State v. Gillie Robinson

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.
November 5, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP975-CR Cir. Ct. No. 2020CF228

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GILLIE ROBINSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Calumet County: JEFFREY S. FROEHLICH, Judge. Affirmed.

Before Neubauer, P.J., Gundrum, and Grogan, 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).

¶1 PER CURIAM. Gillie Robinson appeals from a judgment entered
following his guilty pleas to stalking resulting in bodily harm contrary to WIS. STAT.
No. 2024AP975-CR

§ 940.32(3)(a) (2023-24)1 (Count 1), felony intimidation of a victim contrary to
WIS. STAT. § 940.45(3) (Count 4), and possession of a firearm by a felon convicted
out of state contrary to WIS. STAT. § 941.29(1m)(b) (Count 5), all as a repeater (WIS.
STAT. § 939.62(1)(b)-(c)). He also appeals from an order denying his
postconviction motion seeking an amendment to his sentence on the ground that the
circuit court erroneously considered sentence credit in ordering that his sentences in
this matter run consecutive to, rather than concurrent to, his Kenosha County
sentences.2 Based upon our review of the briefs and Record, we affirm.

¶2 In October 2020,3 the State charged Robinson with the following
seven counts, all as a repeater: (1) stalking resulting in bodily harm (WIS. STAT.
§ 940.32(3)(a)); (2) stalking—use of a dangerous weapon (§ 940.32(3)(c));
(3) misdemeanor battery (WIS. STAT. § 940.19(1) (2019-20));4 (4) felony
intimidation of a victim (WIS. STAT. § 940.45(3)); (5) possession of a firearm by an
out-of-state felon (WIS. STAT. § 941.29(1m)(b)); (6) disorderly conduct (WIS. STAT.
§ 947.01(1)); and (7) telephone harassment (WIS. STAT. § 947.012(1)(a)). Because
the majority of the counts stemmed from a prior romantic relationship, all but two
of the charges—Counts 5 and 6—initially carried a domestic abuse designation.
Robinson reached an agreement with the State and subsequently pled guilty to

1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.
2
Kenosha County Circuit Court Case Nos. 2019CF1157 and 2019CM1225.
3
The State filed an Amended Complaint in December 2020. The State also filed an
Amended Information in April 2022 to clarify that Count 5, possession of a firearm as a repeater,
was based on an out-of-state conviction. All subsequent references to the Complaint or Information
are to the Amendments unless otherwise noted.
4
WISCONSIN STAT. § 940.19(1) (2019-20) has since been renumbered to WIS. STAT.
§ 940.60(1). See 2025 Wis. Act 24, § 5.

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No. 2024AP975-CR

Counts 1, 4, and 5, all as a repeater, and the remaining counts were dismissed and
read in at sentencing. The domestic abuse designations were withdrawn on all
counts at the State’s request.

¶3 Pursuant to the plea agreement, the State argued for a total of six years
of initial confinement and six years of extended supervision.5 Robinson argued for
one year of initial confinement on both Counts 1 and 4 and for 18 months of initial
confinement on Count 5 with all counts running concurrent for a total of 18 months
initial confinement. He also requested credit for time served.

¶4 Following argument, the circuit court noted there were multiple
factors it was to consider at sentencing including “three main factors”—“the gravity
or seriousness of the crimes,” Robinson’s character, “and the need to protect the
public”—and sentenced Robinson to two years of initial confinement and two years
of extended supervision on each count with each count running consecutive to the
others. In doing so, the court noted the Pre-Sentence Investigation Report (PSI)
recommended a similar sentence as the State, and it further explained that “all three
of these felonies [are] serious violations” and that due to “the gravity of the
offenses,” Robinson’s character, “and the ongoing need to protect the public[,]” the
sentence imposed was “the minimum amount necessary[.]”

¶5 Near the end of the sentencing hearing, the circuit court acknowledged
that Robinson “probably [has] fairly substantial credit” for time served; however,
due to time constraints, it did not determine the sentence credit at the hearing and
requested written submissions regarding the appropriate amount. At that time, the

5
The plea agreement indicated the State would recommend two years of initial
confinement and two years of extended supervision on both Counts 1 and 4 to run concurrent and
an additional four years of initial confinement and fours years of extended supervision on Count 5
to run consecutive to the sentences for Counts 1 and 4.

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No. 2024AP975-CR

State questioned whether the sentences in this matter would run concurrent or
consecutive to Robinson’s sentences in the Kenosha County cases, and the court
noted that because “[i]t may come into play when calculating the credit, … the Court
will indicate these sentences [are] to be consecutive to any other sentence.” In a
later written decision, the court ordered that the Judgment of Conviction reflect 246
days of sentence credit.

¶6 Robinson thereafter filed a motion for postconviction relief requesting
that the circuit court modify his sentences to run concurrent to his Kenosha County
cases and amend the Judgment of Conviction to reflect 424 days of sentence credit.
Robinson based his argument on the court’s recognition at the sentencing hearing
that Robinson “probably [has] fairly substantial credit here” and more specifically,
on its ensuing statement that “[i]t may come into play when calculating the credit,
so the Court will indicate these sentences [are] to be consecutive to any other
sentence.” According to Robinson, this latter statement established that the court
had improperly considered his sentence credit in imposing the sentences here
consecutive to the Kenosha County cases and cited to WIS. STAT. § 973.155(1) and
State v. Walker, 117 Wis. 2d 579, 345 N.W.2d 413 (1984), among other cases, in
support. He further argued that the “narrow exception” set forth in State v. Fenz,
2002 WI App 244, 258 Wis. 2d 281, 653 N.W.2d 280, did not apply. The State,
while “agree[ing] that Walker is the relevant case for consideration for [Robinson]’s
argument,” argued that Walker was distinguishable because here, the court applied
the proper procedure by first determining the appropriate sentence and then
determining and applying the amount of sentence credit due. The State further
argued that Robinson had taken the court’s comments out of context and asserted
instead that the court’s comments were made in reference to the fact that “[t]he
Court needed to determine whether the sentences were going to be concurrent or

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No. 2024AP975-CR

consecutive [to the Kenosha County cases] in order for the proper sentence credit
calculation.”

¶7 The circuit court denied Robinson’s postconviction motion in a
written decision on the basis that it had properly applied Walker’s sentence credit
procedure. The court first explained it had reviewed the sentencing hearing
transcript and confirmed it had informed Robinson of the primary factors it would
be considering (gravity/seriousness of the offense, Robinson’s character, and
protecting the public), “analyzed the seriousness of the offenses utilizing various
factors,” and “discussed the PSI recommendation[.]” It then explained that: (1) after
imposing the sentence, no time remained during the hearing to calculate and apply
the amount of sentence credit Robinson was entitled to; (2) its comments that
Robinson was due “fairly substantial [sentence] credit” and that the parties needed
to know whether the sentences were concurrent or consecutive to the Kenosha
County cases in order to calculate the proper amount of sentence credit were both
made after it had already imposed the sentence; and (3) because the amount of credit
due was not known at that time, the amount of credit was not “take[n] … into
consideration at sentencing.” Robinson appeals.

¶8 Circuit courts have considerable discretion in fashioning an
appropriate sentence, including in determining whether to impose consecutive or
concurrent sentences, and we review sentencing decisions under the erroneous
exercise of discretion standard. State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535,
678 N.W.2d 197; State v. Davis, 2005 WI App 98, ¶27, 281 Wis. 2d 118, 698
N.W.2d 823; WIS. STAT. § 973.15(2)(a). We also review a circuit court’s
application of sentence credit under the erroneous exercise of discretion standard.
See Fenz, 258 Wis. 2d 281, ¶¶6-7.

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No. 2024AP975-CR

¶9 The erroneous exercise of discretion standard likewise applies to our
review of a circuit court’s decision to grant or deny a motion for sentence
modification. See State v. Noll, 2002 WI App 273, ¶4, 258 Wis. 2d 573, 653
N.W.2d 895 (“We review a motion for sentence modification by determining
whether the sentencing court erroneously exercised its discretion in sentencing the
defendant.”). In reviewing such decisions, “we are obliged to search the record to
determine whether in the exercise of proper discretion the sentence imposed can be
sustained.” McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971); State
v. Taylor, 2006 WI 22, ¶21, 289 Wis. 2d 34, 710 N.W.2d 466 (we may consider
“the facts on record, and the court’s articulated reasoning in the sentencing transcript
and the postconviction order”). “A circuit court erroneously exercises its discretion
when it bases its decision on a misstated fact or an incorrect view of the law.” See,
e.g., State v. Warbelton, 2009 WI 6, ¶17, 315 Wis. 2d 253, 759 N.W.2d 557; Taylor,
289 Wis. 2d 34, ¶17.

¶10 Robinson asserts that the circuit court improperly considered sentence
credit as a factor when it imposed sentences consecutive to, rather than concurrent
with, his Kenosha County cases and that he is therefore entitled to sentence
modification. We disagree.

¶11 Pursuant to WIS. STAT. § 973.155(1)(a), “[a] convicted offender shall
be given credit toward the service of his … sentence for all days spent in custody in
connection with the course of conduct for which sentence was imposed.” In
applying a defendant’s sentence credit, a circuit court is to first impose the sentence
and then determine the amount of credit to be applied. See Klimas v. State, 75
Wis. 2d 244, 250-52, 249 N.W.2d 285 (1977) (explaining that the Fourteenth
Amendment requires sentence credit and setting forth the process for courts to
follow in applying credit to sentence); Walker, 117 Wis. 2d at 583, 586 (citing

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No. 2024AP975-CR

Klimas and stating that a court is to first “determine an appropriate sentence, then
determine the time spent in custody, and, finally, credit that time against the
sentence imposed”). Section 973.155(2) codifies this process: “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.” Courts are to follow this procedure because “time
previously served should not be a factor in the exercise of sentencing discretion
because such credit is a constitutional right … which exists independently of what
the trial judge determines to be appropriate punishment for a given offense.”
Walker, 117 Wis. 2d at 586. There are, however, circumstances in which a court
may properly consider pending sentence credit in determining an appropriate
sentence. See Fenz, 258 Wis. 2d 281, ¶¶10-11 (explaining that consideration of
sentence credit was appropriate “[i]n order to accomplish [the court’s] very specific
incarceration goal” of rendering Fenz eligible for a “program [that] required at least
six years incarceration”).

¶12 Having reviewed the Record and the parties’ arguments on appeal, we
are satisfied that the circuit court followed the proper procedure as set forth in cases
such as Klimas and Walker and that the court did not improperly consider
Robinson’s sentence credit in imposing Robinson’s sentences consecutive to those
in the Kenosha County cases. First, the court, after identifying the three primary
factors it was to consider in imposing sentence—“the gravity or seriousness of the
crimes,” Robinson’s character, “and the need to protect the public”—commented
that “all three of these felonies [are] serious violations,” detailed Robinson’s history,
and explained that based on the factors it was to consider, “a prison sentence is
entirely appropriate[.]” The court immediately thereafter imposed sentence on each

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No. 2024AP975-CR

of the counts. Importantly, the court did not discuss sentencing credit prior to
imposing the sentences.

¶13 Next, and after imposing sentence, the circuit court went on to
acknowledge that Robinson “has probably fairly substantial credit here” but
explained that due to time constraints, it would be unable to determine the specific
amount of credit due at the sentencing hearing. It therefore requested that the parties
“submit something in writing” regarding the amount of credit the parties believed
Robinson was entitled to, and it was within the context of this discussion that the
statement Robinson challenges on appeal arose. Specifically, when the State asked
for clarification as to whether the sentences imposed in this matter would run
“[c]oncurrent or consecutive to the Kenosha cases[,]” the court stated that because
“[i]t may come into play when calculating the credit, … the Court will indicate these
sentences [are] to be consecutive to any other sentence.” Finally, after the parties
submitted their respective written positions regarding the amount of credit due, the
court found that Robinson was entitled to 246 days and said that amount was to be
reflected on the Judgment of Conviction.

¶14 Contrary to Robinson’s belief that the circuit court’s statement that
“calculating the [sentence] credit” “may come into play” establishes that the court
improperly considered the fact that credit was due in deciding to impose these
sentences consecutive to the Kenosha County cases, it is clear that when taken in
context of the sentencing hearing and Record as a whole, the court was clarifying
information the parties needed in order to properly calculate the amount of credit
each believed to be due to Robinson. Without such clarifying information, the
parties would have been unable to submit accurate position statements in the
requested written submissions regarding the amount of credit to be reflected in the

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No. 2024AP975-CR

Judgment of Conviction. See WIS. STAT. § 973.155(2).6 Moreover, as the court
noted in its written decision denying Robinson’s postconviction motion, at the time
it imposed the sentences to run consecutive to the Kenosha County cases, it was
unaware of any actual amount of credit due and that it had imposed the sentences to
be “consecutive to any other case for the same reasons they were ordered
consecutive to each other.” Those reasons, as set forth at the sentencing hearing and
as noted above, were due to the seriousness of the offenses, Robinson’s character
and history, and the need to protect the public.

¶15 As a final matter, we note that the circuit court’s challenged comment
and the sentence imposed are clearly distinguishable from cases such as Struzik v.
State, 90 Wis. 2d 357, 279 N.W.2d 922 (1979), and Walker, 117 Wis. 2d 579, in
which the respective courts clearly considered the amount of credit due in imposing
sentence. In Struzik, for example, our supreme court concluded that the circuit court
had erroneously exercised its discretion in imposing sentence where it was clear that
the “five years and 14 days” sentence was imposed to account for the 14 days of
sentence credit the court had previously been aware was due. Struzik, 90 Wis. 2d
at 367. As the Struzik court explained, “[t]he peculiar length of the sentence
transparently reveals that the trial court added to the appropriate sentence the time
already served, so that the sentence after the application of the credit would still
constitute the sentence originally determined.” Id. This was contrary to “the
procedure outlined in Klimas” as the Struzik circuit court first determined the
amount of credit due and then determined the sentence and applied the time served.

6
Robinson himself is clearly aware that knowing whether the sentences were concurrent
versus consecutive to the Kenosha County sentences had the potential to make a difference in
calculating the amount of credit to be applied, as his appellate briefs detail the amount of additional
credit he believes would be available to him if the sentences were modified to run concurrent to the
Kenosha County cases.

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No. 2024AP975-CR

Struzik, 90 Wis. 2d at 367-68. Similarly, in Walker, the supreme court determined
that the circuit court had “failed to follow the proper procedure in imposing the
sentence” because it had considered the amount of time served in imposing
sentence. Walker, 117 Wis. 2d at 584. There, however, the supreme court
concluded that “the underlying sentence was valid” and simply “modif[ied] it to
bring it into conformity with” WIS. STAT. § 973.155. Walker, 117 Wis. 2d at 584.

¶16 Here, the circuit court followed the proper procedure—first imposing
sentence, then determining how many days of sentence credit were due, and finally
including the amount of credit due in the Judgement of Conviction—and as
explained, Robinson has otherwise failed to establish that the court improperly
considered the amount of sentence credit due in imposing his sentence.
Accordingly, because the court did not err, Robinson is not entitled to sentence
modification, and we therefore affirm.

By the Court.—Judgment and order affirmed.

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

10