MADISON, Wis. (CN) – A divided Wisconsin Supreme Court ruled Tuesday that a prisoner is not entitled to a sentence credit for time he spent outside of jail after being accidentally released during a transfer between facilities.
In the 32-page majority opinion reversing a state appeals court decision, Justice Annette Ziegler wrote that Zachary Friedlander “is not entitled to sentence credit because Friedlander, who was at liberty, could not have been subject to conviction for escape” under Wisconsin statutes.
In April 2016, Friedlander was arrested and pleaded no contest to felony bail jumping. At the time he was sentenced, he was already serving a prison sentence for an unrelated drug conviction.
Part of Friedlander’s plea agreement required him to spend eight months in Jefferson County jail for his bail-jumping charge after serving the time for his drug case at Oshkosh Correctional Institute.
However, officials at Oshkosh Correctional wrongfully released Friedlander from prison while he was being transferred to Jefferson County jail without notifying anyone at the jail.
On the outside, Friedlander met with his probation officer regularly, who never told him to report to jail. After 65 days, the Jefferson County Sheriff’s Office contacted Friedlander’s probation officer, discovered the mistake and asked the circuit court for direction as to whether Friedlander should report to jail until his original release date, and what should be done about the days he should have been incarcerated but was not.
The circuit court concluded that Friedlander needed to serve another 75 days, but Friedlander argued that he had earned sentence credit for the 65 days he spent at liberty through no fault of his own. The Wisconsin Court of Appeals agreed and reversed the circuit court decision.
The Wisconsin Supreme Court’s 5-2 ruling Tuesday, like oral arguments in December, focused largely on statutorily defining what it means for a prisoner to be “in custody.” If Friedlander was technically in custody during his 65 days outside of jail, then he is entitled to sentence credit. If he was not considered in custody, he is not entitled to a credit.
Justice Ziegler found that the determination of being in custody depends on whether a change in a defendant’s status could subject them to an escape charge, noting that “whether a defendant is at liberty through no fault of that defendant is irrelevant to a sentence credit determination.”
“Friedlander offers little to explain how the sentence credit he seeks is anything but a windfall. He seeks credit for time he spent at liberty even though the circuit court here found that he knew he was sentenced to serve additional time,” the majority ruling states.
Ziegler also found Friedlander’s reliance on equitable principles “unpersuasive,” finding no violation of his rights because the circuit court order does not require him to serve more time than he was supposed to in the first place.
Justice Shirley Abrahamson and Justice Ann Walsh Bradley countered Ziegler in dissenting opinions, although their dissents differed slightly.
Justice Abrahamson wrote that Friedlander was entitled to a sentence credit, stating that “the defendant was not aware that he was mistakenly released.”
Abrahamson also agreed with Friedlander’s point that if he left the state facility or did not respond to inquiries from his probation officer, who never told him to report back to jail, then he could have in fact been charged with escape, making his time at liberty technically “in custody.”
Justice Bradley took a different tack, writing that the majority “bucks an apparent trend in the law of our sister states and federal circuits that have adopted the equitable doctrine of credit for time erroneously spent at liberty.”
She wrote that when Friedlander “was told by word and actions that he was free to go” when he was mistakenly released, he was only taking the Wisconsin Department of Corrections “at its word.”
Bradley stated that “fundamental fairness appears to rest squarely with Friedlander,” since mistakes abounded with various state actors.
“This case presents the very ‘cat and mouse’ scenario the equitable doctrine is designed to prevent,” she wrote.
Bradley concluded, “In sum, the government, by its words and actions, told Friedlander that he was free and then took it back. Friedlander’s rehabilitation and reintegration into society should not be delayed because of the government’s errors.”