State v. William Peters Myers

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 9, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1454-CR Cir. Ct. No. 2018CF482

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WILLIAM PETERS MYERS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: JOHN M. WOOD, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1454-CR

¶1 PER CURIAM. William Myers appeals an amended judgment of
conviction in which the circuit court removed language from the original judgment
stating that Myers’ sentence would be concurrent to certain other sentences.
Myers also appeals the court’s order denying his postconviction motion seeking
sentence credit based on the original judgment of conviction. Myers does not
persuade us that the circuit court erred in amending the judgment. Accordingly,
we affirm.

Background

¶2 The relevant historical facts are not in dispute.

¶3 On October 2, 2018, Myers was sentenced for three offenses in Fond
du Lac County cases 16CF270 and 16CF280. The 16CF270/280 sentences were:
(1) six months of jail time; (2) ninety days of jail time; and (3) a four-year term of
imprisonment consisting of one year of initial confinement and three years of
extended supervision. All of the 16CF270/280 sentences were made consecutive
to one another.

¶4 On October 3, 2018, Myers was sentenced for an additional offense
in Fond du Lac County case 15CF572. The 15CF572 sentence was a two-year
term of imprisonment consisting of eighteen months of initial confinement and six

2
No. 2019AP1454-CR

months of extended supervision. It was made consecutive to the 16CF270/280
sentences.1

¶5 On October 23, 2018, Myers was sentenced in this case. When
imposing sentence, the circuit court adopted the parties’ joint recommendation for
a six-year term of imprisonment consisting of two years of initial confinement and
four years of extended supervision. The court also adopted the parties’ joint
recommendation that the sentence be made consecutive to Myers’ 15CF572
sentence but concurrent to any other sentence Myers was currently serving.
Accordingly, the court entered a judgment of conviction stating that Myers’
sentence was consecutive to the 15CF572 sentence but concurrent to any other
sentence he was serving.

¶6 Subsequent to the entry of the judgment, the department of
corrections sent a letter to the circuit court requesting clarification. The
department pointed out that the 16CF270/280 sentences and the 15CF572 sentence
were all consecutive to one another, and that the court had imposed Myers’
sentence in this case consecutive to the 15CF572 sentence. The department stated
that, under these circumstances, Myers’ sentence in this case would be consecutive
to the 16CF270/280 sentences as well. The circuit court amended the judgment of
conviction so that it omitted any reference to Myers’ sentence being concurrent to
other sentences.

1
Because Myers’ sentences included prison time, any jail time would be served in
prison. See WIS. STAT. § 973.03(2) (2017-18) (“A defendant sentenced to the Wisconsin state
prisons and to a county jail or house of correction for separate crimes shall serve all sentences
whether concurrent or consecutive in the state prisons.”). All references to the Wisconsin
Statutes are to the 2017-18 version unless otherwise noted.

3
No. 2019AP1454-CR

¶7 Myers brought a postconviction motion in which he requested
sentence credit based on the original judgment of conviction. He asserted that the
amended judgment was inconsistent with the circuit court’s pronouncement at
sentencing.

¶8 The circuit court denied Myers’ motion. The court found that the
intent of the parties’ joint sentencing recommendation was to ensure that Myers’
sentence in this case was consecutive to his 15CF572 sentence, and the court
agreed with the department of corrections that, because Myers’ sentence was
consecutive to the 15CF572 sentence, it could not be concurrent to his
16CF270/280 sentences. Myers appealed.

Discussion

¶9 The potential issues in this appeal have been narrowed by a
concession that Myers makes in his reply brief. However, to provide context for
that concession, we first summarize the parties’ broader arguments.

¶10 Myers contends that the circuit court lacked authority to amend the
judgment of conviction to make his sentence in this case consecutive to the
16CF270/280 sentences, contrary to the court’s pronouncement at sentencing. He
argues that the amended judgment violates his rights to finality and against double
jeopardy. Myers argues, as he did in the circuit court, that the original judgment
must be reinstated, entitling him to additional sentence credit.

¶11 The State counters that the circuit court properly amended the
judgment of conviction because circuit courts have authority to modify an illegal
sentence. The State contends that the sentence the court originally imposed was
an impossibility and, therefore, illegal. The State further argues that Myers

4
No. 2019AP1454-CR

forfeited his double jeopardy argument by not raising that argument in the circuit
court. Finally, the State argues that, regardless of forfeiture, there was no double
jeopardy violation.

¶12 In his reply brief, Myers concedes that he “agrees that if the original
sentence was illegal that the court could correct it without violating [his] right to
finality and against double jeopardy.” Myers disagrees, however, that the sentence
was illegal.

¶13 Given this concession, we conclude that the dispositive issue is
whether Myers’ sentence as originally imposed was an illegal sentence. We note
that the above-quoted language from Myers’ reply brief also appears to concede
that the circuit court has authority to correct an illegal sentence. Regardless, even
if Myers did not concede that proposition, there is no doubt that the circuit court
has such authority. As the State points out, our supreme court has stated that
circuit courts have authority to modify a sentence “‘to correct formal or clerical
errors or an illegal or a void sentence at any time.’” See State v. Crochiere, 2004
WI 78, ¶12, 273 Wis. 2d 57, 681 N.W.2d 524 (quoted source omitted), abrogated
on other grounds by State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d
828; see also Harbor, 333 Wis. 2d 53, ¶35 n.8 (“[A] circuit court has authority to
modify a sentence even though no new factor is presented, such as when the court
determines that the sentence is illegal or void.”).

¶14 The question remains whether Myers’ sentence as originally
imposed was an illegal sentence, thus giving the circuit court authority to correct
the sentence. We review this question of law de novo. See State v. Klubertanz,
2006 WI App 71, ¶26, 291 Wis. 2d 751, 713 N.W.2d 116.

5
No. 2019AP1454-CR

¶15 Myers contends that his sentence as originally imposed was not
illegal because it was authorized by WIS. STAT. § 973.15(2). He points to the
statutory language stating that “the court may impose as many sentences as there
are convictions and may provide that any such sentence be concurrent with or
consecutive to any other sentence imposed at the same time or previously.” See
§ 973.15(2)(a) (emphasis added). Myers argues that this statutory language
authorized the circuit court to impose his sentence in this case concurrent with his
16CF270/280 sentences.

¶16 The State contends that Myers’ sentence as originally imposed was
an illegal sentence because it was not possible to serve such a sentence. The State
argues, as we understand it, that it was impossible to serve a sentence that was
both consecutive to the 15CF572 sentence and concurrent with the 16CF270/80
sentences given that: (1) the 15CF572 and 16CF270/280 sentences were all
consecutive to one another, and (2) the 16CF270/280 sentences had to be served
before the 15CF572 sentence because they were the first sentences imposed. The
State argues that the only way Myers’ sentence in this case could conceivably be
served as originally imposed would be by splitting the initial confinement portion
of the sentence, contrary to State v. Bagnall, 61 Wis. 2d 297, 212 N.W.2d 122
(1973), superseded by statute on other grounds, as stated in State v. Rabe, 96
Wis. 2d 48, 56, 291 N.W.2d 809 (1980). In Bagnall, our supreme court concluded
that “a court cannot split a sentence and provide for only part of a term to be
served concurrently with another.” See Bagnall, 61 Wis. 2d at 312.

¶17 We are more persuaded by the State’s argument than we are by
Myers’ argument.

6
No. 2019AP1454-CR

¶18 First, Myers fails to demonstrate that there is not a Bagnall problem
with his sentence as originally imposed. Myers asserts that here, unlike in
Bagnall, the circuit court’s “original sentence did not make the original sentence
itself partially concurrent and partially consecutive to another sentence as the trial
court did in Bagnall.” However, the original sentence would have effectively split
Myers’ sentence if it was served in the only way that either party has suggested is
conceivable: Myers first would have served part of his confinement time in this
case while he was serving his confinement time for the 16CF270/280 sentences;
he next would have served eighteen months of his confinement time for the
15CF572 sentence while not serving any time in this case; and then finally, after
completion of his confinement time in 15CF572, he would have resumed serving
his confinement time in this case.

¶19 Second, even without Bagnall, we would reject Myers’ argument
that his sentence as originally imposed was lawful because Myers never explains
how it would have been legally permissible for him to serve that sentence. As far
as we can tell based on the parties’ arguments and the record, serving that sentence
would have required the sentence to be paused, tolled, or otherwise temporarily
suspended in a manner that is not legally authorized.

¶20 Myers’ reliance on WIS. STAT. § 973.15(2) as authorizing his
original sentence is not persuasive. It is true that the statutory language provides
that the circuit court may impose “any” sentence concurrent with “any” other
sentence “imposed … previously.” See § 973.15(2)(a). But it is not reasonable to
read this language, as Myers seemingly does, to mean that any sentence may be
imposed concurrent to any other sentence previously imposed regardless of the
factual context. For example, it would be unreasonable and absurd to read the
statute to mean that a new sentence imposed in 2020 can be made concurrent with
7
No. 2019AP1454-CR

a sentence completed in 2018, even though the literal language of the statute might
seem to authorize this result. We interpret statutes to “avoid absurd, unreasonable,
or implausible results.” See Force ex rel. Welcenbach v. American Family Mut.
Ins. Co., 2014 WI 82, ¶30, 356 Wis. 2d 582, 850 N.W.2d 866. Myers provides no
argument showing it would be reasonable to interpret the statute to authorize his
sentence as originally imposed.

¶21 In sum, for the reasons stated above, we conclude that the circuit
court properly amended the judgment of conviction. Myers does not contend that
he is entitled to the sentence credit he seeks even if the court properly amended the
judgment. Thus, we address his sentence credit argument no further.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

8