleeing government authorities and committed seven
separate offenses in two states. The facts, as shown by the record
and agreed upon by the parties, are stated below.
¶5 In July 1992, the Milwaukee County circuit court
sentenced Lira to 10 years' imprisonment for possession of cocaine
with intent to deliver, and he was released on parole in September
1996. Over two years later, in January 1999, Lira was arrested on
separate charges. According to the 1999 criminal complaint, Lira
was charged with being a felon in possession of a firearm,
conspiring to deliver cocaine, obstructing or resisting an
officer, and possessing with intent to distribute
§ 973.155(1)(a).
3
Nos. 2019AP691-CR & 2019AP692-CR
tetrahydrocannabinols. Lira's parole supervision in the 1992 case
was revoked as a result of the 1999 charges.
¶6 Lira pleaded guilty in May 1999 to being a felon in
possession of a firearm and conspiring to distribute cocaine. In
December 1999, the Milwaukee County circuit court sentenced Lira
to two years in prison for being a felon in possession of a firearm.
For the conspiracy charge, the court imposed and stayed a sentence
of 16 years imprisonment and placed Lira on probation for 12 years
concurrent with his incarceration. In January 2001, Lira was
released from prison and was placed on court-ordered supervision
for both the 1992 and 1999 cases——parole for the 1992 case and
probation for the 1999 case.
¶7 As a condition of his release, Lira was required to
report regularly to a Department of Corrections ("DOC") agent
overseeing his supervision. In November 2002, the DOC agent
attempted to take Lira into custody for alleged violations of his
conditions of release, namely, traveling to Illinois without the
agent's permission and possessing $55,000 in cash. In response,
Lira fled from the agent's office and escaped.
¶8 Lira's whereabouts remained unknown until January 6,
2004, when Lira was arrested by Wisconsin Department of Justice
agents and was taken into custody. On January 9, 2004, parole and
probation holds were placed on Lira for the 1992 and 1999 cases.
Lira was also charged with endangering safety by use of a dangerous
weapon.
¶9 While being transported to a medical appointment on
April 15, 2004, Lira fled officers and escaped in an awaiting
4
Nos. 2019AP691-CR & 2019AP692-CR
vehicle with his girlfriend. As a result, Lira was charged with
escape. The next day, on April 16, 2004, Lira's parole and
probation were revoked. The stay of the 16-year sentence in the
1999 case was removed, and Lira's reconfinement for the 1992 case
was ordered.
¶10 Meanwhile, Lira was driving with his girlfriend and her
child to Oklahoma. Once in Oklahoma, on April 16, 2004, Lira
initiated a high-speed car chase with police. Lira ran a road
block and crashed the vehicle he was driving. His girlfriend died
as a result of the collision. That same day, Oklahoma police
arrested Lira. He later pleaded guilty to second-degree murder,
eluding police, running a roadblock, and child abuse/neglect. On
September 29, 2004, a court in Creek County, Oklahoma, sentenced
Lira to 20 years' imprisonment for his offenses.
¶11 On or about May 22, 2005,5 Oklahoma transferred Lira to
Wisconsin on detainer to face his 2004 charges of endangering
safety and escape. On June 15, 2005, Lira was released by mistake.6
Again, Lira fled south, and on December 13, 2005, he was arrested
in San Antonio, Texas. Wisconsin filed a new charge of bail
jumping against Lira, and Lira was returned to this state on
January 11, 2006.
5 The record is not clear as to whether Lira was returned to
Wisconsin on May 19 or May 22, 2005. Because we hold that Lira is
not entitled to sentence credit in this case for his time spent in
Wisconsin and Texas in 2005 and 2006, the exact date on which Lira
was provided to Wisconsin authorities in May 2005 is not material.
6 The record is unclear whether Lira left confinement after
posting bail or if he was released on bond.
5
Nos. 2019AP691-CR & 2019AP692-CR
¶12 On March 17, 2006, after entering into a global plea
agreement on the 2004 charges of endangering safety and escape and
the 2005 charge of bail jumping, the Milwaukee County circuit court
sentenced Lira to three years of incarceration and three years of
extended supervision, both to be served consecutive to his Oklahoma
sentence. Pursuant to the Interstate Agreement on Detainers
("IAD"), entered into by both Oklahoma and Wisconsin,7 Wisconsin
returned Lira to Oklahoma on April 5, 2006, to complete the
remainder of his Oklahoma sentence. Lira remained in Oklahoma
until his sentence there was completed on June 9, 2017. He was
soon thereafter transported to Wisconsin to complete his sentences
for the 1992 and 1999 cases and the 2004 and 2005 cases. On June
16, 2017, he arrived in Wisconsin.
¶13 In September 2017, Lira filed a pro se motion for
sentence credit against his sentences in the 1992 and 1999 cases.
He argued that, under Wis. Stat. § 973.15(5), he was entitled to
sentence credit for all the time he spent in custody in Oklahoma
between April 16, 2004, when he was arrested for his Oklahoma
offenses, and June 9, 2017, when his Oklahoma sentence was
complete. The circuit court denied this request, citing lack of
administrative exhaustion.
¶14 In January 2018, Lira filed a second pro se motion for
sentence credit under Wis. Stat. § 973.15(5), this time with
records documenting his attempts to exhaust administrative
7 See Wis. Stat. § 976.05 ("Agreement on detainers"); Okla.
Stat. tit. 22, § 1347 (2020) ("Interstate Agreement on
Detainers").
6
Nos. 2019AP691-CR & 2019AP692-CR
remedies with the DOC. The circuit court denied the motion on the
merits, reasoning that the Oklahoma sentence was separate and
distinct from the 1992 and 1999 cases, and that Lira had already
received sentence credit in Oklahoma for the time spent in custody
in that state. After obtaining appointed counsel, Lira appealed
to the court of appeals. However, Lira voluntarily dismissed the
appeal in favor of filing with advice of counsel a more complete
motion for sentence credit with the circuit court. On July 27,
2018, the court of appeals dismissed Lira's appeal.
¶15 In October 2018, by appointed counsel, Lira filed a third
motion for sentence credit. He again argued that under Wis. Stat.
§ 973.15(5), he was entitled to sentence credit for all the time
spent in custody from April 16, 2004, to the end of his Oklahoma
sentence on June 9, 2017. In addition, Lira claimed that, under
Wis. Stat. §§ 973.15(5) and 304.072(4), he was entitled to credit
for time spent in Wisconsin, Texas, and Oklahoma from May 22, 2005,
when he was transferred to Wisconsin on detainer, to the completion
of his Oklahoma sentence on June 9, 2017. Finally, Lira argued
that he was entitled to credit for the time spent in Oklahoma
custody between his arrest on April 16, 2004, and his sentencing
in Oklahoma on September 29, 2004. On October 15, 2018, the
circuit court denied the motion for lack of evidence and failure
to exhaust administrative remedies.
¶16 In November 2018, Lira filed a motion for
reconsideration, arguing that he in fact did request sentence
credit from the DOC. Lira also provided additional documentation
to assist in the circuit court's inquiry. On March 25, 2019, the
7
Nos. 2019AP691-CR & 2019AP692-CR
circuit court denied the motion for reconsideration. The circuit
court reasoned that under Wis. Stat. § 973.15(5), Lira was not
"made available" to Oklahoma on April 16, 2004. Lira escaped
custody and was arrested on separate Oklahoma charges. Thus, the
circuit court denied his request for credit between April 16, 2004,
and May 22, 2005. However, with regard to Lira's request for
sentence credit between his return to Wisconsin on May 22, 2005,
and the completion of his Oklahoma sentence on June 9, 2017, the
circuit court determined that Lira had not properly presented the
issue to the DOC and therefore did not address the merits. Lira
appealed this decision, and on April 17, 2019, the court of appeals
consolidated the 1992 and 1999 cases to facilitate their review.
¶17 On September 29, 2020, the court of appeals issued a
decision affirming in part and reversing in part the circuit
court's order. Lira, Nos. 2019AP691-CR & 2019AP692-CR. First,
the court of appeals concluded that Lira properly exhausted
administrative remedies and his request for sentence credit was
not foreclosed. Id., ¶¶19-21. The State did not appeal this
determination.
¶18 Next, the court of appeals concluded that as a "convicted
offender" Lira was not "made available" under Wis. Stat.
§ 973.15(5) when he escaped from Wisconsin custody and committed
additional offenses in Oklahoma. Id., ¶¶28-32. The court of
appeals also determined that under Wis. Stat. § 973.155(1)(a),
Lira's arrest in Oklahoma was not "in connection with the course
of conduct" underlying the 1992 and 1999 cases. Id., ¶¶38-40.
Thus, Lira was not entitled to credit from April 16, 2004, to May
8
Nos. 2019AP691-CR & 2019AP692-CR
22, 2005, while in Oklahoma custody. Lira did not appeal this
conclusion.
¶19 The court of appeals continued and held that Lira was
entitled to sentence credit for the entire time spent in Oklahoma
custody between April 5, 2006, and June 9, 2017. Id., ¶¶33-35.
Citing its published decision, State v. Brown, 2006 WI App 41, 289
Wis. 2d 823, 711 N.W.2d 708, the court of appeals held that because
the State turned Lira over to Oklahoma officials on April 5, 2006,
Wisconsin had "made [Lira] available to another jurisdiction"
under Wis. Stat. § 973.15(5) and Lira qualified for credit. Id.,
¶¶33-35. Finally, the court of appeals concluded that Lira's
detainment in Wisconsin and Texas between May 22, 2005, and April
5, 2006, was sufficiently related to the 1992 and 1999 cases that
sentence credit for that time was warranted under § 973.155(1)(a).
Id., ¶¶41-46.
¶20 The State filed a petition for review with this court,
challenging the court of appeals' conclusion that sentence credit
was due in the 1992 and 1999 cases for Lira's time spent
incarcerated between May 22, 2005, and April 5, 2006, and between
April 5, 2006, and June 9, 2017. We granted the petition on
January 20, 2021.
II. STANDARD OF REVIEW
¶21 In this case, we are asked to interpret Wisconsin
statutes. "Interpretation of a statute is a question of law that
we review de novo, although we benefit from the analyses of the
9
Nos. 2019AP691-CR & 2019AP692-CR
circuit court and the court of appeals." Estate of Miller v.
Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759.
¶22 "[S]tatutory interpretation begins with the language of
the statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry. Statutory language is given its common,
ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." State ex rel. Kalal v. Cir. Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110(citations and quotations omitted). Furthermore,
statutory language is interpreted in the context in
which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid
absurd or unreasonable results. Statutory language is
read where possible to give reasonable effect to every
word, in order to avoid surplusage.
Id., ¶46 (citations omitted).
III. ANALYSIS
¶23 Lira argues, and the court of appeals agreed, that he is
entitled to sentence credit for his 1992 and 1999 convictions under
Wis. Stat. § 973.15(5) for the time he spent incarcerated in
Oklahoma between April 5, 2006, and June 9, 2017. He also claims
that, under Wis. Stat. §§ 304.072 and 973.155(1)(a), he is entitled
to approximately five months of sentence credit for the time he
was detained in Wisconsin and Texas between May 22, 2005, and April
10
Nos. 2019AP691-CR & 2019AP692-CR
5, 2006. The State contests both these points, and we will address
the issues in turn.
¶24 Notably, on appeal, Lira does not seek sentence credit
for time spent in Oklahoma custody prior to his transfer on
detainer to Wisconsin in May 2005. Sentence credit for time spent
in Wisconsin from January to April 2004, prior to Lira's escape to
Oklahoma, is also not in dispute. Further, sentence credit for
his 2004 and 2005 Wisconsin convictions is not at issue in this
case. The court is not asked to apply credit as to Lira's pre-
sentence or post-sentence confinement for his endangering safety,
escape, and bail jumping convictions.
¶25 As explained below, we reverse the court of appeals.
Lira is not entitled to sentence credit in the 1992 and 1999 cases
for his incarceration between May 22, 2005, and April 5, 2006, and
for his incarceration between April 5, 2006, and June 9, 2017.
During that period, Lira's time in custody was not "in connection
with the course of conduct for which [the 1992 and 1999 sentences
were] imposed." Wis. Stat. § 973.155(1)(a).
A. Time Spent in Oklahoma Between April 2006
and June 2017.
1. The Statutory Text
¶26 Wisconsin Stat. § 973.15 establishes miscellaneous
guidelines in setting and instituting criminal sentences. For
example, § 973.15(1) states that Wisconsin sentences "commence at
noon on the day of sentence." The statute establishes basic
calculation procedures for concurrent and consecutive sentences,
and it confirms that, if a prisoner were to escape, his time at
11
Nos. 2019AP691-CR & 2019AP692-CR
large "shall not be computed" as service of the sentence.
§ 973.15(1), (2), (2m), (7). In this context, § 973.15 includes
a provision on sentence credit when a convicted offender in
Wisconsin is transferred to another jurisdiction:
A convicted offender who is made available to another
jurisdiction under ch. 976 or in any other lawful manner
shall be credited with service of his or her Wisconsin
sentence or commitment under the terms of s. 973.155 for
the duration of custody in the other jurisdiction.
§ 973.15(5).
¶27 The statute quoted above explicitly references, and ties
its obligations to, Wis. Stat. § 973.155. This is not altogether
surprising. In Wisconsin, § 973.155 is the foundational sentence-
credit statute. See State v. Elandis Johnson, 2009 WI 57, ¶32,
318 Wis. 2d 21, 767 N.W.2d 207 (reasoning that, "[t]o be eligible
for sentence credit in Wisconsin," a defendant must comply with
the credit requirements under § 973.155(1)(a)); State v.
Friedlander, 2019 WI 22, ¶22, 385 Wis. 2d 633, 923 N.W.2d 849("[Wisconsin] Stat. § 973.155 governs when a defendant is entitled
to receive sentence credit.").
¶28 Section 973.155 is titled "Sentence credit" and includes
provisions detailing when sentence credit is due, Wis. Stat.
§ 973.155(1), (1m), (3), (4), by whom and when sentence credit is
calculated, § 973.155(2), and how a sentence credit can be
challenged, § 973.155(5), (6). See State v. Lopez, 2019 WI 101,
¶26, 389 Wis. 2d 156, 936 N.W.2d 125 ("The titles of the statutes
are not part of the statutes . . . [b]ut the titles are part of a
statute's context and can be relevant to statutory
12
Nos. 2019AP691-CR & 2019AP692-CR
interpretation." (cleaned up)); Kalal, 271 Wis. 2d 633, ¶46
("[S]tatutory language is interpreted in the context in which it
is used . . . ."). Wisconsin statutes repeatedly cite and refer
back to § 973.155 for sentence credit determinations. See, e.g.,
Wis. Stat. § 302.11(7)(am) (stating that, when revoking an
individual's parole, calculation of the remaining sentence must be
made "in accordance with . . . [s.] 973.155"); Wis. Stat. § 302.43("Good time" statute for confinement in county jails, which notes
that inmates are given credit "for time served prior to sentencing
under s. 973.155"); Wis. Stat. § 304.072(5) (noting that the period
of time spent in confinement by a revoked probationer pending
commencement of his sentence will be credited toward the sentence
"according to the terms of s. 973.155").
¶29 Section 973.155 sets a basic rule for sentence credit
determinations: a defendant will receive credit for time spent
incarcerated when that time has a factual connection to the offense
for which he or she was convicted. "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. Obriecht, 2015 WI
66, ¶23, 363 Wis. 2d 816, 867 N.W.2d 387; see also State v. Marcus
Johnson, 2007 WI 107, ¶¶35-36, 304 Wis. 2d 318, 735 N.W.2d 505(explaining the background of Wis. Stat. § 973.155 and its
enactment in the wake of a determination by this court in Klimas
v. State, 75 Wis. 2d 244, 249 N.W.2d 285 (1977), that the lack of
sentence credit can violate prisoners' equal protection rights).
Thus, § 973.155(1)(a) states that "[a] convicted offender shall be
given credit toward the service of his or her sentence for all
13
Nos. 2019AP691-CR & 2019AP692-CR
days spent in custody in connection with the course of conduct for
which sentence was imposed." This court has interpreted this
provision to include two requirements: "(1) the defendant must
show that the defendant was 'in custody'; and (2) the defendant
must show that the custody was 'in connection with the course of
conduct for which the sentence was imposed.'" Friedlander, 385
Wis. 2d 633, ¶23 (quoting § 973.155(1)(a)); see also State v.
Carter, 2010 WI 77, ¶56, 327 Wis. 2d 1, 785 N.W.2d 516 (reasoning
that § 973.155 requires a "factual connection between custody and
the conduct for which sentence is imposed," not mere "procedural
connection").
¶30 In line with the fairness principles underlying sentence
credits and Wis. Stat. § 973.155, this court has repeatedly held
that, while criminal defendants are entitled to sentence credit
for incarceration factually connected to an offense, they are not
entitled to credit already counted toward a separate and
consecutive sentence. As this court explained in State v.
Boettcher, 144 Wis. 2d 86, 96-101, 423 N.W.2d 533 (1988), when
interpreting § 973.155, the intent of sentence credit is "to make
sure that no prisoner failed to get credit for pretrial detention";
sentence credit is not intended as a workaround, reducing aggregate
lengths of sentences through "dual credit for multiple charges."
See also Obriecht, 363 Wis. 2d 816, ¶36 ("[W]hen 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.").
14
Nos. 2019AP691-CR & 2019AP692-CR
¶31 Despite these principles at the core of Wisconsin's
sentence credit law, Lira now argues, even though he was convicted
in a separate state for conduct completely unrelated to his 1992
and 1999 Wisconsin convictions, that he is entitled to over 11
years of sentence credit for his Wisconsin offenses. The law does
not countenance this result.
¶32 It is uncontested that Lira's 1992 and 1999 criminal
activities did not have a factual connection to Lira's evading
police in Oklahoma on April 16, 2004, crashing his car, and in the
process, killing an individual and endangering a child. Lira
admits that he is unable to meet the standard established under
Wis. Stat. § 973.155(1)(a) that the period of incarceration in
Oklahoma be factually "in connection with the course of conduct
for which the sentence was imposed."8 Friedlander, 385
Wis. 2d 633, ¶23.
¶33 It is also undisputed that Lira's Wisconsin sentences
ran consecutively to his Oklahoma sentences. On April 16, 2004,
Lira's parole in his 1992 conviction was revoked, and the stay was
lifted for the sentence in his 1999 conviction. From that time
onward, Lira was required to serve the period of incarceration due
in the 1992 and 1999 cases regardless of new offenses he may have
committed in 2004 and 2005. Thus, under Boettcher, 144 Wis. 2d at
100, Lira is not entitled to dual credit against both his Oklahoma
8At oral argument, in fact, Lira's attorney conceded that
Lira's conduct underlying his 1992 and 1999 offenses was "not
factually connected to his fleeing in Oklahoma . . . years later."
15
Nos. 2019AP691-CR & 2019AP692-CR
sentence and his 1992 and 1999 Wisconsin sentences for time spent
incarcerated in Oklahoma.
¶34 Lira's statutory argument relies on an exceedingly
narrow, and ultimately unconvincing, reading of Wis. Stat.
§ 973.15(5). According to Lira, § 973.15(5)'s requirement that a
"convicted offender . . . made available to another jurisdiction"
receives credit toward "his or her Wisconsin sentence" trumps the
factual-connection test under Wis. Stat. § 973.155(1)(a) and
Boettcher. Lira argues he was a "convicted offender" and he was
"made available" to Oklahoma on April 5, 2006, and thus, he is
entitled to sentence credit. Under Lira's reasoning, § 973.155
and the prohibition against dual credit simply do not apply.
¶35 However, even if a "convicted offender" is "made
available to another jurisdiction," under § 973.15(5)'s own terms,
sentence credit must conform to "the terms of s. 973.155." The
language of Wis. Stat. § 973.15(5) is unambiguous: credit is due
under the provision only if it is warranted under § 973.155, which
includes the factual-connection test found in § 973.155(1)(a).
Given that "the meaning of the statute is plain," no further
inquiry is necessary. Kalal, 271 Wis. 2d 633, ¶45. Lira did not
comply with § 973.155(1)(a), and he is attempting to receive
improper dual credit. See Boettcher, 144 Wis. 2d at 100.
2. Arguments raised by Lira and the State.
¶36 Lira argues that this plain reading of Wis. Stat.
§ 973.15(5) creates improper surplusage in Wisconsin statutes.
According to Lira, if we require, as § 973.15(5) states, that he
comply with the factual connection standard under Wis. Stat.
16
Nos. 2019AP691-CR & 2019AP692-CR
§ 973.155, section 973.15(5) would have no role or utility. A
reader could simply look to § 973.155 to determine whether sentence
credit applies.
¶37 But it was the legislature's choice to require sentence
credit under Wis. Stat. § 973.15(5) to be made "according to the
terms of s. 973.155." The legislature did not choose to create a
new standard when a convicted offender is transferred to another
jurisdiction, nor did it leave the question unresolved for the
judiciary to fashion an appropriate test. Instead, it explicitly
linked § 973.15(5) to Wis. Stat. § 973.155. We are bound to uphold
that decision. Kalal, 271 Wis. 2d 633, ¶46 ("If this process of
analysis yields a plain, clear statutory meaning, . . . the
statute is applied according to this ascertainment of its meaning."
(quotations omitted)).
¶38 It is true that when interpreting statutes, courts
should strive to "avoid surplusage." Id. "We are to assume that
the legislature used all the words in a statute for a reason."
State v. Matasek, 2014 WI 27, ¶18, 353 Wis. 2d 601, 846 N.W.2d 811.
However, Wis. Stat. § 973.15(5) is not an extraneous provision
with no utility. It clarifies an important point: when a
convicted individual in Wisconsin custody is transferred to
another jurisdiction, he is entitled to sentence credit so long as
it complies with § 973.155. This explanation is significant
because most sentence credit determinations are made immediately
after sentencing. See § 973.155(2) ("After the imposition of
sentence, the court shall make and enter a specific finding of the
number of days for which sentence credit is to be granted, which
17
Nos. 2019AP691-CR & 2019AP692-CR
finding shall be included in the judgment of conviction.").
Further, § 973.155(1)(a) includes provisions that specifically
grant credit for time spent in custody prior to sentencing. See
§ 973.155(1)(a)1.-3. (stating that credit may be owed when an
individual is in custody "awaiting trial," while "being tried,"
and while "awaiting imposition of sentence"). Without
§ 973.15(5)'s clarification, litigants or judges may have read
§ 973.155 to apply only in the pre-sentencing context. The
argument is not unknown to this court. See, e.g., State v. Lamar,
2011 WI 50, ¶30, 334 Wis. 2d 536, 799 N.W.2d 758 ("Lamar argues
that § 973.155 is inapplicable here because the statute has been
construed to govern only the award of sentence credit for pre-
sentence custody.")
¶39 Wisconsin Stat. § 973.15(5) is included in a provision
that details miscellaneous rules for dates, times, and lengths of
criminal sentences. See § 973.15(1), (2), (2m), (8). It
discusses sentences from other jurisdictions, as well as movement
of the convicted offender in and out of prison.
§ 973.15(3), (4), (7) (describing rules for concurrent or
consecutive foreign sentences and how to compute a sentence when
a prisoner escapes). The legislature made a reasonable decision
to confirm the applicability of Wis. Stat. § 973.155 while a
prisoner is serving his sentence and when he is transferred out of
the prison.
¶40 To the extent that some surplusage exists, it is well
accepted that redundancy occurs in statutes. The mere existence
of repetition cannot contravene plain language. See Kalal, 271
18
Nos. 2019AP691-CR & 2019AP692-CR
Wis. 2d 633, ¶46 ("Statutory language is read where possible to
give reasonable effect to every word, in order to avoid surplusage"
(emphasis added).); Milwaukee Dist. Council 48 v. Milwaukee
County, 2019 WI 24, ¶17 n.10, 385 Wis. 2d 748, 924 N.W.2d 153("Even if a plain meaning interpretation creates surplusage,
sometimes legislatures do create surplusage and redundancies of
language, and therefore the canon against surplusage is not
absolute."); Antonin Scalia & Brian A. Garner, Reading Law: The
Interpretation of Legal Texts 176 (2012) ("Put to a choice,
however, a court may well prefer ordinary meaning to an unusual
meaning that will avoid surplusage."). Notably, Lira's
interpretation of Wis. Stat. § 973.15(5) would wholesale eliminate
"according to the terms of s. 973.155" from the statute.
¶41 Lira also claims that this court must accept his legal
reasoning because it is supported by published precedent from the
court of appeals. We have never addressed whether Wis. Stat.
§ 973.15(5) overrides the factual-connection test of Wis. Stat.
§ 973.155(1)(a), as the court of appeals held below. Nonetheless,
under Lira's theory, this court must "defer" to the court of
appeals' interpretation under stare decisis principles.
¶42 The court of appeals in this case cited State v. Brown,
289 Wis. 2d 823, as binding precedent. See Lira, Nos. 2019AP691-
CR & 2019AP692-CR, ¶¶23, 33-35. In Brown, a Wisconsin probationer
had his probation revoked but, before beginning his Wisconsin
sentence, he was transferred to federal authorities for separate
federal offenses. 289 Wis. 2d 823, ¶3. The defendant in Brown
completed his federal sentence and was transferred back to
19
Nos. 2019AP691-CR & 2019AP692-CR
Wisconsin authorities; he then moved for sentence credit for his
time spent in federal prison. Id., ¶¶5-7. According to the court
of appeals, the government argued that because a revoked
probationer's sentence does not begin until "the probationer
enters the prison," Wis. Stat. § 973.15(5) was not yet triggered
when the defendant was transferred to federal authorities and
credit was not due. Id., ¶8 (citing Wis. Stat. § 973.10(2)(b)
(2003-04)). The court of appeals rejected this approach, which
turned primarily on the coincidence of when the probationer stepped
foot in prison. Id., ¶11. However, in so doing, the court of
appeals also concluded that Wis. Stat. § 973.155's factual-
connection test "is not the correct test" when § 973.15(5) applies.
Id. The court held that if an individual is a "convicted offender"
and he is "made available to another jurisdiction," the individual
is entitled to sentence credit, notwithstanding § 973.155. Id.
¶43 As explained above, the interpretation of Wis. Stat.
§§ 973.155 and 973.15(5) provided in Brown ignores the plain
meaning of the statutes. Accordingly, to the extent that Brown
controlled the meaning and application of §§ 973.155 and 973.15(5)
prior to this decision, it is hereby overruled.
¶44 However, Lira asserts that, even if Brown were "wrongly
decided," this court must accept its legal analysis as a matter of
precedent. It is undoubtedly true that "[o]fficially published
opinions of the court of appeals. . . have statewide precedential
effect." Wis. Stat. § 752.41(2). And when this court considers
legal questions, it "benefit[s] from the analyses of the court of
appeals and circuit court." State v. Denny, 2017 WI 17, ¶46, 373
20
Nos. 2019AP691-CR & 2019AP692-CR
Wis. 2d 390, 891 N.W.2d 144. Providing due respect to the legal
acuity and experience of lower courts, we have stated that legal
interpretations accepted by the court of appeals, especially when
the interpretations are longstanding, will not be overturned
unless they are "objectively wrong."9 Wenke v. Gehl Co., 2004 WI
103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405; see, e.g., AllEnergy
Corp. v. Trempealeau Cnty. Env't & Land Use Comm., 2017 WI 52,
¶¶50-55, 375 Wis. 2d 329, 895 N.W.2d 368 (discussing both
Wisconsin Supreme Court and Wisconsin Court of Appeals precedent
in existence for over 20 years and concluding that "[n]o compelling
reason has been given to justify deviating from Wisconsin
precedent").
¶45 While respecting court of appeals precedent is an
important consideration, it is not determinative. This court has
never applied the five factors commonly used in a decision to
overturn supreme court caselaw to override an interpretation
derived solely from the court of appeals. See Bartholomew v. Wis.
Patients Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI
91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216 (describing the five
9For instance, where a decision from the court of appeals is
well-reasoned, over the course of many years significant reliance
interests have grown around the court of appeals decision, and
this court has approved of the decision in prior caselaw, respect
for precedent is of substantial importance. See, e.g., Country
Visions Coop. v. Archer-Daniels-Midland Co., 2021 WI 35, ¶¶22-28,
396 Wis. 2d 470, 958 N.W.2d 511 (analyzing rights of first refusal
for property transfers under legal principles first examined in
Wisconsin by the court of appeals (citing Wilber Lime Prods., Inc.
v. Ahrndt, 2003 WI App 259, 268 Wis. 2d 650, 673 N.W.2d 339)).
21
Nos. 2019AP691-CR & 2019AP692-CR
factors).10 Further, we have shown a repeated willingness to
interpret and apply the law correctly, irrespective of a court of
appeals decision that came to a different conclusion. See, e.g.,
State v. Ziegler, 2012 WI 73, ¶54, 342 Wis. 2d 256, 816 N.W.2d 238(withdrawing language from a published court of appeals decision
as precedential value because it was "contrary to the plain
language of [a] statute"); Manitowoc County v. Samuel J.H., 2013
WI 68, ¶5 n.2, 349 Wis. 2d 202, 833 N.W.2d 109 (concluding that
language from a published court of appeals decision must be
withdrawn because it "directly conflict[ed] with the plain
language of [a] statute"); Wenke, 274 Wis. 2d 220, ¶¶76-77
(overruling a published court of appeals decision "that
incorrectly interpreted [a statute]").
¶46 Ultimately, while "published opinions of the court of
appeals are precedential," as the state's highest court, the
supreme court "has the power to overrule, modify or withdraw
language from a published opinion of the court of appeals." Cook
v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). "The
supreme court, 'unlike the court of appeals, has been designated
10 The five factors are whether:
(1) Changes or developments in the law have undermined
the rationale behind a decision; (2) there is a need to
make a decision correspond to newly ascertained facts;
(3) there is a showing that the precedent has become
detrimental to coherence and consistency in the law; (4)
the prior decision is "unsound in principle;" or (5) the
prior decision is "unworkable in practice."
Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs.
Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216.
22
Nos. 2019AP691-CR & 2019AP692-CR
by the constitution and the legislature as a law-declaring court.'"
Id. at 189 (quoting State ex rel. La Crosse Tribune v. Cir. Ct.
for La Crosse County, 115 Wis. 2d 220, 229-30, 340 N.W.2d 460(1983)). It is this court's responsibility to interpret statutes
de novo, and a plain meaning reading of Wis. Stat. §§ 973.15(5)
and 973.155 conflicts with the court of appeals decision in Brown.
See Denny, 373 Wis. 2d 390, ¶46. Brown's interpretation of
§§ 973.15(5) and 973.155 is "objectively wrong" and must be
overturned. Wenke, 274 Wis. 2d 220, ¶21.
¶47 Despite arguing forcefully against Lira's position
before the circuit court, the court of appeals, and in briefing
before this court, the State at oral argument made an abrupt change
in strategy. It asked the court to reject Lira's request for
sentence credit, but also claimed that the factual-connection test
under Wis. Stat. § 973.155(1)(a) did not apply to Wis. Stat.
§ 973.15(5). The State was apparently concerned that the correct
interpretation of § 973.15(5), as previously described, would
undermine the IAD and Wisconsin's interstate obligations.
¶48 First, we note that the State's change in legal position
is not binding upon the court. "[W]e are not bound by the parties'
interpretation of the law or obligated to accept a party's
concession of law. This court, not the parties, decides questions
of law." Carter, 327 Wis. 2d 1, ¶50. As this court explained, an
individual may receive sentence credit under Wis. Stat.
§ 973.15(5) only "according to the terms of s. 973.155" and only
upon satisfaction of the factual-connection test.
23
Nos. 2019AP691-CR & 2019AP692-CR
¶49 Furthermore, the State's concern is misplaced. The
court is in no way interpreting or applying the IAD, codified under
Wis. Stat. § 976.05. The IAD has its own provision on sentence
credit:
During the continuance of temporary custody or while the
prisoner is otherwise being made available for trial as
required by this agreement, time being served on the
sentence shall continue to run but good time shall be
earned by the prisoner only if, and to the extent that,
the law and practice of the jurisdiction which imposed
the sentence allows.
§ 976.05(5)(f).
¶50 The IAD provision could apply only if Wisconsin had
transferred Lira to Oklahoma on detainer to face sentencing in
Oklahoma. Here, it was Oklahoma that transferred Lira to Wisconsin
to face sentencing on Wisconsin charges.11 We are asked to
interpret Wis. Stat. § 973.15(5). The IAD and Wis. Stat.
§ 976.05(5)(f) are simply not at issue in this case.
¶51 In fact, the interpretation of Wis. Stat. § 973.15(5)
advanced by Lira would likely undermine, not enhance, interstate
cooperation. If a defendant is entitled to sentence credit for
the entire time he is in foreign custody so long as he was a
"convicted offender" that was "made available to [the other]
jurisdiction," Wisconsin authorities would be strongly
incentivized to not transfer prisoners to foreign jurisdictions.
By doing so, the transfer could effectively eliminate a Wisconsin
11Notably, the State itself asserts that it is "likely" that
Oklahoma, pursuant to the IAD, applied Lira's time spent on
detainer in Wisconsin and Texas toward his Oklahoma sentence.
24
Nos. 2019AP691-CR & 2019AP692-CR
sentence and produce an improper windfall for a prisoner. For
example, if Lira's legal position were correct, someone could
commit one murder in Wisconsin and another murder in Oklahoma. If
the person received consecutive sentences of the same length for
the offenses, and he or she were transferred from Wisconsin to
Oklahoma under Wis. Stat. § 973.15(5) to complete the Oklahoma
sentence, the Wisconsin sentence would in effect be erased.
Although the facts underlying this case are (thankfully) unlikely
to frequently recur, adopting Lira's legal position could
encourage Wisconsin authorities to refuse to return prisoners sent
here on detainer under the IAD. The legislature avoided such a
result by tying § 973.15(5) to § 973.155.
¶52 In all, Lira is not entitled to credit toward his 1992
and 1999 convictions for the time spent in Oklahoma serving
consecutive sentences for unrelated offenses.
B. Time Spent in Wisconsin and Texas Between
May 2005 and April 2006.
¶53 Lira also argues that under Wis. Stat. § 304.072(5) he
is entitled to sentence credit for time spent in Wisconsin and
Texas between May 22, 2005, and April 5, 2006, while on detainer
from Oklahoma. The court of appeals agreed with Lira and held
that sentence credit against the 1992 and 1999 cases was due.
Lira, Nos. 2019AP691-CR & 2019AP692-CR, ¶¶41-46.
¶54 Wisconsin Stat. § 304.072(5) states:
The sentence of a revoked probationer shall be credited
with the period of custody in a jail, correctional
institution or any other detention facility pending
25
Nos. 2019AP691-CR & 2019AP692-CR
revocation and commencement of sentence according to the
terms of s. 973.155.
¶55 Lira argues that he was a "revoked probationer" who,
between May 2005 and April 2006, was in custody "pending revocation
and commencement of his sentence." However, like Wis. Stat.
§ 973.15(5), the plain language of Wis. Stat. § 304.072(5) applies
only under "the terms of s. 973.155." Kalal, 271 Wis. 2d 633,
¶45. In turn, Wis. Stat. § 973.155(1)(a) permits sentence credit
only where confinement is factually "in connection with the course
of conduct for which the sentence was imposed."
¶56 The parties do not dispute that Oklahoma transported
Lira to Wisconsin in May 2005 to face pending charges for
endangering safety and escape. See also Lira, Nos. 2019AP691—CR
& 2019AP692-CR, ¶8 ("In mid May 2005, Oklahoma sent Lira to
Wisconsin to face trial on his outstanding Wisconsin charges.").
Although Lira was inexplicably released and fled to Texas in the
process, he eventually pleaded guilty to the 2004 and 2005 charges
in Wisconsin. He was sentenced on March 17, 2006, and, expectedly,
he was transported 19 days later to Oklahoma in order to complete
the remainder of the Oklahoma sentence. At no point in time was
Lira brought to and confined in Wisconsin or Texas because of or
on the part of the revocation order in the 1992 case, or the
removal of a stay in sentence in the 1999 case. Lira was not
transported to Wisconsin to serve his 1992 or 1999 sentences. He
was an Oklahoma prisoner sent to face trial on factually unrelated
charges initiated in 2004 and 2005. There is no dispute that the
convictions for endangering safety, escape, and bail jumping are
26
Nos. 2019AP691-CR & 2019AP692-CR
not factually connected to "the course of conduct for which [the
sentences for the 1992 and 1999 drug and firearm offenses were]
imposed." Wis. Stat. § 973.155(1)(a).
¶57 The court of appeals granted Lira credit against the
1992 and 1999 sentences for his time in Wisconsin and Texas while
on detainer because the 2004 endangering safety charge
precipitated the revocation in the 1992 case and the removal of
the stay in sentence in the 1999 case. According to the court of
appeals, "Lira's endangering safety charge in 2004 initiated the
probation hold, the revocation orders, and his eventual
reconfinement on the parole and probation violations in the 1992
and 1999 cases. This created a relationship between the cause of
confinement between Lira's 1992 and 1999 cases and his later 2004-
05 cases." Lira, Nos. 2019AP691-CR & 2019AP692-CR, ¶45 (citations
omitted).
¶58 Yet this court has repeatedly held that the test under
Wis. Stat. § 973.155(1)(a) is a factual one. Carter, 327
Wis. 2d 1, ¶56 (requiring "factual connection between custody and
the conduct for which sentence is imposed"). Mere "procedural
connection" is insufficient to warrant sentence credit. Id.¶59 In State v. Elandis Johnson, a criminal defendant was on
bond pending sentencing for a marijuana trafficking charge. 318
Wis. 2d 21, ¶¶5-6. After breaking the conditions of bond once
before, he was charged with possessing marijuana and also bail
jumping. Id., ¶7. The defendant remained in custody for a time,
and received concurrent sentences for the initial trafficking
charge, the marijuana possession charge, and the bail jumping
27
Nos. 2019AP691-CR & 2019AP692-CR
charge. Id., ¶¶8, 10, 12. He was on bond pending resolution of
the drug trafficking charge and he was charged with bail jumping.
In addition, the defendant was sentenced to concurrent sentences
for the charges at the same hearing. Despite these clear
procedural connections, this court determined that the defendant's
time in custody after being arrested for possessing marijuana and
bail jumping were not "factually connected" to the trafficking
charge under Wis. Stat. § 973.155 and credit was not due. Id.,
¶¶3, 24 (noting that the period of custody was "tied directly to
only [the marijuana possession and bail jumping]").
¶60 Similarly, in State v. Beets, a criminal defendant was
charged with burglary which "triggered [a] probation hold" for a
separate drug offense. 124 Wis. 2d 372, 378-79, 369 N.W.2d 382(1985). Although the defendant received credit against the
burglary charge while he was in custody awaiting sentencing on
both the burglary and drug offenses, as soon as he was sentenced
for the drug offense and began serving time in connection with
that offense, "any connection" to the burglary charge was
"severed." Id. at 379. This is despite the clear procedural
connection between the drug and burglary offenses. The burglary
charge "initiated the scrutiny into Beets' background that
resulted in the probation hold, the revocation, and the ultimate
concurrent drug sentences." Id. at 378-79; see also Marcus
Johnson, 304 Wis. 2d 318, ¶¶76-77 (holding, in a criminal battery
case, that time spent in juvenile commitment which would have
occurred "even if the . . . battery had not occurred" did not
28
Nos. 2019AP691-CR & 2019AP692-CR
justify sentence credit toward the battery offense, despite "[t]he
fact that [the defendant] was on signature bond").
¶61 By contrast, when custody of an individual is at least
in part factually connected to an offense, this court has not been
hesitant to provide credit under Wis. Stat. § 973.155. For
example, in State v. Carter, this court granted credit to a
defendant who was detained in another state for both a probation
violation in that state and a Wisconsin warrant. 327 Wis. 2d 1,
¶62. The custody resulted "in part from the Wisconsin warrant,"
and the factual-connection test was met. Id., ¶79.
¶62 Here, the court of appeals cites a mere procedural
connection between the 1992 and 1999 cases and the 2004 endangering
safety charge to justify credit. It asserted that the endangering
safety charge legally "initiated" Lira's reconfinement for the
1992 and 1999 cases. However, just as the defendant in Elandis
Johnson was charged with bail jumping and was detained while on
bond for a separate charge, and the defendant in Beets was
sentenced to a drug offense only as a result of a burglary charge,
simply because the 1992 and 1999 sentences occurred under legal
procedure because of Lira's choice to endanger safety in 2004,
does not mean that he was transferred to Wisconsin on May 22, 2005,
as a matter of fact for the 1992 and 1999 sentences. Unlike the
defendant's custody in Carter, Lira was not sent to Wisconsin on
a detainer to finish serving his 1992 and 1999 sentences. Rather,
he was transferred to Wisconsin to face the 2004 and 2005 charges
of endangering safety, escape, and bail jumping.
29
Nos. 2019AP691-CR & 2019AP692-CR
¶63 Despite the close procedural ties between the 1992,
1999, 2004, and 2005 offenses, Lira would have been transferred on
detainer to Wisconsin "even if the. . . [1992 and 1999 offenses]
had not occurred." Marcus Johnson, 304 Wis. 2d 318, ¶76.
Wisconsin Stat. § 973.155(1)(a) does not apply, and Lira is not
entitled to sentence credit under Wis. Stat. §§ 304.072(5) or
973.155 for any time spent in custody in Wisconsin and Texas
between May 22, 2005, and April 5, 2006.
IV. CONCLUSION
¶64 Lira argues that he is entitled to sentence credit
against his 1992 and 1999 cases for time spent incarcerated in
Oklahoma between 2006 and 2017. According to Lira, he was "made
available" to Oklahoma and, under Wis. Stat. § 973.15(5), he is
entitled to credit for time served. In addition, Lira claims that
under Wis. Stat. §§ 304.072(5) and 973.155, he must receive credit
for time spent detained in Wisconsin and Texas from 2005 to 2006.
¶65 Both Wis. Stat. §§ 973.15(5) and 304.072(5) incorporate
Wisconsin's foundational sentence-credit statute, Wis. Stat.
§ 973.155, and under § 973.155, Lira is not entitled to credit.
Neither his incarceration in Oklahoma between 2006 and 2017 nor
his detention in Wisconsin and Texas between 2005 and 2006 were
"in connection with the course of conduct for which [the 1992 and
1999 sentences were] imposed." § 973.155(1)(a). Thus, we reverse
the court of appeals, and conclude that Lira is not entitled to
sentence credit.
30
Nos. 2019AP691-CR & 2019AP692-CR
By the Court.—The decision of the court of appeals is
reversed.
31
Nos. 2019AP691-CR & 2019AP692-CR
1