author: WEDEMEYER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Eric Benjamin Gardner, Defendant-Appellant.
    Court of Appeals

      No. 2005AP1372-CR.

      Submitted on briefs March 7, 2006.

      Decided April 11, 2006.

    2006 WI App 92
    (Also reported in 715 N.W.2d 720.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael K. Gould, assistant state public defender, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general by David J. Becker, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   WEDEMEYER, PJ.

¶ 1. Eric Benjamin Gardner appeals from a judgment entered after he pled no contest to one count of injury by intoxicated use of a motor vehicle, contrary to Wis. Stat. § 940.25(l)(am) (2003-04). Gardner claims that § 940.25(l)(am) is unconstitutional. Because Gardner has failed to establish that this statute as applied to him is unconstitutional, we affirm.

BACKGROUND

¶ 2. On December 20, 2003, Gardner crashed the motor vehicle he was driving into a tree a few blocks from his home. Michelle Marino, who was riding in the front passenger seat of Gardner's vehicle, was severely injured as a result of the crash. Gardner told officers at the scene that he must have fallen asleep at the wheel. He insisted that he only had one beer and had not ingested any other controlled substances. He consented to a test of his blood.

¶ 3. Approximately three hours after the crash, Gardner's blood was drawn for testing. No alcohol was detected in his blood, but substantial amounts of cocaine and the metabolites of cocaine were found. In March 2004, Gardner was charged with one count of injury by intoxicated use of a vehicle (great bodily harm), in violation of Wis. Stat. § 940.25(l)(am).

¶ 4. He filed a motion to dismiss the charge on the basis that the statute was unconstitutional. The trial court denied the motion to dismiss and Gardner entered a no contest plea to the single charged count. He was sentenced to eight years in prison, consisting of four years of initial confinement, followed by four years of extended supervision. Judgment was entered. Gardner now appeals.

DISCUSSION

¶ 5. Gardner challenges the constitutionality of Wis. Stat. § 940.25(l)(am) & (2)(a) on the basis that the statute violates his due process rights and constitutes cruel and unusual punishment. He contends that the statutes create presumptions of guilt and shift the burden of proving innocence to the defendant, thereby violating his due process rights. See Tot v. United States, 319 U.S. 463 (1943). He also argues that the statute creates a "status offense" by eliminating the need to prove causation. We reject Gardner's challenges and affirm the judgment of conviction.

¶ 6. In challenging the statutes at issue here, Gardner must overcome the presumption that legislative enactments are constitutional. State v. Cole, 2003 WI 112, ¶ 11, 264 Wis. 2d 520, 665 N.W.2d 328. In applying such a principle, we will indulge in "every presumption to sustain the law if at all possible," and will resolve any doubts in favor of upholding the constitutionality of the challenged statute. Id. (citation omitted). Gardner also bears the burden of proving that the statute is unconstitutional 'beyond a reasonable doubt. Id. Thus, he bears a heavy burden. Our review of the constitutionality of the statutes involved here presents a question of law that we review de novo. Id., ¶ 10.

¶ 7. The statute at issue here provides in pertinent part:

940.25 Injury by intoxicated use of a vehicle.
(1) Any person who does any of the following is guilty of a Class F felony:
(am) Causes great bodily harm to another human being by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(2)(a) The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e).

A. Presumption Argument.

¶ 8. Gardner's main contention is that the statutory scheme creates "rebuttable and irrebuttable presumptions of guilt," which violate his constitutional right to due process. The State responds that the statute does not create any presumptions; rather, the statute simply defines a criminal offense and an affirmative defense to that offense. We agree with the State.

¶ 9. In addressing this issue, it is first necessary to define what a presumption is and when a presumption denies a criminal defendant due process. A presumption allows a "trier of fact to determine the existence of an element of the crime — that is, an 'ultimate' or 'elemental' fact — from the existence of one or more 'evidentiary' or 'basic' facts." Ulster County Court v. Allen, 442 U.S. 140, 156 (1979). The presumption can be permissive, which "allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one," id. at 157, or it can be mandatory, requiring that the trier of fact "must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts," id.

¶ 10. In general, a permissive presumption is constitutional as long as there is a rational connection between the basic fact and the elemental fact. Id. at 165. A mandatory presumption, however, whether conclusive or rebuttable, is not constitutional because it relieves the State of its burden to prove every element of an offense beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 521-24 (1979).

¶ 11. In looking at the crime defined by the statute challenged here, we conclude that no presumptions exist. The offense defined in Wis. Stat. § 940.25(l)(am) has two elements, which the State must prove beyond a reasonable doubt: (1) the defendant operated a vehicle with "a detectable amount of a restricted controlled substance in his or her blood"; and (2) the defendant's operation of the vehicle caused great bodily harm to the victim. Section 940.25(2)(a) creates an affirmative defense that will absolve the defendant of all liability if he or she can prove by a preponderance of the evidence that great bodily harm would have occurred even if he or she had been exercising due care and had not had a detectable amount of a controlled substance in his or her blood.

¶ 12. The elements of the crime do not provide the State with any presumptions so as to relieve the State of its burden to establish the two elements beyond a reasonable doubt. Likewise, the language of the statute does not direct the fact finder to presume the existence of either of the two elements that Wis. Stat. § 940.25(1)(am) creates from proof of any basic, or evidentiary fact. Rather, the statute simply defines the elements of the offense. See State v. Ulrich, 478 N.E.2d 812, 820 (Ohio Ct. App. 1984) ("The present statute does not presume; rather, it defines what specific conduct is prohibited."). Thus, if the State proves both elements beyond a reasonable doubt, a defendant is not presumed guilty — he or she is guilty because of proof of those elements.

B. Status Offense/Eighth Amendment.

¶ 13. Gardner also contends that the statutes here create an impermissible "status offense." See Robinson v. California, 370 U.S. 660, 682 (1962); State v. Bruesewitz, 57 Wis. 2d 475, 479-80, 204 N.W.2d 514 (1973) (Eighth Amendment prohibits "making it a crime to be 'addicted' to narcotics .... Criminal liability [cannot] be based on the mere status of addiction."). We reject Gardner's contention.

¶ 14. The statutes involved here penalize conduct, not status. The statutes prohibit operation of a vehicle with a detectable amount of a restricted controlled substance in one's blood and the causing of great bodily harm as a result of that operation of a vehicle. Thus, a defendant is not being penalized simply for being a drug addict. A defendant cannot be prosecuted under Wis. Stat. § 940.25(1)(am) unless he or she actually engages in conduct — operation of a vehicle such that great bodily harm is caused to another human being. The United States Supreme Court made it clear that Robinson does not apply in the context presented in the instant case. See Powell v. Texas, 392 U.S. 514, 532-36 (1968) (Robinson does not prevent states from punishing defendants who engage in behavior which the state has an interest in preventing; it does not prohibit penalizing conduct).

C. Causation Issue.

¶ 15. Gardner also asserts that it was improper for the legislature to enact the statute without requiring the State to prove a causal connection between the controlled substance in the blood and the injury. In other words, Gardner contends the statute should have a third element requiring the State to prove that the controlled substance caused him to be in an intoxicated condition, thus contributing to impaired driving, resulting in injury. He posits that some drugs stay in one's system long after their effect wears off.

¶ 16. Gardner is correct that the legislature did not include, within the commission of this crime, the requirement that the State prove that the defendant's ingestion of a controlled substance caused the injury. Rather, the legislature criminalized a specific act— driving with any amount of a restricted controlled substance in one's blood, where the driving causes great bodily injury to another human being. Thus, the only causal connection required is that the operation of the vehicle caused the injury. "The task of defining criminal conduct is entirely within the legislative domain and, within constitutional limitations, the legislature possesses the inherent power to prohibit and punish any act as a crime." State v. Wolske, 143 Wis. 2d 175, 187, 420 N.W.2d 60 (Ct. App. 1988) (citations omitted). Our role is not to assess whether the legislature should have required intoxication or a causal link between the drug use and the injury as elements of the offense. This court's job is to assess whether the legislative enactment as written violates any constitutional provisions. We have already concluded that the language of the statute does not create any presumptions, and that the statute did not create a "status offense." We will also conclude subsequently in this opinion, that sub. (2)(a) of the statute does not unconstitutionally shift the State's burden of proof to the defendant, but rather sets forth an affirmative defense.

¶ 17. Thus, that leaves us with the question of whether the legislature's enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way exceeds its authority. We cannot reach such a conclusion. First, Gardner fails to provide any authority to suggest that the legislature violated its authority in writing Wis. Stat. § 940.25(l)(am) & (2)(a). Second, this court recently held constitutional Wis. Stat. § 346.63(l)(am) ("No person may drive or operate a motor vehicle while: . . . The person has a detectable amount of a restricted controlled substance in his or her blood."). See State v. Smet, 2005 WI App 263, ¶ 1, 288 Wis. 2d 525, 709 N.W.2d 474. In Smet, the defendant argued that the statute was unconstitutional because it required only proof of "a detectable amount" of a banned substance and did not require proof of impairment. Id., ¶ 6. He argued that this represented "an unconstitutional overstep by the legislature in the exercise of its police power" and violated "his rights to due process and fundamental fairness." Id. We rejected Smet's argument, holding that: "The police power is the inherent power of the government to promote the general welfare, and covers all matters having a reasonable relation to the protection of the public health, safety and general welfare." Id., ¶ 7. We concluded that the statute did not violate due process and that there was a reasonable and rational basis for prohibiting the use of a banned substance while driving. Id., ¶¶ 7-20. In so ruling, we held that "the legislature reasonably and rationally could have determined that, as a class, those who drive with unprescribed illegal chemicals in their blood represent a threat to public safety." Id., ¶ 16.

¶ 18. Third, our supreme court addressed a similar issue in State v. Caibaiosai, 122 Wis. 2d 587, 594, 363 N.W.2d 574 (1985). In that case, the court discussed the causation element of the offense proscribed in Wis. Stat. § 940.09(l)(a), homicide by intoxicated use of a vehicle, which requires only a causal connection between the operation of a vehicle and the resulting injury. The homicide statute does not "include as an element of the crime a direct causal connection between the fact of defendant's intoxication .. . and the victim's death.... [P]roof of [the offense] need not require causal connection between the defendant's intoxication and the death." Caibaiosai, 122 Wis. 2d at 594.

¶ 19. The court engaged in a lengthy analysis regarding the legislature enacting certain crimes which do not require a direct causal link between intoxication and injury. Id. at 593-95. In sum, the court concluded that: "The people of this state through their legislature have determined in sec. 940.09 (1) (a) that the operation of a motor vehicle by one who is under the influence of intoxicants is a risk that will not be tolerated." Id. at 595. The same can be said for Wis. Stat. § 940.25(l)(am) — the people of this state, through their legislature, have determined that the operation of a vehicle by one who has a detectable amount of a restricted controlled substance in his or her blood is a risk that will not be tolerated. Section 940.25(l)(am) represents the legislature's decision to set a zero tolerance level for driving after using illegal drugs and, as a result, imposes a penalty when someone disregards the rules of the road when his or her driving causes great bodily harm to another human being.

¶ 20. Fourth, cases across the country challenging this same issue are repeatedly resolved in favor of upholding the legislative action. See, e.g., State v. Phillips, 873 P.2d 706, 710 (Ariz. Ct. App. 1994) ("We believe that the legislature was reasonable in determining that there is no level of illicit drug use which can be acceptably combined with driving a vehicle; the established potential for lethal consequences is too great."); Love v. State, 517 S.E.2d 53, 56 (Ga. 1999); People v. Fate, 636 N.E.2d 549, 551 (Ill. 1994) (statute's prohibition of driving a motor vehicle with any amount of a controlled substance, without regard to physical impairment, is reasonable exercise of police power to keep roadways safe); Shepler v. State, 758 N.E.2d 966, 970 (Ind. Ct. App. 2001); Loder v. Iowa DOT, 622 N.W.2d 513, 516 (Iowa Ct. App. 2000). We join those jurisdictions in concluding that our legislature acted reasonably when it created an offense prohibiting operation of a vehicle with any amount of a controlled substance in one's system. We hold that the legislature's failure to require the State to prove a direct causal link between the presence of a restricted controlled substance and the resulting injury is not fatal to the legality of the statute.

Given the vast number of contraband drugs, the difficulties in measuring the concentration of these drugs with precision from blood and urine samples and, finally, the variation in impairment from drug to drug and from person to person, we believe that the statute constitutes a reasonable exercise of the police power of the State in the interest of safe streets and highways.

Fate, 636 N.E.2d at 551.

¶ 21. With the enactment of this statute, the legislature is sending a clear message: do not do illegal drugs and drive, because if you do and the operation of your motor vehicle causes injury, you can be held criminally responsible. Based on the foregoing, we reject Gardner's contention that the statute is unreasonable because it fails to require proof that the drugs cause physical impairment which, in turn, causes the injury.

D. Affirmative Defense.

¶ 22. Finally, we address Gardner's contention that Wis. Stat. § 940.25(2)(a), creating a defense to the crime, improperly transfers the burden of proof from the State to the defendant. We reject his contention.

¶ 23. The legislature, in enacting this statute, provided a defendant with a true affirmative defense in Wis. Stat. § 940.25(2)(a), which permits a defendant to show that the presence of the illegal drug was not the cause of the accident — that the injury would have occurred even if he or she had not used illegal drugs and driven. The affirmative defense provided for in the statute constitutes an absolute defense to the criminal act. "Due process does not prohibit the state from placing the burden of proving an affirmative defense on the defendant." State v. McGee, 2005 WI App 97, ¶ 16, 281 Wis. 2d 756, 698 N.W.2d 850.

¶ 24. Accordingly, the affirmative defense here does not shift to Gardner the burden to prove that he is innocent. Rather, it requires him to prove that despite the fact that the State has satisfied the elements of the offense, Gardner cannot be held legally responsible under the statute. Based on the foregoing, we conclude that Gardner has failed to prove that the statute involved here is unconstitutional. The statute does not create presumptions of guilt, and does not shift any burden of proving innocence to Gardner. Thus, the challenged statute does not violate due process.

CONCLUSION

¶ 25. In sum, we conclude that Wis. Stat. § 940.25(l)(am) & (2)(a) do not violate Gardner's constitutional rights. The statutes do not violate due process, the Eight Amendment, or create a "status offense." Accordingly, we reject his attack on the statutes and affirm the judgment.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted. The judgment refers to the conviction as Wis. Stat. § 940.25(l)(a), but our review suggests that the correct subsection is (am), as this case was charged and pled on the basis of a detectable amount of a controlled substance in Gardner's blood.


source: Caselaw Access Project

author: NETTESHEIM, J.

license: Public Domain

text:
    Estate of Elisabeth Hagenstein, by Dallas E. Klemmer, Representative/Special Administrator, Petitioner-Appellant, v. Wisconsin Department of Health and Family Services, Respondent-Respondent.
    Court of Appeals

      No. 2005AP1303.

      Submitted, on briefs February 2, 2006.

      Decided April 12, 2006.

    2006 WI App 90
    (Also reported in 715 N.W.2d 645.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Michael D. Dean, of Michael D. Dean, LLC., of Waukesha.

      On behalf of the respondent-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Maureen McGlynn Flanagan, assistant attorney general.
    Before Snyder, EJ., Nettesheim and Anderson, JJ.
   NETTESHEIM, J.

¶ 1. The Estate of Elisabeth Hagenstein appeals a circuit court judgment that upheld a decision of the Wisconsin Department of Health and Family Services (Department) terminating her institutional Medicaid benefits. The Department determined that Elisabeth's purchase of a life estate in a part of her son's residence using the proceeds of an annuity was a sham divestment of her assets.

¶ 2. Elisabeth argues that her Medicaid benefits were terminated without proper notice in violation of her due process rights. We disagree. Despite possible confusion generated by the last of three notices provided to Elisabeth by the Washington County Department of Social Services (the County), she did not avail herself of the opportunity to be heard afforded by the first timely given notice, and she ultimately did have a full hearing on the merits of her claim. Also, giving due weight to the Department's determination, we conclude that the transaction triggering the termination of benefits was an improper divestment of Elisabeth's assets under Wis. Stat. § 49.453 (2003-04). We affirm the judgment upholding the Department's determination.

BACKGROUND

¶ 3. The relevant facts are undisputed. Elisabeth entered a Washington county nursing home in January 1998 when she was nearly ninety years old. She began receiving institutional Medicaid, or medical assistance (MA), benefits on January 23, 1998. The home she owned in Milwaukee was sold shortly thereafter. Approximately $29,500 of the proceeds was used to set up a private balloon payment annuity with her son, Rudy, who also had power of attorney (POA) for Elisabeth's affairs. The annuity was structured so that Rudy would pay Elisabeth $20 per month for five years with a balloon payment of approximately $40,440 to Elisabeth on June 1, 2003.

¶ 4. On May 21, 2003, the County sent Elisabeth a computer-generated notice informing her that her institutional MA benefits were denied for June and July 2003 because her unearned income had increased, and her income and/or countable assets for that period were projected to be over the limit. The notice pegged Elisabeth's "patient liability" at zero for the month of June, and at $500.40 beginning July 1, 2003. The notice also informed Elisabeth of her appeal rights, including "calling] the person listed at the top of this letter" and requesting a fair hearing. Elisabeth did not avail herself of these options at this point.

¶ 5. Elisabeth received the $40,440 balloon payment on June 1, 2003. On that same date, she purchased a life estate in a 66% interest of Rudy's residence. Using the life estate table in the Medicaid Eligibility Handbook (MA Handbook), the value of her life estate in that 66% interest was calculated to be $40,811.21. On June 5, 2003, Elisabeth's attorney notified the County of these transactions and Elisabeth's receipt of the balloon payment. Her attorney also furnished the relevant documents, including a quitclaim deed providing, among other things, that, if Rudy were to sell the property, Elisabeth's interest would be extinguished.

¶ 6. On June 13, 2003, the County issued a second notice regarding Elisabeth's MA institutional benefits. This one, a handwritten "Negative Notice," advised of the termination of Elisabeth's full MA institutional benefits effective June 1, 2003, and that she would be eligible only for card services until January 31, 2004. The notice explained that the County deemed the life estate transaction a divestment because Elisabeth converted an available asset into an unavailable one having no value to her. The June 13 notice also advised Elisabeth that she could request a fair hearing.

¶ 7. A third and final notice dated June 16, 2003, followed. This computer-generated notice did not reference the prior two notices and contained information inconsistent with those notices. This notice informed Elisabeth that she was eligible for Medicaid long-term care coverage for June and July 2003; that, effective June 1, 2003, her patient liability would "decrease from $520.40 to $500.40"; and that, effective July 1,2003, her institutional MA benefits would "remain the same," with $500.40 being her portion. Elisabeth again was advised of her right to request a fair hearing if she disagreed with the decision. Shortly thereafter, the County terminated reimbursements to Elisabeth's provider.

¶ 8. On July 29, 2003, Elisabeth requested a fair hearing. An attachment to the request stated that Elisabeth accepted the June 16 Notice of Decision to the extent that it determined her eligible for long-term care coverage, but that she objected to the June 13 Negative Notice determining her eligible for card services only. The attachment spelled out four grounds supporting Elisabeth's objection/request for a hearing, namely, that the County: (1) incorrectly determined that the life estate purchase was a divestment; (2) incorrectly determined that the divestment determination was contrary to MA Handbook § 14.2.2; (3) incorrectly determined that the life estate had no value although the owner still was living; and (4) failed to identify "any statute, regulation or interpretation" supporting the divestment determination.

¶ 9. An August 5, 2003 letter from the County to the Wisconsin Division of Hearings and Appeals explained that the conversion of Elisabeth's balloon payment into a life estate in a portion of a property where she likely would never reside was divestment in contemplation of qualifying for Medicaid. The letter said this conclusion reflected the State's conclusion, gleaned from "dialogue with the policy help desk."

¶ 10. On August 22, 2003, Elisabeth's fair hearing was held before an administrative law judge (AU) of the Division of Hearings and Appeals which handles fair hearings for the Department. See Wis. Admin. Code §§ HA 3.01(2), 3.02(1) (Sept. 2001). A County employee testified that when Elisabeth filed an application for MA upon entering the nursing home in January 1998, the County was informed that she "was permanent to the nursing home." Another County employee testified that what triggered the County's scrutiny was Elisabeth's purchase of a life estate in someone else's home. The ALJ expressed skepticism as to why an elderly person, already institutionalized for several years, would purchase a life estate that it "doesn't appear that she can use. I want to know what interest she really has. She can't convert it to anything. She can't sell the property. She can't make it available for her use." The ALJ questioned the purpose of the transaction "besides to solely qualify her for medical assistance," observing that it "looks like a sham transaction to me."

¶ 11. Elisabeth's attorney argued at the hearing that the life estate purchase was not a sham divestment because Elisabeth had paid fair market value and the valuation comported with the MA Handbook, which, he asserted, was the "controlling document for the County." The ALJ disagreed, stating that the state and federal statutes and the Wisconsin Administrative Code are the controlling sources, making the policy handbook "just that, a policy handbook."

¶ 12. On April 16, 2004, the ALJ affirmed the County's contention that Elisabeth's purchase of the life estate was an improper divestment of her property. The ALJ reasoned that the purchase was not an arm's-length transaction because Elisabeth had received nothing of real value, and that the structure of the transaction was "designed to exactly use the proceeds of the balloon annuity," such that the transaction was "a mere camouflage for a divestment." The ALJ also commented that the "expedient purchase of a life estate" so as to obtain MA raised public policy concerns.

¶ 13. Elisabeth timely filed a petition for judicial review and the circuit court affirmed the ALJ's ruling. Elisabeth appeals.

DISCUSSION

¶ 14. Elisabeth raises two issues on appeal: whether she was denied procedural due process by the manner in which the County terminated her MA benefits and whether her use of the annuity balloon payment to purchase the life estate in her son's residence constituted a divestment of assets, thus making her ineligible for institutional MA.

¶ 15. The MA. program is aimed at ensuring medical care for those who cannot pay for their own care. Estate of Gonwa v. Wisconsin DHFS, 2003 WI App 152, ¶ 19, 265 Wis. 2d 913, 668 N.W.2d 122. An individual's eligibility for MA benefits is determined by specific income and asset limits set forth in Wis. Stat. ch. 49. An individual may become ineligible for certain MA benefits by transferring assets in a manner prohibited by statute. Wis. Stat. § 49.453. The prohibitions are in place to prevent diversion of scarce government resources to those who can afford to pay for their own medical needs. Gonwa, 265 Wis. 2d 913, ¶¶ 19, 36. MA is administered by the Department, which may delegate responsibility to county social service departments. Wis. Stat. § 49.45(1), (2)(a)3.

A. Procedural Due Process

¶ 16. Elisabeth maintains that her MA institutional benefits were terminated without notice in violation of her Fourteenth Amendment right to due process. Specifically, Elisabeth complains about the termination of her long-term care MA benefits after receipt of the June 16 notice advising her that she was eligible for such benefits for June and July of 2003. Whether a violation of due process has occurred is a question of law that we review de novo. See Stein v. State Psychology Examining Bd., 2003 WI App 147, ¶ 16, 265 Wis. 2d 781, 668 N.W.2d 112.

¶ 17. Elisabeth's argument skirts the matter of the wholly adequate, and wholly unchallenged, May 21 notice. That notice timely advised Elisabeth in writing of the change in her benefits effective June 1. See Wis. Admin. Code § HFS 103.09(4) (Feb. 2002). The May 21 notice further advised:

Appeal rights: If you have any questions or think this action is wrong, call the person listed at the top of this letter. Also, you have the right to ask for an appeal.
Fair hearing: If you disagree with this decision, you can ask for a Fair Hearing.... Please read Your Rights and Responsibilities for . .. Medical Assistance ... on the next page for more information ....

The "Your Rights and Responsibilities" section on the next page reiterated that Elisabeth could request a fair hearing, and that if her request was received before the effective date of the termination of benefits, her benefits likely would not be stopped or reduced pending resolution of the challenge.

¶ 18. Elisabeth did not request a fair hearing or otherwise appeal the May 21 notice of the benefit termination. Accordingly, her benefits terminated effective June 1 as the notice had advised her they would. The June 16 notice may have caused confusion but was irrelevant to Elisabeth's due process claim of lack of notice, since the May 21 notice of benefit termination was timely given and apprised her of her opportunity to be heard. Furthermore, once Elisabeth did request a hearing, she was afforded a full hearing on the substantive issue of her eligibility. We see no due process violation.

B. Divestment of Assets

1. Standard of Review

¶ 19. The remaining issue is whether Elisabeth's purchase of the life estate constituted an improper divestment of her assets. We begin by addressing our standard of review. Because the appeal involves an administrative agency's decision, our review has several facets. We review the decision of the administrative agency, not that of the circuit court. Trott v. DHFS, 2001 WI App 68, ¶ 4, 242 Wis. 2d 397, 626 N.W.2d 48. An agency's factual findings will be upheld on appeal if supported by substantial evidence. Krahenbuhl v. Wisconsin Dentistry Examining Bd., 2004 WI App 147, ¶ 15, 275 Wis. 2d 626, 685 N.W.2d 591. Substantial evidence, for the purpose of reviewing an administrative decision, is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id., ¶ 16.

¶ 20. In reviewing an agency's statutory interpretations, we apply one of three distinct levels of deference — great weight, due weight or de novo review —depending on the nature of the determination. Tannler v. DHSS, 211 Wis. 2d 179, 184, 564 N.W.2d 735 (1997). Great weight deference is warranted where

1) the agency was charged by the legislature with the duty of administering the statute; 2) the interpretation of the agency is one of long standing; 3) the agency employed its specialized knowledge or expertise in forming the interpretation; and 4) the agency's interpretation will provide consistency and uniformity in the application of the statute.

Id. Due weight is appropriate if the agency conclusion does not meet all of the criteria necessary to accord it great weight deference, or if it is "very nearly one of first impression." Id. (citation omitted). Our review is de novo if the case is one of first impression for the agency and the agency lacks any special expertise. Id. We review de novo any interpretation of Wisconsin's MA statutes and regulations and their application to undisputed facts. Gonwa, 265 Wis. 2d 913, ¶ 25.

¶ 21. The parties disagree on the appropriate level of scrutiny to be given the ALJ's decision. Elisabeth urges de novo review, asserting that "choice of valuation methodologies" is a question of law, and that the ALJ assessed fair market value in a manner inconsistent with the MA Handbook. The Department submits that, regardless of whether this particular question is one of first impression, its determination is entitled at least to due weight, given the broad experience gained from carrying out its statutory responsibility for administering the MA program. We agree with the Department and, for reasons set out below, disagree with Elisabeth that the fair market value determination ran contrary to the MA Handbook. Accordingly, even if another interpretation is equally reasonable, we will sustain the ALJ's interpretation unless another is more reasonable. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 287, 548 N.W.2d 57 (1996).

2. The "Life Estate" Purchase

¶ 22. The ALJ determined that Elisabeth's purchase of a nominal life estate in a portion of real estate owned by her son using her annuity proceeds was a camouflage for a divestment of assets. Elisabeth disputes the ALJ determination on two fronts: that purchasing a life estate in and of itself is not a divestment and, further, that she received fair market value for the life estate.

¶ 23. Divestment is a transfer of assets by an institutionalized individual for less than fair market value within thirty-six months of applying for institutional MA, also called the "look-back date." Wis. Stat. §§ 49.453(l)(f)l., 49.453(2)(a). "Assets" broadly include all income and resources of the individual, including any to which the individual is entitled but does not receive because of action by the individual or his or her spouse. See § 49.453(l)(a). For institutionalized persons such as Elisabeth, divestment generally will result in ineligibility for MA benefits for nursing facility services for a period of time determined according to a statutory formula. See § 49.453(2)(a)l., (3).

¶ 24. Elisabeth first contends her purchase of the life estate was not a divestment under the provisions of the MA Handbook. She asserts that she simply converted her annuity proceeds of approximately $40,440 to a life estate to which she acquired and retained title. According to the MA Handbook, she argues, "[cjonvert-ing an asset from one form to another is not divestment." She also maintains that both the administrative code and the MA Handbook recognize that a life estate does not impact eligibility. See Wis. Admin. Code § HFS 103.06(6) (providing that an MA applicant or recipient may hold a life estate without affecting eligibility for MA), and MA Handbook, Appendix § 11.8.1.5 (providing that a life estate in homestead property is an unavailable asset). The parties agree, as do we, that the proper calculations were made to determine the value of a life estate according to the MA Handbook tables. However, it was not the computation or the choice of tables that gave the County and the ALJ pause; rather, it was the reason the claimed life estate came into being in the first place and the questionable true value of that claimed asset.

¶ 25. Indeed, Elisabeth acknowledges that if an asset is used in a manner making it unavailable and an individual does not receive fair market value for the asset, the County is instructed to treat the asset as a divestment. See MA Handbook, Appendix § 14.2.10. The Code mirrors this policy. See Wis. Admin. Code § HFS 103.065(4)(d)2.a. (providing that an institutionalized individual determined to have made a prohibited divestment will be ineligible for MA unless he or she intended to dispose of the resource at fair market value or for other valuable consideration). The essential inquiry, therefore, is whether Elisabeth disposed of her annuity proceeds in exchange for fair market value.

3. Fair Market Value

¶ 26. Using the $40,440 annuity proceeds, Elisabeth purchased a life estate in a 66% interest of her son's residential property. The parties agree that according to a table in the MA Handbook, the value of a life estate in that 66% interest was calculated to be $40,811.21. The ALJ concluded this constituted divestment because the deal was not an arm's-length transaction, but "a mere camouflage for a divestment." The ALJ stated:

[Elisabeth] has received nothing of real value here. She has no use of the property. She is not collecting rent. The structure of the transaction — an interest in a 66% share of the son's home — is designed to exactly use the proceeds of the balloon annuity.... Would [she] be willing to pay $40,800 to an unrelated third party for this life estate? There is no evidence to suggest that she will be discharged from the nursing home ....

¶ 27. Elisabeth does not challenge these findings in themselves. Rather, she argues that the ALJ's reasoning here as to fair market value runs contrary to that in two other divestment cases she cites and thus should be overturned. We disagree.

¶ 28. "Fair market value" is not defined in the medical assistance statutes. However, the MA Handbook defines it as "an estimate of the prevailing price an asset would have had if it had been sold on the open market at the time it was transferred." The term also has been defined as "the amount [the property] will sell for upon arm's-length negotiation in the open market, between an owner willing but not obliged to sell, and a buyer willing but not obliged to buy." Buettner v. DHFS, 2003 WI App 90, ¶ 18, 264 Wis. 2d 700, 663 N.W.2d 282 (citation omitted).

¶ 29. The informal findings in the text of the ALJ's decision and the record support the ALJ's conclusion that the life estate transaction was a sham transaction by which Elisabeth divested herself of her annuity balloon payment. Elisabeth had entered the nursing home facility as "permanent to the nursing home." At the time of the life estate transaction Elisabeth had been in a nursing home for five years with no realistic expectation of release. As such, Elisabeth could not use the life estate at the time of her purchase, and she had no reasonable future expectation of being able to do so. If Rudy should sell the property, Elisabeth's life estate would be extinguished. Thus, the ALJ reasonably concluded that the life estate represented nothing of significant monetary value to Elisabeth. The ALJ also noted the oddity of a 66% interest in a life estate, questioning "how in practice it works to obtain an interest in just 66% of a property." The ALJ also noted that the balloon annuity payment and the 66% life estate were virtually identical.

¶ 30. These findings are supported by substantial evidence, and we share the concerns they raise. A tenant for life is entitled to the full use and enjoyment of the property in which he or she has a life estate. 51 Am. Jur. 2d Life Tenants and Remaindermen § 28 (2000). Yet Elisabeth purchased the life estate years after being institutionalized and without any realistic hope of ever exercising any use or enjoyment of it. As a practical matter, she could not sell her 66% interest in the home Rudy and his wife occupied, and her interest in it would cease upon their sale of it. Thus, the characterization of the conveyance as an arm's-length transaction is dubious. See Siker v. Siker, 225 Wis. 2d 522, 533, 593 N.W.2d 830 (Ct. App. 1999) (where buyout provisions of a shareholders agreement held not to be an arm's-length transaction between business partners who were brothers, since term means "not closely or intimately connected or associated").

¶ 31. The two fair hearing cases Elisabeth relies upon do not salvage her position because neither presents the precise issue or factual scenario presented here. In one, the petitioner was held not to have divested herself of a life estate created years earlier simply by being admitted to a nursing home and without executing any transfer documents to that effect. See Division of Hearings and Appeals Case No. MDV-67/60174. In the other, divestment was held to have occurred because, although the petitioner's life estate was drafted to terminate when one or both of the grantors no longer could occupy the residence "due to health or other reasons," the ALJ found that the life estate did not terminate. See Division of Hearings and Appeals Case No. MDV-55/56449. Although Case No. MDV-55/56449 discussed the value of a life estate, the ALJ's express concern was that the purpose of the life estate was to avoid using the property for petitioner's medical costs. See id. at 2. The ALJ in Elisabeth's case echoed the concern that to permit such transactions offends MA's policy underpinnings. See also Gonwa, 265 Wis. 2d 913, ¶¶ 19, 36; Buettner, 264 Wis. 2d 700, ¶ 10.

¶ 32. In sum, the ALJ rested his decision on the appropriate sections of the statutes, administrative code, and the MA Handbook, and substantial evidence supports his findings. We cannot say that any other interpretation of the transaction is more reasonable than the conclusion the ALJ drew.

CONCLUSION

¶ 33. Despite the evidently mistaken third notice, Elisabeth's due process rights were not jeopardized. She did not avail herself of her right to a hearing when she received the timely first notice, and once she did request a hearing, her challenge was fully aired. We also agree that Elisabeth's so-called "life estate" elevated form over substance, and more accurately can be described as a gift of the annuity proceeds to her son. Accordingly, we affirm the judgment upholding the ALJ's ruling.

By the Court — Judgment affirmed.

       Elisabeth died during the course of proceedings below, and her estate and personal representative formally replaced her as a party for purposes of the appeal. Rather than alternate between "Elisabeth" and "the estate," from this point we will refer to the petitioner-appellant as "Elisabeth."

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Medicaid is a federal/state program. Medical assistance is one of three Medicaid programs in Wisconsin.

       The notice provided, in relevant part:
      YOU MAY REQUEST A FAIR HEARING FOR MEDICAL ASSISTANCE ... if you are not satisfied with any agency's action. You may request the fair hearing in writing or in person with the agency listed on the front of this notice. You may also write to the State Department of Administration, Division of Hearings and Appeals .... Your request must be received within ... 45 days of the action's effective date for MA....
      If your fair hearing request is received by the Division of Hearings and Appeals prior to the action's effective date, in most cases your MA... benefits will not stop or be reduced. The benefits will continue at least until the decision on your appeal is made. During this time if another, unrelated change occurs, your ... MA benefits may change. If another change occurs, you will receive a new notice. You may request another fair hearing if you are not satisfied with it. You may have to repay any excess benefits you receive while your appeal is pending if the fair hearing decision ends or reduces your benefits. You may ask not to receive continued benefits.

       The Medicaid Eligibility Handbook is a policy handbook created by the Department pursuant to Wis. Stat. § 49.45(34) designed to assist state and local agencies in implementing the federal MA program. See Estate of Gonwa v. DHFS, 2003 WI App 152, ¶ 8 n.4, 265 Wis. 2d 913, 668 N.W.2d 122.

       Wisconsin Admin. Code § HFS 103.09(4) provides:
      Timely Notice. The agency shall give the recipient timely advance notice and explanation of the agency's intention to terminate MA. This notice shall be in writing and shall be mailed to the recipient at least 10 calendar days before the effective date of the proposed action. The notice shall clearly state what action the agency intends to take and the specific regulation supporting that action, and shall explain the right to appeal the proposed action and the circumstances under which MA is continued if a fair hearing is requested.


text:
    State of Wisconsin, Plaintiff-Respondent, v. Carla L. Oglesby, Defendant-Appellant.
    Court of Appeals

      Nos. 2005AP1565-CR, 2005AP1566-CR.

      Submitted on briefs March 7, 2006.

    Decided April 12, 2006.

    2006 WI App 95
    (Also reported in 715 N.W.2d 727.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy T. Kay, of Kay and Kay Law Firm, of Brookfield.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Shunette T. Campbell, assistant attorney general.
    Before Snyder, EJ., Nettesheim and Anderson, JJ.
   NETTESHEIM, J.

¶ 1. Carla L. Oglesby appeals from the sentencing provisions of two judgments of conviction and from a postconviction order denying her motion to amend or correct the judgments of conviction. In Kenosha county case number 2004CF225, Oglesby sought to amend the confinement portion of a truth-in-sentencing (TIS) judgment of conviction from a consecutive sentence to a concurrent sentence. In Kenosha county case number 2004CM401, also a TIS case, Oglesby sought to reduce the six-year period of probation recited in the judgment of conviction to the maximum term of two years pursuant to Wis. Stat. § 973.09(2) (2003-04) .

¶ 2. The State concedes error as to Oglesby's challenge to the period of probation in 2004CM401, and we agree with the State's concession. As to the concurrent versus consecutive issue in 2004CF225, we hold that the record as a whole does not rebut the presumption of a concurrent sentence when, as here, the court did not expressly state whether the sentence is concurrent or consecutive. We reverse the order denying Oglesby's motion to amend the judgments of conviction. Accordingly, we also reverse the sentencing portion of the judgments and remand with directions that the trial court enter amended judgments of conviction stating that: (1) the period of Oglesby's probation in 2004CM401 is two years, and (2) Oglesby's period of confinement in case 2004CF225 is concurrent with the sentence imposed moments earlier in another case in the same sentencing proceeding.

FACTS AND PROCEDURAL HISTORY

¶ 3. The facts governing this appeal are not disputed. We begin with Kenosha county case number 1997CF239, a case that predated TIS. In that case, Oglesby was convicted in 1997 of five counts of uttering a forged document and one count of operating a motor vehicle without the owner's consent (OMVWOC). She was placed on probation under a withheld sentence. However, Oglesby's probation was later revoked, and she appeared before the trial court for sentencing on March 24, 2004.

¶ 4. On that same date, Oglesby entered pleas of guilty to felony charges of burglary and two counts of uttering a forged writing in 2004CF225 and a misdemeanor charge of resisting an officer in 2004CM401. After conducting an appropriate plea colloquy with Oglesby, the trial court accepted her guilty pleas. Without objection from Oglesby, the trial court immediately proceeded to sentencing on all three cases.

¶ 5. The State opened this phase of the hearing with its sentencing recommendations. In 1997CF239, the probation revocation case, the State recommended concurrent six-year sentences on the five uttering charges and a consecutive three-year sentence on the OMVWOC charge. In 2004CF225, the burglary and uttering cases, the State recommended a sentence of ten years on the burglary charge, consisting of a three-year period of confinement consecutive to the sentences in the probation revocation case followed by seven years of extended supervision. As to the uttering charges, the State recommended concurrent periods of five years' probation consecutive to the confinement on the burglary sentence. In 2004CM401, the misdemeanor resisting case, the State did not make any sentencing recommendation.

¶ 6. Oglesby's counsel then made his recommendations to the trial court. Counsel recognized that confinement was appropriate in 1997CF239, the probation revocation case. However, counsel recommended three-year sentences, not the six-year sentences requested by the State. In the remaining cases, 2004CF225 and 2004CM401, counsel requested that the court place Oglesby on probation consecutive to the prison sentences in the probation revocation case.

¶ 7. The trial court then pronounced the sentences. The court first addressed 1997CF239, the probation revocation case. The court followed the State's recommendation and sentenced Oglesby to concurrent six-year terms on the five uttering charges and a consecutive three-year term on the OMVWOC charge.

¶ 8. Next, the trial court addressed the remaining two cases, 2004CF225 and 2004CM401, which are before us on appeal. In 2004CF225, the trial court partially followed the State's recommendation by sentencing Oglesby on the burglary charge to a bifurcated sentence of three years of confinement followed by seven years of extended supervision. However, the court did not state whether the confinement portion of this sentence was concurrent or consecutive to the sentences previously imposed in 1997CF239, the probation revocation case. Nonetheless, the judgment of conviction in 2004CF225 recited the confinement portion of the sentence as a consecutive sentence. The court also partially followed the State's recommendation on the two uttering charges by placing Oglesby on probation. However, the court imposed six-year periods of probation, not the five years recommended by the State.

¶ 9. Finally, in 2004CM401, the misdemeanor resisting case, the trial court placed Oglesby on two years' probation, concurrent with the six-year probation terms ordered in 2004CF225. However, the judgment of conviction in 2004CM401 recited a six-year term of probation, contrary to the court's oral pronouncement of a two-year term.

¶ 10. Postjudgment, Oglesby sought to amend the judgments of conviction in 2004CF225 and 2004CM401. As to 2004CF225, Oglesby argued that the trial court's sentencing remarks were unambiguous and should control over the conflicting recital in the written judgment of a consecutive sentence. In support, Oglesby cited to the established case law holding that a sentence should be deemed concurrent where, as here, the trial court had not expressly stated that the sentence was consecutive. The State contended that the court's sentencing remarks were ambiguous, but that the ambiguity was resolved by the recital in the judgment of conviction that the confinement portion of the sentence was consecutive.

¶ 11. As to 2004CM401, Oglesby argued that the six-year probationary term was not only contrary to the trial court's oral pronouncement of a two-year probation term, but also was in excess of the maximum permitted by the law pursuant to Wis. Stat. § 973.09(2). As noted, the State conceded this point and agreed with Oglesby that the term of the probation should be reduced to the statutory maximum of two years.

¶ 12. The trial court denied Oglesby's motion to amend the judgment in 2004CF225 to recite that the confinement portion of the sentence is concurrent. In a terse written order the court said, "Without going into detail, but relying on the record to speak for itself, it is clear that the Court intended a consecutive sentence. The motion to amend the judgment of conviction is denied." However, this order was silent as to Oglesby's challenge to the term of the probation in 2004CM401, although the order addresses the case numbers of both cases. Oglesby appeals.

DISCUSSION

The Term of the Probation in Case No. 2004CM401

¶ 13. Oglesby argues that the six-year term of probation in 2004CM401, the misdemeanor resisting an officer case, conflicts with the trial court's oral pronouncement of a two-year term of probation at the sentencing hearing. As we have noted, the trial court's written order did not address this portion of Oglesby's challenge.

¶ 14. Ordinarily, that would call for us to remand the issue back to the trial court for a decision on the issue. But we see no need for a remand. The facts regarding this issue are not disputed by the parties, rendering the question one of law. See State v. Miller, 2004 WI App 117, ¶ 20, 274 Wis. 2d 471, 683 N.W.2d 485, review denied, 2004 WI 123, 275 Wis. 2d 296, 687 N.W.2d 523. Moreover, the State conceded error in the trial court, and it renews that concession on appeal. Finally, the State's concession is well taken since the governing statutory law clearly reveals that the six-year probation term recited in the judgment of conviction is in excess of the permitted maximum. See Wis. Stat. § 973.09(2). Statutory interpretation and the application of statutes to specific facts are questions of law we review without deference to the trial court. O'Connell v. O'Connell, 2005 WI App 51, ¶ 6, 279 Wis. 2d 406, 694 N.W.2d 429, review denied, 2005 WI 134, 282 Wis. 2d 721, 700 N.W.2d 273. We therefore decide the issue on the merits despite the absence of a trial court ruling on the matter.

¶ 15. In 2004CM401, Oglesby was charged with resisting an officer, a Class A misdemeanor. See Wis. Stat. § 946.41. Subject to certain exceptions, the maximum term of probation for a misdemeanor conviction is two years. Wis. Stat. § 973.09(2). In keeping with this statute, the trial court's oral pronouncement imposed a two-year term of probation in 2004CM401. Despite this clear and unequivocal statement, the judgment of conviction recited a probation term of six years.

¶ 16. When an unambiguous oral pronouncement at sentencing conflicts with an equally unambiguous pronouncement in the judgment of conviction, the oral pronouncement controls. State v. Lipke, 186 Wis. 2d 358, 364, 521 N.W.2d 444 (Ct. App. 1994). Thus, Oglesby's appeal, and the State's concession of error on this issue, are well taken. The trial court should have granted Oglesby's motion to amend the judgment to recite a probation term of two years. We therefore reverse the sentencing portion of the judgment of conviction in 2004CM401 and remand with instructions that the trial court enter an amended judgment reciting the maximum two-year term of probation. In all other respects, the judgment is affirmed.

Concurrent or Consecutive Confinement in Case No. 2004CF225

¶ 17. Oglesby challenges the sentencing portion of the judgment of conviction in 2004CF225, which recites that the confinement portion of the sentence is consecutive to the sentence previously imposed by the trial court in 1997CF239, the probation revocation case. Oglesby bases her argument on the same principle of law that underpins her argument on the preceding issue concerning the term of probation — an unambiguous oral pronouncement trumps a conflicting unambiguous pronouncement in the judgment of conviction. See id.

¶ 18. However, the State disputes Oglesby's contention that the trial court's oral pronouncement is unambiguous. Although we ultimately rule in Oglesby's favor, we agree with the State that the trial court's oral pronouncement was ambiguous as to whether the sentence was concurrent or consecutive. In its sentencing recommendation in 2004CF225, the State clearly asked for a period of confinement consecutive to any sentences imposed by the court in the probation revocation case. Conversely, Oglesby, while acknowledging that a prison sentence was appropriate in the probation revocation case, clearly asked for probation, not confinement, in 2004CF225. Against these competing positions, the trial court opted for confinement but failed to state whether the confinement was concurrent or consecutive to the sentences in the probation revocation case.

¶ 19. The State correctly observes that no Wisconsin case has set out the test for ambiguity in a sentencing situation such as this. Given that blank page, the State asks that we adopt the test employed in statutory construction disputes. That test inquires whether the statutory language is capable of being understood by reasonably well-informed persons in two or more different ways. State v. Peterson, 2001 WI App 220, ¶ 13, 247 Wis. 2d 871, 634 N.W.2d 893. We conclude that the State's analogy to the law of statutory construction is proper, and we adopt it. Here, given the conflicting positions of the parties as to the proper sentence in 2004CF225 and the trial court's ensuing silence on the question of whether the sentence imposed was concurrent or consecutive, we conclude that reasonably well-informed persons could construe the trial court's sentencing remarks as indicating either a concurrent or a consecutive sentence.

¶ 20. When faced with statutory construction, we look to discern the legislative intent. State v. Leitner, 2002 WI 77, ¶ 16, 253 Wis. 2d 449, 646 N.W.2d 341. From that, it follows that we should look for the trial court's sentencing intent when faced with an ambiguous oral pronouncement. This is in keeping with existing case law. State ex rel. Jacobus v. State, 208 Wis. 2d 39, 48, 559 N.W.2d 900 (1997). In Lipke, the court of appeals said that when an omission in an oral pronouncement creates an ambiguity, the appellate court is required to determine the trial court's sentencing intent from other parts of the record, including the judgment of conviction. Lipke, 186 Wis. 2d at 364.

¶ 21. Thus, we look to the full record in this case, including the judgment of conviction, in determining the trial court's sentencing intent. But in so doing, Oglesby comes to the debate with a threshold advantage. In State v. Rohl, 160 Wis. 2d 325, 466 N.W.2d 208 (Ct. App. 1991), the court noted the supreme court's holding in In re McDonald, 178 Wis. 167, 171, 189 N.W. 1029 (1922), that "where an offender is actually or constructively serving a sentence for one offense and is then ordered to serve another sentence for a different offense, the second sentence will be deemed to run concurrently with the first sentence in the absence of a statutory or judicial declaration to the contrary." Rohl, 160 Wis. 2d at 330 (emphasis added). So the question becomes whether the record, including the judgment of conviction, rebuts this presumption.

¶ 22. The State contends that the record of the sentencing hearing establishes that the trial court adopted the State's sentencing recommendation in toto, save uttering the word "consecutive." We are not persuaded. True, the duration of the court's sentence on the burglary charge and the court's grant of probation on the two uttering charges in 2004CR225 mirrored the State's request. However, the court did not follow the State's recommendation as to the length of the probation terms. The State had asked for concurrent five-year terms of probation, but the court imposed six-year terms. Moreover, as we have noted, the State did not make any sentencing recommendation in 2004CM401, the misdemeanor resisting charge, and the trial court proceeded to impose the sentence in that case without seeking any input from the State.

¶ 23. We acknowledge that these examples may represent minor deviations by the trial court from the State's recommendations, but they nonetheless make the important point that the court was not in lockstep with the State on all aspects of this sentencing. Instead, in certain matters, the court showed a degree of independence.

¶ 24. We also take note that when sentencing Oglesby on 1997CF239, the probation revocation case, the trial court expressly made the sentence on the OMWVOC charge consecutive to the five uttering charges. So this is not a case where the court uniformly ignored, overlooked, or forgot about the need to address the concurrent versus consecutive question in all instances. Yet, the court was conspicuously silent on this topic when imposing the period of confinement in 2004CF225.

¶ 25. Thus, except for the judgment of conviction, we see nothing additional in the record as a whole which sheds any helpful light on the trial court's sentencing intent on this question. Given that, this case boils down to the effect, if any, of the recital in the judgment of conviction that Oglesby's sentence in 2004CF225 was consecutive to the sentences in 1997CF239. On this point, the State seizes on the statements in Lipke and State v. Brown, 150 Wis. 2d 636, 443 N.W.2d 19 (Ct. App. 1989), that when an oral pronouncement of a sentence is ambiguous, it is proper to look at the written judgment to ascertain the court's intention. Lipke, 186 Wis. 2d at 364; Brown, 150 Wis. 2d at 641. While the court of appeals made that statement, we deem the State's reliance on it too superficial. We say this because, in the same breath, the court each time also acknowledged that the entire record had to be examined to determine the trial court's sentencing intent. Lipke, 186 Wis. 2d at 364; Brown, 150 Wis. 2d at 642. And, only after conducting that examination, did the court of appeals conclude that the underlying facts supported the recital of a consecutive sentence in the judgment of conviction. Lipke, 186 Wis. 2d at 364-65; Brown, 150 Wis. 2d at 642.

¶ 26. We address each case in some detail. In Brown, the State and Brown's attorney negotiated a plea agreement that included a joint recommendation by both parties for a sentence consecutive to a sentence on an earlier conviction. Brown, 150 Wis. 2d at 637. At the sentencing hearing, the prosecutor placed on the record a consecutive sentence recommendation to which defense counsel had agreed. Id. at 638. The trial court confirmed that Brown understood the terms of the joint recommendation and then stated, "Okay. The sentence will be then as stated on the record." Id. at 638-39 (emphasis added). Accordingly, the judgment of conviction recited a consecutive sentence. Id. at 639. Postjudgment, Brown moved to correct the judgment to provide a concurrent, rather than a consecutive, sentence. Id. The trial court denied the motion. Id.

¶ 27. On appeal, Brown relied on the supreme court's statement in McDonald that, absent a judicial declaration of a consecutive sentence, the sentence is deemed concurrent. Brown, 150 Wis. 2d at 639. He also argued under State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987), that a sentencing court's oral pronouncement trumps a conflicting pronouncement in the judgment of conviction. Brown, 150 Wis. 2d at 640. The court of appeals rejected Brown's reliance on Perry. Brown, 150 Wis. 2d at 640. The court first clarified that Perry "speaks only to the situation where an unambiguous oral pronouncement conflicts with an equally clear statement of the sentence in the written judgment." Brown, 150 Wis. 2d at 641. In that situation, the court held that the written judgment is subordinate to the oral pronouncement. Id. But where the sentencing court's oral pronouncement is ambiguous, the court held that resort to "the record as a whole" is necessary to determine the trial court's intent. Id. at 641-42. Concluding that the trial court's failure to state whether the statement was concurrent or consecutive resulted in an ambiguity, the court turned to the "record as a whole." See id.

¶ 28. In conducting that exercise, the Brown court readily concluded that the trial court intended a consecutive sentence. Id. at 642. In support, the court of appeals observed that the parties had made a joint recommendation for a consecutive sentence and that the trial court had put its stamp of approval on that recommendation by stating that the sentence was "as stated on the record." Id. In addition, the court noted that the trial court's sentencing scheme tracked the joint recommendation in all respects, save the trial court's utterance of the word "consecutive." Id. Based on this examination of the "record as a whole," the Brown court concluded that the written judgment correctly reflected the trial court's sentencing intent. Id.

¶ 29. This case is a far cry from Brown. First, although of lesser importance, there was no joint sentencing recommendation presented by the State and Oglesby. Second, and of greater importance, we have no statement from the trial court expressly, or impliedly, adopting the State's recommendation. Thirdly, as we have already noted, the trial court's sentencing did not in all respects track the State's recommendation, save the utterance of the word "consecutive." We do not see this as a Brown case.

¶ 30. Nor do we see this case as a Lipke case. There, Lipke pled no contest to a charge of operating after revocation, and the trial court sentenced him to a county jail sentence. Lipke, 186 Wis. 2d at 362. However, Lipke did not reveal, and the trial court did not otherwise know, that Lipke had moments earlier been convicted of an unrelated charge in another court resulting in a county jail sentence. Id. Apparently, the trial court later learned of the earlier sentence because the judgment of conviction recited the sentence as a consecutive sentence. Id. Postjudgment, Lipke sought to amend the judgment to recite a concurrent sentence based on the trial court's failure to expressly state that the sentence was consecutive. Id. The trial court denied the motion. Id.

¶ 31. Like Brown, Lipke relied on the Perry holding that an unambiguous oral pronouncement prevails over a conflicting recital in the judgment of conviction. Lipke, 186 Wis. 2d at 364. But, as in Brown, the court of appeals rejected that approach. Lipke, 186 Wis. 2d at 364. Citing to Brown, the court held that the trial court's failure to state whether the sentence was concurrent or consecutive rendered the oral pronouncement ambiguous, requiring the court to look to the record, including the judgment of conviction, in order to determine the trial court's sentencing intent. Lipke, 186 Wis. 2d at 365. In conducting that inquiry, the court of appeals observed that the trial court's failure to address the concurrent versus consecutive question was understandable, given that the court had not been alerted to the prior sentence. Id. In light of that history, the court concluded that the written judgment accurately reflected the court's intent. Id.

¶ 32. This is not a Lipke case because no sentencing information was withheld from the trial court. Nor did any new information come to light after the sentencing that might have influenced the sentencing.

¶ 33. In summary, in both Brown and Lipke, the court of appeals' examination of the record as a whole revealed additional relevant information, beyond the mere recital in the judgment of conviction, on the question of the trial court's intent as to whether the sentence was concurrent or consecutive. Here, our examination of the record as a whole reveals no such additional information. Instead, we are left with the bald statement in the judgment of conviction that the confinement portion of the sentence in 2004CF225 is consecutive. If the trial court had sent any kind of signal that a consecutive sentence was necessary or appropriate, we likely would rule for the State. But we do not have that signal in this case. Without more, we do not deem the bald recital of a consecutive sentence in the judgment of conviction sufficient to overcome the presumption of a concurrent sentence.

¶ 34. A search for the trial court's sentencing intent will always depend on the particular facts of the particular case. In another case under different facts, it may be that the recital of a consecutive sentence in a judgment of conviction can, standing alone, support such a sentence where the trial court's oral pronouncement is silent on the question. However, under the particular facts of this particular case, we do not conclude that the "record as a whole," including the judgment of conviction, rebuts the presumption of a concurrent sentence.

CONCLUSION

¶ 35. In 2004CM401, we reverse the order denying Oglesby's motion to amend the sentencing portion of the judgment of conviction. We also reverse the sentencing portion of the underlying judgment and remand for entry of an amended judgment to recite a probation term of two years. The balance of the judgment is affirmed.

¶ 36. In 2004CF225, we reverse the sentencing portion of the underlying judgment and remand for entry of an amended judgment to recite that the confinement portion of Oglesby's sentence is concurrent with the sentences imposed in 1997CF239. The balance of the judgment is affirmed.

By the Court. — Order reversed; judgments reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Although 1997CF239 is not before us on appeal, it forms the backdrop for Oglesby's challenge to the judgment of conviction in 2004CF225, which recites the confinement portion of Oglesby's sentence as a consecutive sentence to the sentences imposed in 1997CF239.

       In exchange for Oglesby's guilty pleas in 2004CF225, the State dismissed, but read in, twelve additional counts of uttering a forged writing.

       Wisconsin Stat. § 973.09(2)(a)2. grants the trial court discretion to increase the maximum term of probation by either one year or two years, depending on the number of additional misdemeanor convictions occurring at the same time. This option was not available to the trial court in 2004CM401 because Oglesby was not convicted of any additional misdemeanors. Instead, all of the additional convictions were felonies.

       We note that Wis. Stat. § 973.09(2m) provides that a probation term in excess of the maximum is void and the term is valid only to the extent of the maximum term authorized by statute. That might suggest that a remand for entry of an amended judgment is not necessary. Nonetheless, we deem it the better practice to have the record reflect a judgment of conviction that correctly states the term of Oglesby's probation in 2004CM401.

       The continuing vitality of this rule has been questioned. See State v. Rohl, 160 Wis. 2d 325, 331, 466 N.W.2d 208 (Ct. App. 1991), State v. Brown, 150 Wis. 2d 636, 639, 443 N.W.2d 19 (Ct. App. 1989), and State v. Morrick, 147 Wis. 2d 185, 187, 432 N.W.2d 654 (Ct. App. 1988). However, we do not have the authority to overrule a standing decision of our supreme court. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

       By way of example, the trial court could have indicated that a period of confinement beyond the sentences imposed in 1997CF239, the probation revocation case, was necessary or appropriate. Or, when rejecting Oglesby's pitch for probation in 2004CF225, the court could have said that it instead was opting for the State's recommendation.


author: CURLEY, J. 16. FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Lee Terrence Presley, Defendant-Appellant.
    Court of Appeals

      No. 2005AP359-CR.

      Oral argument March 7, 2006.

      Decided April 18, 2006.

    2006 WI App 82
    (Also reported in 715 N.W.2d 713.)

      Fine, J. concurs.

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard D. Martin, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Michael C. Sanders, assistant attorney general.
    Before Fine, Curley and Kessler, JJ.
   CURLEY, J.

¶ 1. Lee Terrence Presley appeals the judgment convicting him of delivery of a controlled substance, contrary to Wis. Stat. § 961.41(1) (cm) lg. (2003-04). He also appeals from the order partially denying him sentence credit. He submits that the trial court should have given him sentence credit on the newest charge of delivery of a controlled substance for days he spent in jail between the date his extended supervision in an earlier case was revoked and the date that the trial court sentenced him on both his revoked extended supervision and the new charge of delivery of a controlled substance. We agree and reverse.

I. Background.

¶ 2. Presley was arrested on January 2, 2004, by an undercover police officer after Presley offered to purchase cocaine for the officer. He was charged with delivery of a controlled substance, cocaine. Because Presley had been convicted of the identical crime several years earlier, he was still serving his period of extended supervision on the earlier case when he was arrested and became subject to the penalties associated with a second or subsequent offense under Wis. Stat. § 961.48. As a consequence, Presley's extended supervision was revoked on March 17, 2004, and he pled guilty to the new charge shortly thereafter. Sentencing on both the revoked extended supervision and the new charge occurred on the same day. A pretrial incarceration credit report was submitted to the court, reflecting that Presley had been in custody for 138 days from the date of his arrest until the date of sentencing. On the new charge, Presley was sentenced to thirty months of incarceration and thirty months of extended supervision. On the old case, the trial court accepted the recommendation of the Department of Corrections and reconfined him for five months and three days. The trial court ordered the sentences to be served concurrently, and gave Presley sentence credit on the new charge for the time he spent in custody from the date he was arrested to the date his supervision was revoked. Despite the trial court's pronouncement, the judgment of conviction did not reflect any credit on the new sentence. Presley filed a postconviction motion seeking sentence credit on the new charge for the time he spent incarcerated between the date of his arrest to the date of revocation on the earlier case. Later, he filed a "Corrected Rule 809.30 Postconviction Motion." In this "corrected motion," Presley argued that he was entitled to the entire 138 days sentence credit on the new charge. The postconviction court disagreed and determined that Presley was entitled to credit only for the time spent in custody between his arrest and the day his extended supervision was revoked on the new charge. Presley appeals.

II. Analysis.

¶ 3. Presley submits that he is entitled to sentence credit on the new sentence for the time he was incarcerated from the day his extended supervision was revoked until the day he was sentenced on both the new charge and on the revoked extended supervision. He claims that by analogy, the holding in State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985), supports his position. He also submits that Wis. Stat. § 973.155(l)(b) requires the sentence credit to be given to each of his sentences, and that Wis. Stat. § 304.072(4) suggests that this is the proper interpretation. Further, he argues that giving him sentence credit in this fashion is in keeping with the legislative intent. We agree.

¶ 4. We will independently review the application of the sentence credit statute to an undisputed set of facts. State v. Abbott, 207 Wis. 2d 624, 628, 558 N.W.2d 927 (Ct. App. 1996).

¶ 5. Wisconsin Stat. § 973.155 controls when an offender is entitled to sentence credit. It reads:

Sentence credit. (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.
(b) The categories in par. (a) include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 302.113 (8m), 302.114 (8m), 304.06 (3), or 973.10 (2) placed upon the person for the same course of conduct as that resulting in the new conviction.
(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 finding shall be included in the judgment of conviction. In the case of revocation of probation, extended supervision or parole, the department, if the hearing is waived, or the division of hearings and appeals in the department of administration, in the case of a hearing, shall make such a finding, which shall be included in the revocation order. (3) The credit provided in sub. (1) shall be computed as if the convicted offender had served such time in the institution to which he or she has been sentenced.
(4) The credit provided in sub. (1) shall include earned good time for those inmates subject to s. 302.43, 303.07 (3) or 303.19 (3) serving sentences of one year or less and confined in a county jail, house of correction or county reforestation camp.
(5) If this section has not been applied at sentencing to any person who is in custody or to any person who is on probation, extended supervision or parole, the person may petition the department to be given credit under this section. Upon proper verification of the facts alleged in the petition, this section shall be applied retroactively to the person. If the department is unable to determine whether credit should be given, or otherwise refuses to award retroactive credit, the person may petition the sentencing court for relief. This subsection applies to any person, regardless of the date he or she was sentenced.
(6) A defendant aggrieved by a determination by a court under this section may appeal in accordance with s. 809.30.

¶ 6. To be entitled to sentence credit under Wis. Stat. § 973.155, a defendant must have been "in custody," and the period in custody must have been "in connection with the course of conduct for which the sentence was imposed." State ex rel. Thorson v. Schwarz, 2004 WI 96, ¶ 15, 274 Wis. 2d 1, 681 N.W.2d 914 (citing. § 973.155(l)(a)).

¶ 7. The major dispute between the parties is the application of the holding of Beets to the facts in this case. In Beets, the offender was on probation for two earlier drug offenses when he was arrested for burglary. 124 Wis. 2d at 373-74. His probation was ultimately revoked about two months after his arrest for the burglary, and approximately one month after that he was sentenced on the earlier drug charges to serve two concurrent, three-year terms. Id. at 374 — 75. As a result, he was confined in the state prison. He did not return to the Milwaukee circuit court until approximately seven months later, at which time he pled guilty to the burglary charge and was sentenced to a three-year term that was to run concurrently with his earlier two sentences. Id. at 375. On the new charge, he was granted a sentence credit for the time between his arrest for the new charge of burglary and the date of his sentencing on the old charges, following the revocation of his probation. Id. He brought a postconviction motion seeking sentence credit for the days between when he began serving his sentences on the earlier charges and the date he was sentenced on the burglary charge. Id. The trial court denied his motion and he appealed. Id. at 376.

¶ 8. The supreme court took jurisdiction of Beets. The supreme court examined the underlying facts and discussed the interplay between the sentence credit statute and the facts and opined that: "The meaning of the statute is clear. It is simply that credit is to be given on the eventual sentence for all periods of custody: From arrest to trial, the trial itself, and from the date of conviction to sentence." Id. at 377. Ultimately, the supreme court determined that Beets was not entitled to sentence credit for the time he spent in prison serving his earlier sentences. The supreme court in Beets, addressing the wording in Wis. Stat. § 973.155(l)(a), "arising out of the same course of conduct," posed the question, "Is the confinement on the drug charges 'in connection with the course of conduct for which sentence was... imposed?,'" and decided that the statutory language found in § 973.155 required the answer to be "no." Beets, 124 Wis. 2d at 378. The supreme court reasoned that no credit could be given because the time spent in prison was not part of the course of conduct. Id. at 378-82. Thus, according to the supreme court, once Beets was sentenced in the earlier case, the connection between the charges ended:

The period of time at issue is from Beets' sentence on the drug convictions to the time he was sentenced on the burglary charge. The court of appeals correctly disposed of the claim for credit for this period by simply holding that any connection which might have existed between custody for the drug offenses and the burglary was severed when the custody resulting from the probation hold was converted into a revocation and sentence.

Id. at 379.

¶ 9. According to the supreme court, the lynchpin to the uncoupling of the connection between the new and old charges was the act of sentencing, not the revocation determination. Id.

¶ 10. Presley submits that Beets requires sentence credit until the day he was sentenced for the extended supervision revocation — the same day he was sentenced on the new charge — because like the offender in Beets, whose probation was revoked, he did not begin serving a sentence for the earlier crimes until the trial court sentenced him. The State insists that because of the passage of the truth-in-sentencing act, applying the Beets holding entitles Presley to credit on the new charge only for the time between the date of his arrest and the date of his extended supervision revocation because, once the extended supervision was revoked, he was serving a sentence, although its exact length was unknown. More precisely, the State argues in its brief: "In this case, Presley was sentenced in 2002, and served his term of initial confinement. He was serving his extended supervision, when he was arrested. When his extended supervision was subsequently revoked, Presley had been revoked and sentenced." The State attempts to circumvent the Beets holding by claiming that the reconfinement hearing was not a sentencing. However, whether a reconfinement hearing constitutes a "sentencing" was resolved in State v. Swiams, 2004 WI App 217, 277 Wis. 2d 400, 690 N.W.2d 452. While Swiams addressed a different issue not touching on sentence credit, the case established that a reconfinement hearing is a form of sentencing. In Swiams, after examining the history of the truth-in-sentencing law and discovering that the term "sentencing" was purposefully avoided for fear of double jeopardy concerns, this court observed that sentencing encompasses a reconfinement hearing:

In light of the need for meaningful assessment of decisions that deprive persons of their liberty, [State v.] Gallion, 2004 WI 42, ¶¶ 19, 76, 270 Wis. 2d [535,] 549-550, 572, 678 N.W.2d [197,] 203, 214, we perceive no reason why a "sentencing" under Wis. Stat. Rule 809.30 should not encompass reconfinement under Wis. Stat. § 302.113(9)(am) (2001-02).

Swiams, 277 Wis. 2d 400, ¶ 23. Thus, a reconfinement hearing is a "sentencing," and under Beets, it, not the revocation, severs the connection between the charges.

¶ 11. Further, we observe that Wis. Stat. § 973.155 does not distinguish between the three classes of revocations: parole, probation and extended supervision, and they are lumped together for identical treatment. See, e.g., § 973.155(l)(b) and (2). Thus, we are compelled to conclude that the legislature intended there to be consistent application of the sentence credit statute for all. Had the legislature wished, it could have amended § 973.155 to require sentence credit in extended supervision revocation cases to be treated differently, but it did not do so.

¶ 12. We also believe that this interpretation is consistent with and advances the underlying purpose of Wis. Stat. § 973.155 — fairness. In State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, the supreme court commented that: "The court further recognized the remedial purpose underlying the conscious effort to provide sentence credit in a wide range of situations, observing that the statute was 'designed to afford fairness' and ensure 'that a person did not serve more time than he is sentenced.'" Id., ¶ 23 (citingBeets, 124 Wis. 2d at 379).

¶ 13. Moreover, while we acknowledge that an extended supervision reconfinement hearing is a different species of sentencing than occurs at either a probation or parole revocation sentencing hearing, we can see no meaningful reason to treat an extended supervision revocation differently when determining sentence credit. We are satisfied that this interpretation results in a clearer, more logical and more easily applied rule than that proposed by the State. Thus, an offender who has had his or her extended supervision revoked is entitled to sentence credit on any new charges until the trial court "resentences" him or her from the available remaining term of extended supervision.

¶ 14. We also find support for our reasoning in Wis. Stat. § 304.072(4) and (5). These provisions state that:

(4) 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.
(5) 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.

If the State's position were to be adopted — that Presley was serving a sentence once the extended supervision was revoked — it would appear to conflict with § 304.072(4), which unambiguously states that the sentence begins once the offender is transported and received at a correctional institution, not when the revocation occurs.

¶ 15. Thus, Presley is entitled to sentence credit on the new charge from the date of his arrest until the day of sentencing on both charges because while his extended supervision was revoked, his "resentencing" had not yet occurred. This interpretation is also consistent with case law explaining the meaning of concurrent time. See, e.g., State v. Tuescher, 226 Wis. 2d 465, 469, 595 N.W.2d 443 (Ct. App. 1999) ("If the sentences are concurrent, time spent in pre-sentence custody is credited toward each sentence[,]" "[b]ut if the sentences are consecutive, time in pre-sentence custody is credited toward only one sentence." (citation omitted)). Here, it was the intent of the trial court to sentence Presley to concurrent time; therefore, he is entitled to sentence credit on both sentences. Accordingly, we reverse and remand for a recalculation of Presley's sentence credit.

By the Court. — Judgment and order reversed and cause remanded.

16. FINE, J.

{concurring). I join in the Majority opinion except as it may be perceived by some to read more into State v. Swiams, 2004 WI App 217, 277 Wis. 2d 400, 690 N.W.2d 452, than is there.

¶ 17. In Swiams, we held that for the purposes of the scope of appellate review of an order of confinement following revocation of extended supervision, see Wis. Stat. § 302.113(9)(am) ("If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence."), appellate review may be triggered by compliance with Wis. Stat. Rule 809.30(2)(b), which, requires a defendant to file "a notice of intent to pursue postconviction .. . relief' "[wjithin 20 days after the date of sentencing." Swiams, 2004 WI App 217, ¶¶ 6-23, 277 Wis. 2d at 405-420, 690 N.W.2d at 454-462. We did not hold, and I do not read the Majority opinion to say that we did, that a post-revocation confinement order is a "sentencing" for all purposes. Indeed, we pointed out that "sentencing" in Wisconsin is a coat of many colors. Id., 2004 WI App 217, ¶ 16, 277 Wis. 2d at 413-414, 690 N.W.2d at 459. Our holding in Swiams is: "In light of the need for meaningful assessment of decisions that deprive persons of their liberty, we perceive no reason why a 'sentencing' under Wis. Stat. Rule 809.30 should not encompass reconfinement under Wis. Stat. § 302.113(9)(am)." Swiams, 2004 WI App 217, ¶ 23, 277 Wis. 2d at 419, 690 N.W.2d at 461 (citation and statute date-modifier omitted). That is the Alpha and Omega of Swiams.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Presley received sentence credit on the revoked extended supervision sentence.

       Wisconsin Stat. § 973.155 was amended in 2005 and now includes subsection (lm), which concerns sentence credit as it relates to substance abuse treatment. We do not quote subsection (lm) in the text because we reference the 2003-04 version of the Wisconsin Statutes. Section 973.155(lm) provides:

        A convicted offender shall he given credit toward the service of his or her sentence for all days spent in custody as part of a substance abuse treatment program that meets the requirements of s. 16.964 (12) (c), as determined by the office of justice assistance under s. 16.964 (12) (i) for any offense arising out of the course of conduct that led to the person's placement in that program.

       We note that in the briefs filed in State v. Odom, 2005AP1840-CR, the State takes a different approach and concedes that Odom is entitled to sentence credit in an almost identical fact situation. Odom had his extended supervision in an earlier case revoked after a new charge was filed. In Odom, the State argues that when an offender is sentenced on the same day to concurrent sentences (as occurred here), he is entitled to dual credit, citing State v. Howard, 2001 WI App 137, 246 Wis. 2d 475, 630 N.W.2d 244, State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989), and Wis JI — Criminal SM 34-A.